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Craft v. National Park Service

FLETCHER, Circuit Judge: Clifton Craft, Jack Ferguson, and William Wilson (“appellants”) appeal the district court’s order affirming the assessment of civil penalties by the National Oceanic and Atmospheric Administration (“NOAA”) for violations of the Marine Protection, Research, and Sanctuaries Act. NOAA assessed the penalties following a four week administrative trial, in which appellants were found to have violated NOAA regulations protecting the seabed and historic resources of the Channel Islands National Marine Sanctuary. We have jurisdiction and we affirm. I The Marine Protection, Research, and Sanctuaries Act, 16 U.S.C. §§ 1431-1445a, provides for the establishment of marine sanctuaries to protect important and sensitive marine areas and resources of national significance. Id. § 1431; S.Rep. No. 595, 100th Cong., 2d Sess. 1 (1988), reprinted in, 1988 U.S.C.C.AN. 4387. Pursuant to this law, NOAA designated the Channel Islands National Marine Sanctuary (“CINMS”) in 1980. The Channel Islands National Marine Sanctuary, 45 Fed.Reg. 65,198 (Oct. 2, 1980). The CINMS includes the marine waters surrounding several islands off the coast of California out to a distance of six nautical miles from the islands. 15 C.F.R. § 935.3. To protect resources within the CINMS, NOAA has promulgated regulations which prohibit activities that might adversely affect sanctuary resources, including hydrocarbon operations, the discharge or deposit of substances, commercial vessel traffic, and the removal or damage of cultural or historical resources. 15 C.F.R. §§ 935.6 & 935.7. Activities that are not specifically prohibited are permitted. 15 C.F.R. § 935.5. The regulations at issue in this appeal provide, in relevant part: [T]he following activities are prohibited within the Sanctuary ... (2) Alteration of, or construction on, the seabed. Except in connection with the laying of any pipeline as allowed by § 935.6, within 2 nautical miles of any Island, no person shall: (i) Construct any structure other than a navigation aid, or (ii) Drill through the seabed, or (iii) Dredge or otherwise alter the seabed in any way, other than (A) To anchor vessels, or (B) To bottom trawl from a commercial fishing vessel. 15 C.F.R. § 935.7(a)(2) (emphasis in original and added). The statute authorizes civil penalties for the violation of these regulations; criminal penalties are not authorized. 16 U.S.C. § 1437 (Supp.1994). Appellants are members of a diving club that took a trip on the boat ‘Vision” to the CINMS in October 1987. The club members participated in dives at four shipwrecks within the CINMS. Two National Park Service rangers were on board the Vision and witnessed violations of CINMS regulations by members of the diving club. Based on the rangers’ testimony and other evidence, NOAA assessed civil penalties against appellants for violations of § 935.7(a)(2) (iii). Following a four week administrative trial, the ALJ concluded that appellants had violated § 935.7(a)(2)(3ii) and recommended assessment of the penalties sought by NOAA. The ALJ specifically found that appellants removed artifacts from the shipwrecks and “excavated” the seabed with hammers and chisels. The ALJ found that both Craft and Wilson repeatedly hammered at the seabed and that Ferguson admitted that one site looked like a minefield due to the divers’ activities. The.ALJ also found that the alteration to the seabed was sufficiently extensive that the sites could be located days after the divers left the site. NOAA adopted the ALJ’s findings and recommendations. Appellants subsequently filed an action in district court, challenging NOAA’s authority to impose the civil penalties on the grounds that the regulation in question is unconstitutionally overbroad and vague. The district court rejected these contentions and granted the government’s motion for summary judgment. Appellants timely appealed. Because appellants raise a legal challenge involving the construction of a federal law and its application to undisputed facts, our review is de novo. United States v. Doremus, 888 F.2d 630, 631 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 752, 112 L.Ed.2d 772 (1991). II Appellants first argue that the regulation is overbroad. The overbreadth doctrine requires that the enactment reach “a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” United States v. Austin, 902 F.2d 743, 744 (9th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 200, 112 L.Ed.2d 161 (1990) (internal quotations omitted); see also Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Because appellants do not claim that any constitutional or fundamental right is prohibited by the regulation in question, their overbreadth challenge must fail. See Austin, 902 F.2d at 744-45 (no overbreadth challenge under Archaeological Resources Protection Act, which prohibits excavation of archaeological resources on public lands). III Appellants also argue that 15 C.F.R. § 935.7(a)(2)(iii) is unconstitutionally vague as applied to their activities. Appellants do not raise a facial challenge. “To pass constitutional muster against a vagueness attack, a statute must give a person of ordinary intelligence adequate notice of the conduct it proscribes.” United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 829 (9th Cir.1989); see also Austin, 902 F.2d at 745. Thus, a statute’s application might violate the constitutional mandate against vagueness if its terms are not sufficiently clear. 594,464 Pounds of Salmon, 871 F.2d at 829. We do not apply this standard mechanically, however. Instead, various factors affect our analysis. The degree of vagueness tolerated by the Constitution depends in part on the nature of the enactment: “[a] statute providing for civil sanctions is reviewed for vagueness -with somewhat greater tolerance than one involving criminal penalties” because the consequences of imprecision are less severe. Id. (internal quotations omitted); see also Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94; Big Bear Super Market No. 3 v. I.N.S., 913 F.2d 754, 757 (9th Cir.1990). In addition, a scienter requirement may mitigate vagueness. Finally, “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights,” in which case a more stringent vagueness test applies. Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94; Doremus, 888 F.2d at 635. In light of these principles, we conclude that 15 C.F.R. § 935.7(a)(2)(iii) is not unconstitutionally vague as applied to appellants’ excavation activities. At the outset, we note that the regulation in question provides only for civil — and not criminal — penalties and does not inhibit the exercise of constitutionally protected conduct. Consequently, the Constitution tolerates a greater degree of vagueness in the regulation. Even more significant, however, is our conclusion that the regulation by its terms clearly prohibits appellants’ activities. With two exceptions, the regulation prohibits “dredg[ing] or otherwise alterfing] the seabed in any way.” 15 C.F.R. § 935.-7(a)(2)(iii) (emphasis added). The word “alter” extends broadly to activities that “modify” the seabed, see Webster’s II New Riverside Universal Dictionary, and the language “in any way” reinforces our understanding that the term “alter” applies to a broad range of conduct. There can be no question but that this language prohibits the excavation activities in which appellants were engaged. E.g., Austin, 902 F.2d at 743-45 (criminal provision that prohibits “excavating], removing], damaging], or otherwise altering] or defacing] any archaeological resource located on public lands or Indian lands” not unconstitutionally vague as applied to excavation of obsidian weapons and tools); Doremus, 888 F.2d at 635-36 (criminal provision that prohibits “[d]amaging any natural feature or other property of the United States” not unconstitutionally vague as applied to chopping down live trees on Forest Service land). Appellants argue that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” They suggest that because the term “altering” follows the terms “dredging,” “construction,” and “laying of pipeline,” it must be read to proscribe only major industrial and commercial impacts on the seabed. This principle of statutory construction is inapplicable, however, because § 935.-7(a)(2)(iii) is not merely a general prohibition preceded by specific illustrative terms. Instead, the regulation includes two specific exceptions to the prohibition on “altering”: (1) alterations that occur when anchoring vessels; and (2) bottom trawling from a commercial fishing vessel. 15 C.F.R. § 935.-7(a)(2)(iii)(A) & (B). Moreover, contrary to appellants’ contentions, the existence of listed exceptions to the prohibition on alterations further suggests that all alterations other than those that are specifically excepted are prohibited. Appellants also rely on NOAA’s Final Environmental Impact Statement (“FEIS”) to argue that the regulations are unconstitutionally vague. They note that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, an activity that has a major effect on the seabed, and argue that the FEIS, as the only prior agency interpretation of the regulation in question, is entitled to substantial deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Although appellants are correct that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, appellants’ argument is unavailing. As we have previously noted, the regulatory language of § 935.7(a)(2)(iii) broadly prohibits alterations “of any kind.” Even if NOAA did not originally consider whether this regulation would apply to activities such as hammering at the seabed, the regulatory language is sufficiently broad to provide fair warning to the public that such activities are prohibited. See Hoffman Estates, 456 U.S. at 498, 102 S.Ct. at 1193; Doremus, 888 F.2d at 635. Moreover, the FEIS is not a definitive agency interpretation of the scope of the regulations in question. Instead, an FEIS is intended to be a detailed statement of the significant environmental effects of the regulation. E.g., Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir.1985). Its purpose is to provide the agency with sufficiently detailed information to enable it to decide whether to proceed on a project in light of potential environmental consequences and to inform the public of the potential environmental impacts of the proposed enactment. Id. Because the FEIS is not intended to provide the public with a definitive statement of all activities that might fall within the regulation’s prohibitions, its terms do not limit our construction of the regulation. As a final matter, there can be no doubt that appellants were aware that their activities were prohibited. The ALJ found that Ferguson announced to the group of divers that the shipwrecks were located in a federal reserve and were protected. At one of the shipwrecks Ferguson announced that removing objects from the site was illegal and that an underwater alarm would alert the group if a National Park Service patrol approached. The ALJ concluded that appellants “set out with their picks, hammers ... and other wreck raiding paraphernalia, fully intending to remove objects from these wrecks in the closed area within the Sanctuary, and that is what they did.” Given these undisputed facts, appellants’ claims that they lacked fair warning that their actions were prohibited ring hollow. See United States v. Ellen, 961 F.2d 462, 467 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 217, 121 L.Ed.2d 155 (1992); United States v. Clinical Leasing Serv., 925 F.2d 120, 123 (5th Cir.), cert. denied, — U.S.-, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991). IV We hold that § 935.7(a)(2)(iii) is neither overbroad nor unconstitutionally vague as applied to appellants’ conduct. The order of the district court is AFFIRMED. . Penalties were also assessed against appellants Ferguson and Wilson pursuant to 15 C.F.R. § 935.7(a)(5), which prohibits any person from "removpng] or damag[ing] any historical or cultural resource." Section 935.7(a)(5) also served as the sole basis for assessing penalties against plaintiff-appellants Michael King, Thomas Stocks, and Donald Jemigan. Appellants do not challenge the constitutionality of § 935.7(a)(5) on appeal to this court. . Appellants also argued that they have a preexisting right to perform salvage activities in the CINMS and that the regulations impermissibly restrict their rights under admiralty law principles to engage in the underlying activities. These claims were rejected by the district court. . Appellants’ attempts to characterize their activities as minimally harmful fanning of sediment and manual hammering are misleading. As noted above, the AU found that appellants' hammering and chiseling activities were "excavations” that resulted in identifiable scars on the seabed. These factual findings have not been challenged on appeal.

Conservation Law Foundation of New England, Inc. v. Secretary of the Interior

CAFFREY, Senior District Judge. The Conservation Law Foundation of New England, Inc. (“CLF”) appeals from the district court’s ruling upholding the validity of the National Park Service’s 1985 Management Plan (“the 1985 Plan”). The 1985 Plan allows for the restricted use of off-road vehicles (“ORVs”) on the Cape Cod National Seashore (“the Seashore”). CLF contends that ORV use under the 1985 Plan violates the Cape Cod National Seashore Act, 16 U.S.C. §§ 459b et seq., and Executive Order 11644, which deals with ORV use on public lands. We affirm the district court’s ruling. I. FACTS AND PRIOR PROCEEDINGS Congress enacted the Cape Cod National Seashore Act (“the Seashore Act”) in 1961, establishing the Seashore as part of the National Park System. The Seashore includes 48 miles of ocean front and bayside beaches, encompassing land and water within the towns of Chatham, Orleans, Eastham, Wellfleet, Truro, and Province-town. The National Park Service maintains six Seashore beaches and provides facilities for a number of other recreational activities, including boating, fishing, bicycling, and horseback riding. At the time the Seashore Act was enacted, limited ORV use existed on the Seashore. The National Park Service began to regulate such use in 1964, as the Seashore started to become one of the major ORV recreational areas in New England. By 1974, many miles of ORV trails covered the Seashore. In that year, the Park Service contracted with the University of Massachusetts to conduct a study (“the U.Mass. Study”) on the effects of ORV use on the Seashore’s ecosystems. The results of the five-year study were published in thirteen volumes, and documented certain adverse ecological effects resulting from ORV travel on the Seashore. In response to the findings of the U.Mass.Study, the National Park Service promulgated new regulations (“the 1981 Plan”) restricting ORV use on the Seashore. Under the 1981 Plan, all tidal flats and salt marshes were closed to ORV travel. All upland areas and dune trails were also closed, except for an access route to be used by commercial dune taxis and cottage residents, and an emergency bypass route. Other significant restrictions were also created. Following adoption of the 1981 Plan, ORV travel on the Seashore decreased considerably. CLF filed this suit seeking to enjoin implementation of the 1981 Plan, naming as defendants the Secretary of the Interior, the director of the National Park Service, the Acting Regional Director of the National Park Service, and the Superintendant of the Cape Cod National Seashore. CLF argued that the 1981 Plan would cause significant damage to the coastal ecosystem and impermissible conflicts between ORV travel and other recreational activities on the Seashore, in violation of the Seashore Act and Executive Order 11644. The district court denied CLF’s request for in-junctive relief, but remanded the 1981 Plan to the Secretary for additional findings regarding whether in relation to other protected uses of the Seashore ORV use meets the definition of “appropriate public use” as set forth in the Act. Conservation Law Foundation of New England, Inc. v. Clark, 590 F.Supp. 1467, 1489 (D.Mass.1984) (“CLF I”); 16 U.S.C. § 459b-6(b)(1). On remand, the National Park Service conducted a survey of Seashore visitors to document their reactions to ORV use. The results suggested that only a small number of such visitors oppose ORV use on the Seashore or claim to be displaced by the vehicles. The Park Service also requested and obtained an opinion from the Northeast Regional Solicitor of the Department of the Interior on the statutory requirements for “appropriateness.” The Regional Solicitor advised the defendants that ORV use at the Seashore is not an inappropriate public use per se within the meaning of 16 U.S.C. § 459b-6(b)(1). The National Park Service adopted an Amended Management Plan (“the 1985 Plan”) in August of 1985 further restricting ORV use at the Seashore. CLF then amended its complaint to challenge the 1985 Plan, and moved for summary judgment on the issue of appropriateness under the Seashore Act. CLF also requested the district court to reconsider its prior order and findings regarding ecological damage. The defendants then moved for summary judgment to uphold the validity of the 1985 Plan. The district court granted defendants’ motion, ruling that the Secretary’s decision to adopt the 1985 Plan was not arbitrary, capricious or an abuse of discretion, and therefore must be upheld. The district court found that ORV use under the 1985 Plan represents an appropriate public use of the Seashore in accordance with Section 7 of the Seashore Act. The court also found that the 1985 Plan “as implemented and enforced, effectively protects] the ecology of the Seashore and does not adversely affect the Seashore’s natural, scenic and aesthetic values.” Conservation Law Foundation of New England, Inc. v. Hodel, No. 81-1004, slip op. at 19 (D.Mass. June 28, 1988) (“CLF II”). CLF appeals from the district court ruling on both the appropriateness and ecological damage issues. II. STANDARD OF REVIEW The relevant standard of judicial review in the present case is governed by Section 10 of the Administrative Procedure Act (“the APA or Act”), 5 U.S.C. §§ 704 et seq. Under Section 10(e)(2)(A) of the APA, this Court must hold unlawful any agency action, findings and conclusions that we find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . .” 5 U.S.C. § 706(2)(A). If we find instead that a rational basis exists to support the agency’s decision, then we cannot disturb that decision. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974). It is well-established that this standard of review is highly deferential, whereby the reviewing court presumes the agency action to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185-86, 56 S.Ct. 159, 163-64, 82 L.Ed. 138 (1935); Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976). It is important to note that this Court cannot substitute its own judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823-24. Rather, we are required to affirm the agency’s decision if it is supported by a rational basis. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. at 290, 95 S.Ct. at 444. We cannot base our decision on what we would decide sitting in the place of the agency, but must determine whether the agency’s decision can withstand the arbitrary and capricious challenge on review. We emphasize that though this standard of review is a deferential one, it does not mean that the appellate process is merely superfluous. As the reviewing court, we must be assured that the agency decision was based on relevant factors, and we must make “substantial inquiry” into the facts. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d at 34-35 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 415, 91 S.Ct. at 823). III. THE SEASHORE ACT Section 7 of the Seashore Act provides for the development of the Seashore in certain limited circumstances. The statute provides in pertinent part: In order that the seashore shall be permanently preserved in its present state, no development or plan for the convenience of visitors shall be undertaken therein which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing or with the preservation of such historic sites and structures as the Secretary may designate: Provided, That the Secretary may provide for the public enjoyment and understanding of the unique natural, historic, and scientific features of Cape Cod within the seashore by establishing such trails, observation points, and exhibits and providing such services as he may deem desirable for such public enjoyment and understanding: Provided further, That the Secretary may develop for appropriate public uses such portions of the seashore as he deems especially adaptable for camping, swimming, boating, sailing, hunting, fishing, the appreciation of historic sites and structures and natural features of Cape Cod, and other activities of similar nature. 16 U.S.C. § 459b-6(b)(1) (emphasis added). Under the express language of Section 7, development of the Seashore is permissible where it is ecologically compatible and where it is for an “appropriate” public use. It is crucial to observe, therefore, that despite the “preserved in its present state” language, the statute does not impose a ban on all development of the Seashore. CLF argues that ORV use under the 1985 Plan violates Section 7 on the basis that such activity is not an “appropriate” public use of the Seashore. The district court held, however, that the Secretary’s decision to adopt the 1985 Plan was not arbitrary, capricious, or an abuse of discretion, and therefore must be upheld. We agree. After making substantial inquiry into the facts of this case, we conclude that a rational basis exists to support the Secretary’s decision that ORV use under the 1985 Plan is an appropriate public use of the Seashore. The 1985 Plan was adopted by the National Park Service after the district court remanded this case to the Secretary to consider more thoroughly the question of whether ORV use is an appropriate public use of the Seashore. The district court instructed the Secretary to consider the general appropriateness of ORV use in light of the Seashore Act and Executive Order 11644, the nature and extent of user conflicts caused by ORVs, and the adequacy of allocation of the Seashore between ORV and non-ORV users. The defendants considered these and other factors on remand and amended the Management Plan to further restrict ORV use. Based on this analysis, and guided by the Regional Solicitor’s opinion that ORV use at the Seashore is not an inappropriate public use per se, the Secretary found that limited ORV use under the 1985 Plan is consistent with the appropriateness requirement imposed by Section 7 for any development of the Seashore. CLF argues that the defendants applied the wrong standard in determining whether ORV use is an appropriate public use of the Seashore under Section 7. CLF maintains that the crucial factor the agency must consider is whether the contemplated use would protect the traditional scenic value of the Seashore. Plaintiff seems to argue, moreover, that the “preserved in its present state” language of Section 7 means that the Secretary cannot authorize any development of the Seashore that would alter the scenery from its condition at the time the Seashore Act was enacted. According to this view, because parts of the Seashore may look different now than they did in 1961 due to ORV travel, that activity must be inappropriate per se as a public use. Nothing in the plain language of Section 7 or in the relevant legislative history persuades us that the Secretary should be constrained by this interpretation of the statute. The district court explained in its June 28, 1988 Memorandum and Order granting defendants’ motion for summary judgment that the Secretary on remand engaged in a meaningful analysis of the appropriateness issue. CLF II, slip op. at 7-15. We agree, and need not repeat the thorough discussion provided by the district court. Before amending the Management Plan, the Secretary considered the factors that the court had set forth in its remand order. In addition and contrary to what plaintiff would have us believe, the Secretary considered the impact of ORV use on the aesthetic and scenic values of the Seashore. Amended Record of Decision at 21-30. Upon consideration of all of these relevant factors, the Secretary determined that ORV use under the 1985 Plan is an appropriate public use of the Seashore. Given the Secretary’s careful treatment of the issue on remand and the considerable restrictions placed on ORV use under the 1985 Plan, we cannot say that the Secretary’s decision has no rational basis or represents an abuse of discretion. Accordingly, we affirm the district court in granting defendants’ motion for summary judgment on the appropriateness issue under Section 7 of the Seashore Act. IV. EXECUTIVE ORDER 11644 Executive Order No. 11644, 37 Fed.Reg. 2877 (1972) (“Use of Off-Road Vehicles on Public Lands”), as amended by Executive Order No. 11989, 42 Fed.Reg. 26959 (1977), both reprinted in note following 42 U.S.C. § 4321 (1981), provides that ORV use on federal lands must be consistent with “the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands.” E.O. 11644, § 3(a). Section 3(a) of the Order requires that ORV trails be located in areas of the National Park System only “if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Id. § 3(a)(4). Executive Order 11989, the 1977 amendment to Executive Order 11644, further provides that the agency head must, whenever he determines that the use of off-road vehicles will cause or is causing considerable adverse effects on the soil, vegetation, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands, immediately close such areas or trails to the type of off-road vehicle causing such effects until such time as he determines that such adverse effects have been eliminated and that measures have been implemented to prevent future recurrence. E.O. 11644 § 9(a). These provisions, then, restrict the Secretary’s discretion regarding ORV use on the Seashore, along with Section 7 of the Seashore Act. CLF maintains that Executive Order 11644 requires the defendants to close the Seashore to ORV use because of alleged ecological damage and aesthetic degradation at the Seashore. CLF challenges the Secretary’s finding that current regulations on ORV use effectively protect the ecology of the Seashore and that limited ORV use does not adversely affect natural or scenic values at the Seashore. The plaintiff argues in particular that numerous violations of the National Park Service regulations cause considerable damage to the Seashore ecology and aesthetics, and require that a ban be imposed on ORV travel, unless the violations can be prevented. The Secretary determined that limited ORV use under the 1985 Plan does not adversely affect natural, aesthetic or scenic values at the Seashore. Amended Record of Decision at 80. We agree with the district court that there is adequate support for this determination. The defendants considered the protection of natural values in arriving at the current regulations restricting ORV use on the Seashore. The extent and location of ORV trails were set under the 1985 Plan consistent with these values. Though unregulated ORV travel on the Seashore might well threaten the natural or scenic values of the Seashore, the restrictions imposed under the 1985 Plan are substantial and were designed specifically to protect those values that would otherwise be at risk. The Secretary also determined that ORV use has caused no significant ecological damage at the Seashore since the adoption of the 1981 Plan. The district court correctly explained in its June 27, 1984 decision that an agency’s technical conclusions are to be upheld by a reviewing court where they are “founded on supportable data and methodology, and meet minimum standards of rationality.” CLF I, 590 F.Supp. at 1483 (quoting South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646, 655 & 665 (1st Cir.1974)). We agree with the district court that the defendants’ conclusion regarding effective protection of the Seashore ecology under the Management Plan is based on supportable data and methodology, and meets minimum standards of rationality. Accordingly, the defendants’ finding as to adequate ecological protection should not be disturbed. It may be true, as CLF points out, that ORVs caused certain adverse effects at the Seashore prior to the adoption of the 1981 Plan. Those effects were addressed in the U.Mass.Study. What is at issue, however, is whether any significant ecological damage has occurred under the regulations that have been adopted and enforced since that time. Persuasive expert testimony submitted by the government supports its position that restrictions imposed originally under the 1981 Plan and then supplemented by the 1985 Plan have created effective protection of the Seashore ecology. The closure of the dune trails under the 1981 Plan, moreover, caused a significant decline in ORV use of the Seashore. In addition, the National Park Service has added a number of rangers to improve patrol of the Seashore. Finally, with the adoption of the 1985 Plan the government placed greater restrictions on ORV use of the Seashore. Though some ecological damage to the Seashore may have occurred prior to adoption of the 1981 Plan, we believe sufficient evidence exists to support defendants’ conclusion that ORV use has caused no significant ecological damage at the Seashore since that time. We therefore affirm the district court on the issue of ecological protection under the 1981 and 1985 Plans. V. CONCLUSION A rational basis exists to support the defendants’ conclusion that ORV use under the 1985 Plan represents an appropriate public use of the Seashore. We cannot say, therefore, that present ORV use of the Seashore violates Section 7 of the Seashore Act. Furthermore, the defendants’ finding that current regulations restricting ORV use effectively protect the ecology of the Seashore is based on supportable data and methodology. That determination, therefore, cannot be disturbed. AFFIRMED. . The term "off-road vehicles” refers to vehicles that are capable of cross-country travel over natural terrain. These include jeeps, dune buggies, and other four-wheel drive vehicles. . Scientists with the National Park Service Cooperative Research Unit at the University of Massachusetts at Amherst conducted the comprehensive study. . The conclusions of the U.Mass.Study were published in a report entitled "The Impact of Offroad Vehicles on Coastal Ecosystems in Cape Cod National Seashore: An Overview." . The 1981 Plan was adopted by the Park Service on March 27, 1981, after a notice and comment period and two public hearings. . ORV use permits issued by the National Park Service dropped 26% during the first year under the 1981 Plan, and dropped an additional 11% by 1984. . The Massachusetts Audobon Society and the Sierra Club were also plaintiffs in the district court proceedings. CLF, however, was the only plaintiff to file a timely notice of appeal from the district court’s June 28, 1988 decision granting defendants’ motion for summary judgment. CLF filed its notice of appeal on July 7, 1988. . In ordering the Secretary to consider more carefully the question of whether ORV travel is an appropriate public use of the Seashore, the district court explained: [T]he Secretary's analysis must include, but is not limited to a consideration of: 1) the general appropriateness of ORV use under the relevant acts and executive orders; 2) the nature and extent of user conflicts within ORV zones established by the Plan, including a more systematic determination of the sentiments of Seashore users regarding ORV’s generally and as regulated under the Plan; and 3) the adequacy of the allocation of Seashore beaches between ORV and non-ORV users including a determination of whether ORV-free zones of sufficient size and quality have been provided for under the Plan. CLF I, 590 F.Supp. at 1489. The 1981 Plan was to remain in full force and effect pending the Secretary’s inquiry. . The National Park Service administered the survey during the summer and fall of 1984. Nearly 1,300 visitors were included in the survey. . The district court explained in its June 28, 1988 Memorandum and Order: Under the [1985] Plan, ORVs are limited to the ocean beach from the opening of Hatches Harbor around Race Point to High Head and may no longer travel from High Head to Coast Guard Beach. Also, the corridor is no longer open year-round, but is closed during the winter as well as when tides, beach configurations, or bird nesting make the route impassable. Finally, to protect embryonic dunes, the corridor itself has been narrowed, its boundaries located between a point ten feet seaward of the drift line and the berm crest. Conservation Law Foundation of New England, Inc. v. Hodel, No. 81-1004, slip op. at 3 (D.Mass. June 28, 1988). . For a description of limitations imposed under the 1985 Plan, see supra note 9. . The Secretary's decision regarding what areas would be left open to ORV use under the 1985 Plan was influenced by the agency’s attempt to minimize the effects of ORV use on the scenic values of the Seashore. This influence is evidenced by the "Scenic and Aesthetic Values" discussion in the Amended Record of Decision, and the actual location of ORV trails and areas under the 1985 Plan. . The district court determined that Executive Order 11644, as amended by Executive Order 11989, has the force and effect of law and is enforceable by CLF under APA review. CLF I, 590 F.Supp. at 1478. . See supra note 11. . The district court concluded that the restrictions on ORV use under the 1981 Plan demonstrated careful attention to the U.Mass.Study and that the Plan was generally faithful to that study. CLF I, 590 F.Supp. at 1480-81. . For example, the Affidavit of Dr. James R. Allen provides: During my visits to the Seashore I have observed that the vast majority of ORV users comply with the management plan. Moreover, it is my opinion that ORV induced geo-morphic impact on the beach is superficial and is overwhelmed (by several orders of magnitude) by the natural variability of the highly dynamic beaches at Race Point. Allen’s Affidavit at ¶ 11. Dr. Allen’s testimony points out serious deficiencies with the conclusions reached by CLF regarding the extent of current violations of ORV regulations at the Seashore and the damage allegedly caused by those violations. Allen’s Affidavit at ¶¶ 5-11. . The government mentions in its brief that the Park Service has increased its staff from 23 to 31 rangers since the adoption of the 1981 Plan. Brief for the Defendants-Appellees at 43.

Conservation Law Foundation of New England, Inc. v. Secretary of the Interior

BREYER, Circuit Judge (concurring). I agree with the panel that, given the statute’s proviso, one cannot reasonably read it as imposing an absolute ban on ORVs, particularly since many fishermen and campers like to use them. I also agree with the panel’s opinion; we cannot now say that the Interior Department’s regulations are “arbitrary, capricious” or an “abuse of discretion.” 5 U.S.C. § 706(2)(A). I add only that this latter question is quite a close one. The Conservation Law Foundation, in its brief, notes that recreational “vehicles are used by less than 2.5 percent of the summertime visitors to the Seashore The government, in its brief, says that it has set aside 8 miles, of 48 Cape Cod National Seashore beachfront miles, or 16 percent of the beach, for ORV use. Although it seems fairly obvious that those who use ORVs need a length of coastline in which to use them, it is also fairly obvious that their use is often incompatible with the quiet enjoyment of the seashore that the Cape Cod National Seashore Act contemplated the vast majority of visitors would seek. At some geographical point, reserving miles of coastline for ORVs would amount to taking too much from too many for the enjoyment of too few. We here hold only that, giving full and appropriate weight to the judgment of the administrators, we cannot say, on the basis of the record before us, that 16 percent actually crosses the line marked by the statutory word “arbitrary.”

California v. Watt

SNEED, Circuit Judge: This appeal concerns a dispute over the proposed sale by the United States Department of Interior of leases to drill for and extract oil and gas in the outer continental shelf (OCS) off the coast of California. Plaintiffs below were the State of California and various agencies within the state. Intervening as plaintiffs were various cities and counties in California (hereafter “local governments”). Plaintiffs in a companion case, which was consolidated with this one, were the Natural Resources Defense Council, the Sierra Club, Friends of the Earth, Friends of the Sea Otter, and the Environmental Coalition on Lease Sale 53 (hereafter “environmental groups”). Defendants in both cases below were James G. Watt, acting in his official capacity as Secretary of the Interior, the Department of Interior, Robert Burford, acting in his official capacity as Director of the Bureau of Land Management, and the Bureau of Land Management (BLM). Intervening as defendants in both actions were Western Oil and Gas Association (WOGA), a regional trade association of companies and individuals in the petroleum industry, and various oil companies that had submitted high bids on one or more tracts offered in Lease Sale No. 53. Plaintiffs claimed below that defendants violated five federal statutes in offering for competitive bidding certain oil and gas leases on tracts located in the Santa Maria Basin. Finding that there were no genuine issues of material fact in the two consolidated cases, the district court granted summary judgment to the plaintiffs on their claim based on the Coastal Zone Management Act (CZMA), granted summary judgment to defendants on the remaining issues, and dismissed the claims of the environmental groups for lack of standing. The court enjoined leasing of the disputed tracts and ordered the bids and deposits returned but stayed the effect of the latter order pending appeal. All parties appealed. We affirm in part, reverse in part, vacate in part, and stay in part. I. ISSUES ON APPEAL There are four issues on appeal which we state as follows: 1. CZMA Issue: Did the Secretary of Interior violate Section 307(c)(1) of the CZMA by selling oil and gas leases for the outer continental shelf without a determination of consistency with California’s coastal zone management plan? Our answer is that he did. 2. NEPA Issue: Did the Department of Interior violate the National Environmental Policy Act (NEPA) by failing to supplement the Environmental Impact Statement? Our answer is that it did not. 3. OCSLA Issue: Did the Secretary violate section 19 of the Outer Continental Shelf Lands Act (OCSLA) by refusing to accept the recommendations of the Governor of the State of California regarding Lease Sale 53? Our answer is that he did not. 4. Standing Issue: Do the environmental groups have standing to enforce the consistency determination provision of the CZMA? Our answer is that they do. II. STANDARD OF REVIEW. As already noted, summary judgment was granted by the district court on all issues. Our review is identical to that of the district court. Washington ex rel. Edwards v. Heimann, 633 F.2d 886, 888 n.1 (9th Cir. 1980). That is, we may affirm a summary judgment only if, viewing the evidence in the light most favorable to the party against whom it is granted, we find no genuine issue of material fact, and we find that the prevailing party is clearly entitled to judgment as a matter of law. Id. at 888; Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1300 (9th Cir. 1981). III. FACTS AND BACKGROUND While the facts and background of these cases are complex, they are thoroughly laid out in the district court opinion. California v. Watt, 520 F.Supp. 1359, 1365-68 (C.D.Cal. 1981). To aid the reader of this opinion, however, we shall summarize briefly the pertinent facts and background of these cases. The lease sale in dispute is Lease Sale 53, consisting of a maximum offering of 243 designated tracts of the OCS for mineral development. The tracts in Lease Sale 53 lie in five different basins off the coast of California, including the Santa Maria Basin. That basin extends generally from Point Sur in Monterey County in the north to Point Conception in Santa Barbara County in the south. During the course of decision-making on Lease Sale 53, the Department of Interior at various times proposed leasing within the Santa Maria Basin only and at other times within all five of the basins originally included. In November 1977, BLM issued a Call for Nominations for Lease Sale 53. The Call requested the petroleum industry to designate specific tracts on which it was interested in bidding if a sale were held. It also asked federal, state, and local governments, universities, environmental organizations, research institutions, and the public to identify specific tracts that they believed should be excluded from leasing or should be leased under particular restrictions due to conflicting resource values or environmental factors. In October 1978 the Department of Interior announced the tentative tract selection for Lease Sale 53. The Santa Maria Basin contained 115 of the 243 tracts involved in the sale. A draft Environmental Impact Statement (EIS) was released for public comment in April 1980. The draft EIS, which analyzed the environmental impacts in the five basins to be included in Lease SaletSSf was based on a reserve estimate oi 404 million barrels of oil for the Santa Maria Basin. In September, 1980, a final EIS was released. Shortly before its publication, on or about August 28, 1980, the United States Geological Survey made available revised resgrve estimatesdbr the Santa Maria Basin in the amount qf 794 million barrels of oil. The revised estimate-was incorporated in an addendum to the EIS. A Secretary Issue Document (SID), an internal document intended to aid the Secretary in making decisions concerning lease sales, was released in October 1980. The SID concerned the potential impact of Lease Sale 53 on the environment, and concluded that a supplemental EIS was not needed. On July 6, 1980, the California Coastal Commission requested that the Secretary submit a consistency determination at the time of the issuance of the proposed notice of sale. On October 16, 1980, the former Secretary of the Interior, Cecil D. Andrus, issued the proposed notice of sale for Lease Sale 53. The notice proposed leasing only within the Santa Maria Basin, the four other basins being deleted from the proposed sale. By letter of October 22, 1980, the Department of Interior notified the California Coastal Commission (CCC) of its “negative determination,” to the effect that the preleasing activities associated with Lease Sale 58 would have no “direct effects” on California’s coastal zone, and that as a consequence no consistency determination was necessary. In response to this negative determination, on December 16,1980, the CCC adopted a resolution that the deletion of 29 tracts in the northern portion of the Santa Maria Basin was necessary in order for Lease Sale 53 to be consistent with the California Coastal Management Plan. On December 24, 1980, Governor Edmund G. Brown, Jr. of California, responding to Secretary Andrus’ proposed notice of sale, recommended the deletion of 32 tracts located in the northern portion of the Santa Maria Basin. The new Secretary of Interior, James G. Watt, issued a revised proposed notice of sale for Lease Sale 53 on February 10,1981. The four basins previously deleted from the proposed sale by former Secretary Andrus were once more included in the sale. The revised notice continued to propose leasing in the Santa Maria Basin. In transmitting the revised proposal to Governor Brown, Secretary Watt requested recommendations pursuant to section 19 of the OCSLA, 43 U.S.C. § 1345. By letter dated April 7, 1981, Governor Brown submitted his recommendations concerning the revised Lease Sale 53. He reiterated his position that, based upon the balancing test of section 19, the northern 32 tracts in the Santa Maria Basin should be deleted from the sale. Enclosed with the letter detailing Governor Brown’s recommendations were comments and recommendations from various state agencies and local governments in California. On April 10, 1981, the Department of Interior issued a news release in which Secretary Watt announced that he planned to divide Lease Sale 53-into two sales, with the sale of the tracts in the Santa Maria Basin to be held in May 1981 and the sale of the remaining tracts to be postponed. The Secretary stated that his decision to lease the entire Santa Maria Basin was based on a finding of overriding national interest. The final notice of sale for Lease Sale 53, Santa Maria Basin, was published on April 27, 1981. By letter dated May 1, 1981, Secretary Watt notified Governor Brown of the rejection of California’s recommendations concerning the lease sale in the Santa Maria Basin, and provided a brief explanation of the basis for the rejection. On April 29, 1981, California sought an injunction in district court against the lease sale. The court, although it allowed bids on the tracts to be received and opened, on May 27, 1981, granted a preliminary injunction which prevents the Department of Interior from accepting or rejecting the bids or issuing leases on the disputed tracts. California and the local governments moved for summary judgment on their claim that Lease Sale 53 violated numerous statutes. Secretary Watt and the other federal defendants cross-claimed for summary judgment on the same issues. The response of the district court to these motions has already been indicated. We find that no genuine issue of material fact exists. The questions before us, therefore, are whether the parties prevailing below are clearly entitled to their judgments as a matter of law. We now turn to the four legal issues with which this appeal is concerned. IV. COASTAL ZONE MANAGEMENT ACT This issue concerns the application of CZMA Section 307(c)(1), 16 U.S.C. § 1456(c)(1), to the lease sale stage of outer continental shelf (OCS) oil, gas, and mineral development. Section 307(c)(1) reads: Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs. While it is conceded on appeal that this section does apply at the lease sale stage, the parties vigorously dispute whether Lease Sale 53 would have “direct effects” on California’s coastal zone. We hold that Lease Sale 53 would “directly affect” the state’s coastal zone. The district court so held and we agree. The federal appellants and oil companies (hereafter collectively referred to as “federal appellants”) propose a definition of “directly affecting” that limits the scope of direct effects from a lease sale to those effects that “are part of, or immediately authorized by, a lease sale.” See Brief For The Federal Appellants at 21-22; Brief of Appellants Western Oil & Gas Association at 27. Subsequent steps such as the promulgation of exploration or development plans are not direct effects of the lease sale, their argument runs, because separate consistency determinations are required at each of these later stages. It follows that a lease sale has no direct effects upon the coastal zone; such direct effects as there may be affect things other than the coastal zone. This definition and reasoning underlies the Secretary of Interior’s determination that no consistency determination is required. California, the local governments, and the amici curiae environmental groups (hereafter collectively referred to as “California”) propose a broader definition of “directly affecting,” encompassing effects of the lease sale that the lessor “reasonably anticipates.” Another formulation of this definition is that any activity having a functional interrelationship from an economic, geographic, or social standpoint with lands and waters in the coastal zone directly affects the coastal zone. The district court adopted this broad definition, holding that the federal appellants “cannot deny that leasing activities have consequences in the coastal zone by pointing to a series of events which occur after the leases are issued, but before the actual effects are realized.” California v. Watt, supra, 520 F.Supp. at 1379-80. We agree that the lease sale in this case directly affects the coastal zone. These direct effects of Lease Sale 53 on California’s coastal zone are detailed by the district court. Id. at 1371, 1380-82. We need not repeat them here. It is enough to point out that decisions made at the lease sale stage in this case establish the basic scope and charter for subsequent development and production. Prior to the sale of leases, critical decisions are made as to the size and location of the tracts, the timing of the sale, and the stipulations to which the leases would be subject. These choices determine, or at least influence, whether oil will be transported by pipeline or ship, which areas of the coastal zone will be exposed to danger, the flow of vessel traffic, and the siting of on-shore construction. Id. Under these circumstances Lease Sale 53 established the first link in a chain of events which could lead to production and development of oil and gas on the individual tracts leased. This is a particularly significant link because at this stage all the tracts can be considered together, taking into account the cumulative effects of the entire lease sale, whereas at the later stages consistency determinations would be made on a tract-by-tract basis under section 307(c)(3). The narrow definition of “directly affecting” urged upon us by the federal appellants would diminish the ability of the state to protect its coastal zone and to influence activities that were set in motion at the lease sale stage. A. Purpose of the CZMA This diminution would not be consistent with the purposes of the CZMA, which was enacted to promote the preservation of natural resources in the coastal zone. 16 U.S.C. § 1452(1). Under the Act, each coastal state has primary authority over the lands and waters within its three-mile coastal zone, to be exercised “in cooperation with Federal and local governments and other vitally affected interests.” 16 U.S.C. § 1451(i). A key element in the CZMA’s comprehensive plan is the voluntary adoption by each coastal state of a federally-approved coastal zone management plan, which must adequately consider the “national interest” and “the views of Federal agencies principally affected by such program.” 16 U.S.C. §§ 1455(c)(8), 1456(b). The Act requires the state’s plan to include “a planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing impacts from such facilities.” 16 U.S.C. § 1454(b)(8) (emphasis added). A quid pro quo for the state’s development of such a plan is that certain federal activities will be conducted consistently with the state’s plan. 16 U.S.C. § 1456(c). Thus, a major purpose of the CZMA is to avoid conflict and encourage cooperation between the federal and state governments in developing a comprehensive plan for long-term management of the resources in the coastal zone. 16 U.S.C. §§ 1451, 1452. To effectuate this purpose, the state must be permitted to become involved at an early stage of a significant and comprehensive activity, such as Lease Sale 53, that will eventually have an appreciable impact on the coastal zone. The narrow definition urged upon us by the federal appellants would preclude this early involvement. B. Legislative History Our approach is not inconsistent with the legislative history of the CZMA. Although, as the district court pointed out, the legislative history of this Act is “inconclusive,” 520 F.Supp. at 1371, it does lend support, when considered as a whole, to our approach. In 1972, the Conference Committee substituted the phrase “directly affecting the coastal zone” for “in the coastal zone,” in an apparent attempt to expand the scope of the provision. See id. No clue is given in 1972 as to how “directly” was to be interpreted. In 1976, in conjunction with amendments to CZMA sections other than 307(c)(1), the Senate Report noted: There is very little coordination or communication between Federal agencies and the affected coastal States prior to major energy resource development decisions, such as the decision to lease large tracts of the OCS for oil and gas. . .. Full implementation of the Coastal Zone Management Act of 1972 . . . could go far to institute the broad objectives of Federal-State cooperative planning envisioned by the framers of the act. S.Rep. No. 277, 94th Cong., 2d Sess. 3, reprinted in 1976 U.S.Code Cong. & Ad.News, 1768, 1770. In the Coastal Zone Management Improvement Act of 1980, Pub.L. No. 96-464, 94 Stat. 2060 (1980), Congress did not amend the section 307(c)(1) consistency provisions, but the reports of both the Senate and House Committees support a broad interpretation of “directly affecting.” See 520 F.Supp. at 1372-73. The Senate report stated that: intergovernmental coordination for purposes of OCS development commences at the earliest practicable time in the opinion of the Committee, as the Department of the Interior sets in motion a series of events which have consequences in the coastal zone. S.Rep. No. 783, 96th Cong., 2d Sess. 11 (1980). (Emphasis added). The House Committee specifically addressed the uncertainty that had arisen concerning the interpretation of the threshold test of “directly affecting” the coastal zone. H.R.Rep. No. 1012, 96th Cong., 2d Sess. 34-35, reprinted in 1980 U.S.Code Cong. & Ad.News 4382-83. The Committee offered two alternative definitions of the phrase “directly affecting:” (1) The threshold test applies “whenever a Federal activity [has] a functional interrelationship from an economic, geographic or social standpoint with a State coastal program’s land or water use policies.” Id. at 34, reprinted in 1980 U.S.Code Cong. & Ad.News at 4382. (2) The Federal consistency requirements should apply “when a Federal agency initiates a series of events of coastal management consequence.” Id. The House indicated its support of an “expansive interpretation of the threshold test,” id. at 35, reprinted in 1980 U.S.Code Cong. & Ad.News at 4383, and reiterated the Senate’s statement that consultation between federal and state agencies should occur “at the earliest practicable time.” Id. at 34, U.S.Code Cong. & Ad.News at 4382; see also S.Rep. No. 783, supra. We recognize that these post-enactment committee statements might not represent a view adopted by Congress after full deliberation and, in any event, are not conclusive. However, these statements must be given appropriate weight. See Andrus v. Shell Oil Co., 446 U.S. 657, 666 n.8, 100 S.Ct. 1932, 1938 n.8, 64 L.Ed.2d 593 (1980); Walt Disney Productions v. United States, 480 F.2d 66, 68 (9th Cir. 1973), cert. denied, 415 U.S. 934, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974). In the circumstances of this case we accord them substantial weight because they appear to us to serve better the purposes of the CZMA than would the narrower interpretation urged by the federal appellants. C. National Oceanic and Atmospheric Administration s In terpretation. Our approach does no violence to our obligation to pay deference to the appropriate agency’s interpretation of section 307(c)(1). The National Oceanic and Atmospheric Administration (NOAA) is the agency within the Department of Commerce charged with the responsibility of promulgating regulations for the CZMA. American Petroleum Institute v. Knecht, 456 F.Supp. 889, 908 (C.D.Cal.1978), aff’d, 609 F.2d 1306 (9th Cir. 1979). Its current view of the definition of “directly affecting” is unclear. Until May 1981, NOAA consistently took the position that pre-leasing activities were subject to consistency review, and favored a broad interpretation of “directly affecting.” See Watt v. California, supra, 520 F.Supp. at 1376-77. In 1978, NOAA stated that section 307(c)(1) was intended to apply to “all Federal actions which were capable of significantly affecting the coastal zone.” 43 Fed.Reg. 10,510-11 (1978) (emphasis added). Although NOAA deleted this definition in 1979 in response to a Department of Justice opinion taking issue with that portion of the definition, 44 Fed.Reg. 37,142 (1979), it reiterated the view that “Federal agencies are encouraged to construe liberally the ‘directly affecting’ test in borderline cases so as to favor inclusion of Federal activities subject to consistency review.” 44 Fed.Reg. 37,146-47 (1979). Along the same lines in 1980, NOAA noted: In our view Federal consistency requirements subject final notices of OCS sales to consistency determinations. This critical decision point in the OCS process influences tracts to be selected and stipulations to be imposed and thus sets in motion actions which will invariably affect coastal resources. Letter from NOAA to State Coastal Management Program Directors (April 9, 1980) (emphasis added). In May 1981, shortly after complaints were filed in the present case, NOAA filed a notice of proposed rulemaking defining “directly affecting” in a way more nearly consistent with, if not identical to, that urged on us by the appellants. 46 Fed.Reg. 26,658-59 (1981). According to the definition, a federal activity directly affects the coastal zone only: if the Federal agency finds that the conduct of the activity itself produces a measurable physical alteration in the coastal zone or that the activity initiates a chain of events reasonably certain to result in such alteration, without further required agency approval. Id. (emphasis added). In the comments to this notice, NOAA listed lease issuance as an example of an activity that would not be subject to a consistency determination because it does not directly affect the coastal zone. Id. at 26,660. On July 2, 1981, NOAA issued its notice of final rulemaking. In late July and early August, however, resolutions were introduced in both houses of Congress disapproving the new regulations. Cf. 16 U.S.C. § 1463a. After the district court decision in this case, and following a vote by the House Merchant Marine and Fisheries Committee to disapprove the regulations on October 16, 1981, NOAA suspended the effective date of the regulations and moved to withdraw them, explicitly acknowledging the negative reaction it had received from both Congress and the coastal states. 46 Fed.Reg. 50,937, 50,976 (1981). An agency’s interpretation of a statute, while not having the force of law, is entitled to deference if we can conclude that the regulation “implement[s] the congressional mandate in some reasonable manner.” United States v. Vogel Fertilizer Co., - U.S. -, 102 S.Ct. 821, 827, 70 L.Ed.2d 792 (1982), quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537 (1967); Bureau of Alcohol, Tobacco and Firearms v. FLRA, 672 F.2d 732, at 734-735 (9th Cir. 1982). This general principle of deference, while fundamental, only sets the framework for judicial analysis, United States v. Vogel Fertilizer Co., supra, 102 S.Ct. at 827, quoting United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 1716, 36 L.Ed.2d 528 (1973), and poses no obstacle in this case to our rejection of appellants’ approach. As indicated, NOAA’s short-lived narrow definition of “directly affecting” was first proposed during the pendency of this litigation, was specifically disapproved by some members and at least one Committee of Congress, was contrary to NOAA’s longstanding position on the matter, and may not reflect NOAA’s present view. To defer to such a passing phase in the appropriate agency’s interpretation would amount to obeisance to shadows and a flight from judicial responsibility. On the other hand, we acknowledge that NOAA’s earlier view that “directly affecting” should be liberally construed provides support to our holding that Lease Sale 53 must be accompanied by a section 307(c)(1) consistency determination. D. Consistency with Outer Continental Shelf Lands Act The federal appellants also claim that a definition of “directly affecting,” other than one substantially similar to NOAA’s aborted narrow view, is inconsistent with section 19 of the OCSLA. This section provides for Department of Interior consideration of state governors’ recommendations regarding “size, timing, or location” of lease sales. We acknowledge, as we must, that federal statutes should be construed in a consistent and harmonious manner. Only in this way can congressional intent be given its fullest expression. Get Oil Out! Inc. v. Exxon Corp., 586 F.2d 726, 729 (9th Cir. 1978). We find no conflict between our holding with respect to the scope of “directly affecting” as applicable to the facts of this case and the functions and purposes of the OCS-LA. The CZMA and the OCSLA focus on different concerns — the OCSLA on development of oil and gas resources, and the CZMA on environmental concerns. American Petroleum Institute v. Knecht, supra, 456 F.Supp. at 919. They impose on the federal government separate obligations owing to different parties, and are capable of co-existence. Their consistency is further supported by the “savings clause” in the OCSLA, which expressly provides: “[N]othing in this Act shall be construed to modify, or repeal any provision in the Coastal Zone Management Act of 1972.” 43 U.S.C. § 1866. We, therefore, conclude that Lease Sale 53 cannot proceed until the Secretary of Interior makes a determination that the proposed lease is consistent, to the maximum extent practicable, with the California coastal zone management plan. E. Placement of Final Authority to Determine That the OCS Lease Sale 53 is Consistent to the Maximum Extent Practicable To hold that the Secretary of Interior is required by CZMA § 307(c)(1) to make a consistency determination before going ahead with Lease Sale 53 unavoidably raises additional issues. Foremost among these is whether consistency to the maximum extent practicable of the federal activity with the approved state management program means simply conformity to the program in the manner deemed appropriate by the state concerned. The federal appellants insist that the district court, in effect, so held by enjoining the lease sale “until such time as defendants comply with the requirements of the Coastal Zone Management Act by conducting a consistency determination on the tracts at issue and by conducting all activities on these tracts in a manner consistent with California’s Coastal Management Plan.” '520 F.Supp. at 1389. Assuming arguendo that the district court did so hold, we here reject that interpretation of the CZMA. The statute does not provide that a state’s plan takes precedence when it would preclude the federal activity, or even that the federal activity must be as consistent with the plan as is possible. It only provides that the activity be consistent to the maximum extent practicable. The Act is not explicit with respect to the location of final authority to determine whether the required consistency exists. We believe such authority must reside in the Executive Branch of the federal government subject, of course, to such judicial review as is appropriate. To hold otherwise on the basis of silence, or at best attenuated inferences drawn from the language of Congress, weighs too lightly the interests of the Nation against that of a state. Our conclusion is supported by the language and structure of both the CZMA and the OCSLA, as well as the history of events leading to the enactment of the OCSLA. 1. CZMA. With respect to any plan for the exploration, development, and production stages, section 307(c)(3) of the CZMA sets out an elaborate procedure for dealing with disagreements between a coastal state and an applicant for a federal license or permit to conduct an activity affecting the coastal zone concerning the consistency of the federal activities and the state’s management program. Under this section, to obtain a federal license or permit the state must certify that the activity is consistent unless the Secretary of Commerce properly finds that the activity “is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security”. 16 U.S.C. § 1456(c)(3)(A)-(B) (emphasis added). This provision clearly precludes an irreversible state veto of OCS activity at the exploration, development, and production stages. The Secretary of Commerce is given the final say as to whether the activity is consistent with the objectives of the CZMA, and if not, whether it is otherwise necessary in the interest of national security. It would be anomalous for Congress to have provided the state with final authority unilaterally to nip these activities in the bud, by reason of the application of section 307(e)(1) to lease sales, in the face of its careful scheme in section 307(c)(3) to assure that a state cannot unilaterally stop the activity at later stages. We do not think it intended to so provide. 2. OCS History and the OCSLA. The history of the dispute concerning offshore resources supports our conclusion that a conclusive state veto was never intended over OCS oil and gas development. In 1953, to settle the long-standing dispute between the federal government and coastal states concerning control over offshore areas, Congress enacted the Submerged Lands Act, 43 U.S.C. §§ 1301-43. This “1953 Compromise” of the so-called Tidelands Oil Issue granted coastal states “title to and ownership of” submerged lands within three miles of the coast, the area referred to as the “coastal zone.” 43 U.S.C. §§ 1301(a), 1311(a). The federal government was given exclusive proprietary control over “the soil and seabed of the Continental Shelf” outside this three-mile zone. 43 U.S.C. §§ 1302,1332(a). The CZMA was not intended to change this division of control. Section 307(e) of the CZMA provides that: Nothing in this title shall be construed— (1) to diminish either Federal or state jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters. 16 U.S.C. § 1456(e). See also, H.R.Conf. Rep. No. 1544, 92d Cong., 2d Sess. 7, 12 (1972). Granting final veto power to coastal states would thwart the purposes of the OCSLA. As the Supreme Court has recently stated, “Congress primarily was concerned in enacting OCSLA to assure federal control over the Shelf and its resources.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 2877, 69 L.Ed.2d 784 (1981). In 1978, in response to concern over increased dependence on foreign oil, the OCSLA was amended to: establish policies and procedures for managing the oil and natural gas resources of the [OCS] which are intended to result in expedited exploration and development of the [OCS] in order to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade. 43 U.S.C. § 1802(1). These are vitally important goals for the well-being of the country, and the ultimate management authority over their achievement is vested in the federal government and not a particular coastal state. Section 19 of the OCSLA, 43 U.S.C. § 1345, it is true, instructs the Secretary of Interior to consider recommendations by the Governor of an affected state regarding the size, timing, or location of a proposed lease sale. 43 U.S.C. § 1345(a). The section gives great weight to the Governor’s recommendations, providing that the Secretary of Interior “shall accept” them if they provide a reasonable balance between the national interest and the well-being of the citizens of the state. Nevertheless, it is explicitly provided that the Secretary’s decision to reject such recommendation is final, unless his decision is arbitrary or capricious. 43 U.S.C. § 1345(c), (d). The finality of the Secretary of Interior’s decision under this section is another strong indication that the federal government is intended to have the ultimate authority over the OCS leasing program. We, therefore, interpret section 307 (c)(1) to require that Lease Sale 53 be made consistent with California’s plan to the maximum extent practicable. Accommodation to California’s plan to a lesser extent does not afford consistency to the maximum extent practicable. Accommodation to a greater extent exceeds the command of the statute. In making this consistency determination, the Secretary of Interior may take into account that further consistency determinations will be made at the exploration, development, and production stages, when more complete information will be available. See 16 U.S.C. § 1456(c)(3). In other words, the lease sale need not be configured so as to preclude any possible future inconsistency from arising as development proceeds. The Secretary of Interior, however, must set the leasing, development, and production activities on a path that is consistent with the state plan to the maximum extent practicable in light of the then available knowledge. The limit beyond which conformity with a state plan would not be practicable to the maximum extent cannot be precisely delineated. Such factors as the extent to which leasing, exploration, development, drilling, and production would be hampered or proscribed by conformity; the reasonableness of the state plan; as well as the terms of the particular proposed lease sale must be examined. Beyond this it is difficult to go; verbal formulas cannot eliminate the necessity of examining each situation with care and sensitivity to the concerns of the state and the nation. 3. Settlement of Disputes as to Consistency by Secretary of Commerce. Inasmuch as the Secretary of Interior has not yet made the consistency determination that we hold he must with respect to Lease Sale 53, it is not possible to know whether the Secretary of Interior and the State of California will disagree on whether the required consistency determination reflects consistency “to the maximum extent practicable.” In making the consistency determination, the Secretary of Interior undoubtedly will be guided by a spirit of federal/state cooperation. Should the state disagree with the Secretary’s consistency determination, sections 307(c) and (h) contain mediation procedures that may be invoked by the Secretary of Commerce to reconcile the paramountey of the national interest with the concerns of the state. We do not regard subsection (c)(1) of section 307 as lacking, or existing independently of, those procedures explicitly set forth in subsections (c)(3) and (h). P. Remedy As already indicated, the district court’s order required the federal appellants to conduct “all activities on [the tracts at issue] in a manner consistent with California’s Coastal Management Plan.” 520 F.Supp. at 1389. The premise on which this order rests appears to be that California’s view of consistency ultimately will be controlling. We do not agree with this premise. We, therefore, affirm only that portion of paragraph 5 of the district court’s order that requires a consistency determination to be made before Lease Sale 53 goes forward. That is, paragraph 5 is affirmed insofar as it reads: Defendants and defendant-intervenors, their officers, agents, employees, representatives, and all persons acting in concert with them, are hereby enjoined from awarding, approving or taking any action or allowing others to take any action pursuant to any leases for any of the tracts at issue, until such time as defendants comply with the requirements of the Coastal Zone Management Act by conducting a consistency determination on the tracts at issue .... We modify that paragraph to delete the remainder, which provides as follows: “and by conducting all activities on these tracts in a manner consistent with California’s Coastal Management Plan.” If the State does not agree with a determination of consistency by the Secretary of Interior, the dispute-resolution procedures of the CZMA are available. The district court also voided the bids for the tracts at issue and ordered the deposits returned to the bidders. Id. The federal appellants and oil companies argue that the cancellation of bids after their contents have been revealed is excessive, punitive, unprecedented, and destroys the essence of secret bidding procedures, thus causing the loss of millions of dollars the bidders spent compiling the data for the bids. They argue that such drastic measures should be deferred at least until it is finally decided whether Lease Sale 53 can go forward in its present form. We agree. The resolution of the dispute must await a consistency determination by the Secretary of Interior. If the state does not agree with this determination, final resolution of the conflict must await the outcome of the CZMA dispute resolution procedures. During the pendency of these procedures, the status quo should be maintained. Therefore, we stay the portion of the district court’s order (i.e., paragraphs 3 and 4) requiring the cancellation of the bids and return of the deposits and that portion of paragraph 5 of the order which required that federal lease sale activities be conducted consistently with California’s coastal zone management plan. To the extent that the deleted portion of paragraph 5 also requires that all other activities, including exploration, development, or production, be conducted consistently with California’s plan, it embraces activities and stages of off-shore oil development not at issue in this case. Only the lease sale is at issue. We therefore vacate the district court’s order insofar as it extends beyond the lease sale stage. Finally, we retain jurisdiction over this appeal, and if the consistency determination process is not completed within a reasonable time we will entertain a motion to vacate our stay. On the CZMA issue, therefore, we hold as follows: (1) We affirm the district court’s order insofar as it requires a consistency determination for Lease Sale 53. (2) We stay the district court’s order insofar as it declares bids and leases null and void and requires return of monies posted and insofar as it requires federal lease sale activities to be conducted consistently with California’s coastal zone management plan. (3) We vacate the district court’s order insofar as it applies beyond the lease sale stage. V. NATIONAL ENVIRONMENTAL POLICY ACT California also sought to enjoin the lease sale on the basis of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq. It contends that the federal government’s failure to supplement the Environmental Impact Statement (EIS) to incorporate the latest estimates of oil and gas reserves in the basin was a violation of section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). That section requires that an EIS be prepared and circulated for major federal actions affecting the quality of the human environment. The Bureau of Land Management (BLM) released the final EIS on Lease Sale No. 53 in early September, 1980, incorporating the original estimates of oil and gas reserves provided by the United States Geological Survey (USGS). A few days before the release of the EIS, on August 28, 1980, the USGS released revised estimates of the oil and gas reserves. These new figures indicated that the reserves were thought to be roughly twice those originally estimated. Although the BLM did not alter the body of the EIS to reflect the new figures, it did attach the new estimates to the EIS as an Addendum. Also, a Secretary Issue Document (SID) was prepared for the Secretary of Interior in October, 1980, containing revised estimates of the environmental impacts using the new data. It was concluded in the SID, which is a public document, that a supplement to the EIS was not needed. The district court granted summary judgment to the federal government on this issue, holding that: the decision of the Department of Interi- or not to file a supplement or to revise the existing EIS in the few days remaining before publication is not unreasonable. 520 F.Supp. at 1383. We affirm. The district court in its analysis focused on the adequacy of the initial EIS. 520 F.Supp. at 1382, quoting Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981). While we agree that the initial EIS was adequate, new information may require its supplementation. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980). A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions, even after release of an EIS. Id. at 1023-24. Guidelines of the Council on Environmental Quality require that agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (ii) There 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). An agency’s decision not to supplement an EIS will be upheld if it was reasonable. Warm Springs Dam, supra, at 1024. Reasonableness depends on the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. Id. We hold that the decision of the BLM not to supplement the EIS for Lease Sale 53 was not unreasonable. Whether the revisions to the estimates of oil reserves will change the environmental impact of Lease Sale 53 significantly is problematic. The^aecuracy of the data is open to question, giveri'the'Inherently speculative nature of oil "reserve estimates? Also, the qualitative impacts on the environment possibly could be the same under either set of estimates. In fact, in the SID only a small quantitative increase in impact was estimated. We acknowledge being influenced by the fact that additional Environmental Impact Statements will be required at the later exploration, production, and development stages, and these will, of course, be based on the latest reserve estimates available at the time they are prepared. The revised estimates of oil and gas reserves were made available to the public as an addendum to the EIS, and environmental impact estimates using the new data were made public in the SID. While a SID cannot substitute for a supplemental EIS, in this case it supports a holding that the Department of Interior carefully considered the information and its impact before concluding that a supplementary EIS was unnecessary. The SID also provides a detailed explanation for the Secretary of Interior’s decision not to supplement. While the Addendum and SID did not go through the public comment process, that process is not essential every time new information comes to light after an EIS is prepared. Were we to hold otherwise, the threshold decision not to supplement an EIS would become as burdensome as preparing the supplemental EIS itself, and the continuing duty to gather and evaluate new information, Warm Springs Dam, supra, at 1023, could prolong NEPA review beyond reasonable limits. The district court did not err in its conclusion with respect to the NEPA issue. VI. OUTER CONTINENTAL SHELF LANDS ACT Section 19 of the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1345, provides, as already noted, that the governor of an affected state may submit recommendations to the Secretary of Interior regarding the size, timing, or location of a proposed lease sale. 43 U.S.C. § 1345(a). The Secretary is required to accept the governor’s recommendations “if he determines . .. that they provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State.” 43 U.S.C. § 1345(c). The statute provides that the Secretary’s acceptance or rejection of such recommendations shall be final, “unless found to be arbitrary or capricious.” 43 U.S.C. § 1345(d). See, e.g, Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1 (D.C.Cir.1976). California claims that Governor Brown’s recommendations provided for a reasonable balance between national and state interests, and thus that the Secretary’s failure to accept the Governor’s recommendations was arbitrary and capricious. California also contends that the Secretary violated certain procedural requirements of Section 19. As the district court properly noted, the scope of our review is limited. In determining whether the Secretary’s rejection of the Governor’s recommendations was arbitrary or capricious, we must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), quoted in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Washington State Farm Bureau v. Marshall, 625 F.2d 296, 302 (9th Cir. 1980). Additionally, we must consider whether the Secretary “articulate[d] a rational connection between the facts found and the choice made,” Bowman Transportation, Inc., supra, 419 U.S. at 285, 95 S.Ct. at 441, and whether the Secretary made the decision in accordance with his duty under law. American Petroleum Institute v. Knecht, 456 F.Supp. 889, 904-05, aff’d, 609 F.2d 1306 (9th Cir. 1979). The court may not substitute its judgment for that of the agency. The district court, while not impressed with the spirit with which the Secretary dealt with the Section 19 requirements, held that, giving due deference to his judgment, the Secretary’s decision to reject Governor Brown’s recommendations was not legally “arbitrary and capricious.” 520 F.Supp. 1385-86. We agree. The Secretary did analyze factors weighing in the balance of interests, and described this analysis in a letter mailed to Governor Brown on May 1, 1981. As the district court noted, the OCSLA provides little or no guidance as to the proper basis for the Secretary’s evaluation of a governor’s recommendation. It provides that the Secretary must determine whether the governor’s recommendation draws a “reasonable balance” between two key factors — the “national interest” and the “well-being of the citizens of the affected State.” 43 U.S.C. § 1345(c). The statute requires that the determination of the “national interest” encompass “the desirability of obtaining oil and gas supplies in a balanced manner,” but does not attempt to define the factors relevant to the citizens’ well-being. Id. The Secretary evaluated such “quantifiable factors” as income from resource development and expected monetary losses due to oil spills, and such “not quantifiable” factors as damage to wildlife, decline in water quality, and “aesthetic and lifestyle losses.” 520 F.Supp. 1384. We agree with the district court that the Secretary gave some consideration to the relevant factors and his decision cannot be said to be arbitrary or capricious. California also claims that the Secretary failed to comply with the procedural requirements of section 19 by not providing sufficient opportunity for the Governor to consult and by not adequately communicating to the Governor in writing his reasons for rejecting the recommendation. 43 U.S.C. § 1345(c). The statute requires that the Secretary in making the decision to accept or reject the recommendation provide the Governor “the opportunity for consultation.” 43 U.S.C. § 1345(c) (emphasis added). We agree with the district court that the Secretary’s consultation with Governor Brown was adequate to meet the technical requirements of the statute. 520 F.Supp. 1385. The statute also requires the Secretary to “communicate to the Governor, in writing, the reasons for his determination to accept or reject such Governor’s recommendations.” 43 U.S.C. § 1345(c). We also agree with the court below that the Secretary’s explanatory letter to the Governor satisfied this requirement, and that the timing of the letter — after announcement of his decision to go ahead with the lease sale and two days after suit was filed on this matter in district court — does not render it ineffective in fulfilling the statutory requirement. 520 F.Supp. 1385. Having concluded that the Secretary complied with the procedural requirements of Section 19 of the OCSLA and that his decision to reject Governor Brown’s recommendation was not arbitrary or capricious, we affirm the district court’s grant of summary judgment to appellants on this issue. VII. STANDING OF ENVIRONMENTAL GROUPS The Natural Resources Defense Council, Inc., The Environmental Defense Fund, and various other environmental organizations sought standing to raise the CZMA issues raised by the State of California and the local governments. The district court denied them standing because the CZMA was not enacted for their “especial benefit,” and treated the briefs of these parties as amici curiae. Citing two recent Supreme Court cases, Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); and California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the district judge held that these environmental groups had no implied right of action to bring claims under the CZMA. Assuming, arguendo, this holding is correct, it does not resolve the standing issue. The environmental groups rely for standing not on an implied right of action under the CZMA, but on Section 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702. Addressing this point, the district court held that they may not rely on the APA as the sole jurisdictional predicate. In this the district court erred. The environmental groups relied on the APA for standing, not for federal subject matter jurisdiction. We hold that the environmental groups have standing under 5 U.S.C. § 702. No remand is necessary, however, because the erroneous denial of standing did not affect the outcome of the case. We first note that federal court jurisdiction is based on 28 U.S.C. § 1331, for civil actions arising under the laws of the United States, and is not at issue in this case. Second, an implied right of action under the statute violated is not a necessary predicate to a right to action under the APA. Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1981). Section 10 of the APA, 5 U.S.C. § 702 provides: 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. To have standing under this section both of the following questions must be answered affirmatively: 1. Has the party seeking standing suffered a legal wrong, or been adversely affected or aggrieved by the agency action (j.e., has he been “injured in fact”), and, 2. Are the interests sought to be protected by the party seeking standing “arguably within the zone of interests to be protected or regulated” by the statute in question. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-53, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Glacier Park Foundation v. Watt, supra, at 885. A mere assertion of organizational interest in a problem, unaccompanied by allegations of actual injury to members of the organization, is not enough to establish standing. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1971); Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., -- U.S. -, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Here, however, actual injuries to members have been alleged. The environmental groups claim that various of their members live, work, and enjoy recreational activities in the areas that will be affected by leasing of OCS tracts. They allege that their members’ use of the coast and waters for commercial and sport fishing, scientific research, tourist activities, and recreation is threatened by OCS leasing. Injuries of a noneconomic nature to widely-shared aesthetic and environmental interests, as well as economic injuries, can amount to sufficient “injury in fact” for standing under section 10. Sierra Club v. Morton, 405 U.S. at 734, 92 S.Ct. at 1365, cited with approval in United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Cady v. Morton, 527 F.2d 786 (9th Cir. 1975). Thus, the environmental groups’ allegations establish sufficient “injury in fact” to permit an affirmative answer to the first question. We also find that the alleged injuries are within the “zone of interests” to be protected by Section 307(c) of the CZMA. As already pointed out, section 307(c)(1) is part of a Congressional scheme to carry out the overall purpose of the CZMA, which is to protect the very resources the environmental groups claim are threatened. Congressional findings underlying the CZMA recognize “a national interest in the effective management [and] protection” of the coastal zone as well as in its development and beneficial use. Section 302(a), 16 U.S.C. § 1451(a). Congress expressed concern over the “loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion” that has been “occasioned by population growth and economic development, including . . . extraction of mineral resources and fossil fuels.” 16 U.S.C. § 1451(c). We agree with the finding in American Petroleum Institute v. Knecht, 456 F.Supp. 889 (C.D.Cal.1978), aff’d, 609 F.2d 1306 (9th Cir. 1979), that “[although sensitive to balancing competing interests, [the CZMA] was first and foremost a statute directed to and solicitous of environmental concerns.” 456 F.Supp. at 919. Thus, the allegations of the environmental groups permit an affirmative answer also to the second question. 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. Additionally, amici curiae briefs were filed by the parties wrongly denied standing. Our review of the more than one thousand pages of the eighteen briefs filed in this case, as well as the extensive argument and our own research, convince us that no stone was left unturned in presenting all aspects of the CZMA issue to this court. Allowing additional parties to present the same arguments would not affect the outcome of this case. Therefore, to remand the case for additional proceedings because of the district court’s error with respect to standing would constitute a waste of scarce judicial resources. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND STAYED IN PART. . The district court order reads as follows: “ORDER AND SUMMARY JUDGMENT The parties’ cross-motions for summary judgment, pursuant to Fed.R.Civ.P. 56, and defendant-intervenors’ motion for summary judgment, or, in the alternative, motion to dismiss the complaints of Natural Resources Defense Council, et al., and of the County of Humboldt, et al., pursuant to Fed.R.Civ.P. 12(b)(6), came on for hearing before the Honorable Mariana R. Pfaelzer on July 10, 1981. All parties appeared by and through their respective counsel of record. Having reviewed and considered the administrative record and the memoranda, affidavits, and exhibits filed by the parties, and having heard and considered the oral arguments of counsel, and having taken the matter under submission, the Court has incorporated its Findings of Fact and Conclusions of Law in the Opinion filed herewith. Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that: 1. Plaintiffs’ Motion for Summary Judgment in CV 81-2080, with respect to the claim arising under the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq., is granted. Defendants’ Motion for Summary Judgment with respect to plaintiffs’ claim arising under the Coastal Zone Management Act is denied. 2. Defendants’ decision to lease Tracts 129 to 142, 144 to 146, 148 to 155 and 158 to 161 in the northern portion of the Santa Maria Basin for oil and gas development was made in violation of the Coastal Zone Management Act. 3. Any bids received for the tracts at issue are declared null and void and the monies posted shall be returned to the bidders. 4. Any oil and gas leases for any of the tracts at issue herein awarded as part of Lease Sale No. 53 are declared null and void. 5. Defendants and defendant-intervenors, their officers, agents, employees, representatives, and all persons acting in concert with them, are hereby enjoined from awarding, approving or taking any action or allowing others to take any action pursuant to any leases for any of the tracts at issue, until such time as defendants comply with the requirements of the Coastal Zone Management Act by conducting a consistency determination on the tracts at issue and by conducting all activities on these tracts in a manner consistent with California’s Coastal Management Plan. 6. Defendants’ Motion for Summary Judgment in CV 81-2080 with respect to plaintiffs’ claims arising under the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq., the National Environmental Protection Act, 42 U.S.C. §§ 4321 et seq., the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., and the Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq,, is granted. Plaintiffs’ Motion for Summary Judgment in CV 81-2080 with respect to the claims arising under these statutes is denied. 7. Defendant-intervenors’ Motion to Dismiss Plaintiffs, Natural Resources Defense Council, et al., in CV 81-2081 pursuant to Fed.R.Civ.P. 12(b)(6) is granted. 8. Defendant-intervenors’ Motion to Dismiss Plaintiff-intervenors County of Humboldt, et al., in CV 81-2080 pursuant to Fed. R.Civ.P. 12(b)(6) is denied. 9. Each party shall bear its own costs. 10. Judgment is hereby entered. The Court shall retain continuing jurisdiction over this case to ensure compliance with this Order.” California v. Watt, 520 F.Supp. 1359, 1389 (C.D.Cal.1981). . Appellants also object to the district court’s failure to perform a “particularized analysis” of possible remedies and their consequences, as required by Alaska v. Andrus, 580 F.2d 465 (D.C.Cir.), vacated in part on other grounds, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). Although this claim appears to have merit, we do not reach the issue of the applicability of Alaska v. Andrus, in view of our disposition on other grounds of the remedy ordered below. . WOGA concedes that it suggested to the lower court the very remedy to which it now objects, but this does not affect our decision on this issue. . The district court dismissed the environmental groups and their claims from the lawsuit in a separate order of dismissal. NRDC v. Watt, 520 F.Supp. 1359 (C.D.Cal.1981) (order of dismissal).

Save Lake Washington v. Frank

J. BLAINE ANDERSON, Circuit Judge: The plaintiffs, Save Lake Washington (“SLW”) and numerous private citizens residing on Lake Washington, appeal from the district court’s judgment vacating a preliminary injunction and denying entry of a permanent injunction against the construction of certain docking facilities on the lake for use by oceangoing vessels in the service of the National Oceanic and Atmospheric Administration (“NOAA”). We affirm. I. BACKGROUND The NOAA is an agency within the Department of Commerce which administers a variety of research programs dealing mainly with meteorology and with marine resources. The NOAA Pacific Northwest headquarters, located in Seattle, is currently spread out over seven locations in and around Seattle. Ever since the establishment of the headquarters in Seattle, NOAA officials have been concerned with the necessity from an economic standpoint to consolidate operations at a single facility. After searching the Puget Sound area for suitable locations in the early 1970’s, the NOAA fixed its attention upon a portion of the former Sand Point Naval Air Station located on freshwater Lake Washington, immediately to the east of Seattle. The Sand Point site currently lacks docking facilities of any type. The proposed consolidation of facilities at Sand Point would require the dredging of the offshore waters and the construction of piers adequate to service the NOAA’s fleet of oceangoing research vessels. At present, NOAA vessels dock at Lake Union. Access to Lake Washington from Puget Sound would be accomplished by entering the Lake Washington Ship Canal from Shilshole Bay, heading east through Lake Union and the Montlake Cut and then onto the lake itself. While the passage of ocean vessels from Puget Sound to Lake Union is not an uncommon occurrence, such vessels rarely enter Lake Washington. Lake Washington is currently devoted primarily to recreational use by local residents. In January 1975, the NOAA published a draft environmental impact statement relating to the relocation project in an attempt to comply with the National Environmental Policy Act' (“NEPA”), 42 U.S.C. § 4332 et seq. Following public commentary on the draft EIS, NOAA published a final EIS in January 1976. The final EIS concluded that location of all facilities at Sand Point would represent the most cost-effective alternative to the various sites which had been under consideration, including one “split-site” plan which would have located the NOAA’s land-based facilities at the Sand Point site, with the dock facilities located elsewhere. In December 1977, SLW and the other plaintiffs, concerned over NOAA’s apparent intent to berth oceangoing vessels at Sand Point, filed their complaint in the present suit seeking injunctive and declaratory relief against the construction of ocean vessel berths at Sand Point. The plaintiffs alleged inter alia that NOAA’s final EIS did not comply with the requirements of NEPA, and that the NOAA had violated the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451. Shortly thereafter, plaintiffs moved for a preliminary injunction. On March 15, 1978, the district court adopted a magistrate’s report recommending that a preliminary injunction issue. The court ruled that the final EIS was deficient in its failure to discuss adequately alternative sites and for failing to discuss increased navigational hazards which would result from the passage of large vessels through Montlake Cut to Lake Washington. In response to the district court’s evaluation of the deficiencies contained in the final EIS, the NOAA prepared a supplemental environmental impact statement. In November 1978, the Director of the NOAA issued a decision memorandum in which he approved consolidation of the Seattle facilities at Sand Point and set out his reasons for doing so. The Director was aided in his decision by a document titled the “NOAA Western Regional Center Option Assessment,” prepared by his staff, and presumably by the supplemental EIS. On January 9, 1979, the NOAA filed a motion to vacate the preliminary injunction, which was again referred to a magistrate, along with plaintiffs’ motion to certify questions of state law to the Supreme Court of Washington. On April 30, 1979, the district court, acting upon the magistrate’s recommendation, vacated the preliminary injunction and granted the NOAA’s motion for summary judgment. This appeal followed. In January 1981, during the pendency of this appeal, the NOAA substantially altered its plans for consolidation of its facilities at Sand Point. Due to budgetary constraints, the NOAA decided to reduce the number and size of piers planned for Sand Point and to provide moorage space at that site only for periodic research staging and transient vessel visits. The revised project will require moorage space to accommodate two NOAA vessels, rather than twelve vessels as originally planned. The permanent berthing facilities for NOAA’s oceangoing fleet will now be located outside of Lake Washington rather than at Sand Point. II. NEPA SLW raises three contentions under its NEPA-based challenge to the Sand Point project: 1. The supplemental EIS fails to address adequately the navigational risks associated with Sand Point; 2. The supplemental EIS fails to acknowledge and respond to responsible opposing views; 3. The decision to berth oceangoing vessels on Lake Washington is reviewable under the “arbitrary and capricious” standard. We examine each of these arguments separately, in light of the NOAA’s current plans. A. Standard of Review Sitting as an appellate court reviewing an environmental impact statement which has received a clean bill of health from the district court, we deal with now-familiar principles. The district court’s finding that an EIS is adequate will be reversed if based upon an erroneous legal standard or upon clearly erroneous findings of fact. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551, 552 (9th Cir. 1977). The task of the district court is also a limited one. Judicial review of an EIS covers only the issue of whether NEPA’s procedural requirements have been met, and whether the EIS performs its primary function of presenting the decision-maker with an environmentally-informed choice. The correct standard is provided in the Administrative Procedure Act, 5 U.S.C. § 706(2)(D), which directs courts to set aside an agency action if taken “without observance of procedure required by law...” See Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc); see also, Lange v. Brinegar, 625 F.2d 812 (9th Cir. 1980); Matsumoto v. Brinegar, 568 F.2d 1289, 1290 (9th Cir. 1978). The narrow standards of review applicable at both the trial and appellate court levels leave the judiciary with an extremely narrow substantive role, if any. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), the Supreme Court defined the following role for federal courts in NEPA eases: “NEPA does set forth significant substantive goals for the Nation, but its mandate is essentially procedural.... It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, .., and not simply because the court is unhappy with the result reached.” (citations omitted.) Id. at 558, 98 S.Ct. at 1219. As the Supreme Court recently noted in Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980), a federal court may look only to insure that the agency in question has “considered the environmental consequences” of its action. 444 U.S. at 227, 100 S.Ct. at 499-500. NEPA does not require that the agency elevate environmental concerns over legitimate non-environmental considerations. Id. It requires only that they be brought to the agency’s attention and that they receive fair consideration. In the words of an earlier Supreme Court decision, the agency must take a “hard look” at the environmental consequences. Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Guidelines in evaluating the adequacy of an EIS are well established. An EIS need set forth only those alternatives necessary to permit a “reasoned choice.” See, e. g., Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975). The twofold purpose of an EIS is to “.. . (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project’s environmental impact and encourage public participation in the development of that information.” Trout Unlimited v. Morton, 509 F.2d 1276, 1287 (9th Cir. 1974). With these considerations in mind, we proceed to SLW’s challenges of the supplemental EIS. B. Navigational risks SLW charges that the supplemental EIS has not cured one of the original EIS’s more glaring deficiencies, the failure to examine adequately the navigational risks associated with the passage of large ships through the Montlake Cut and onto Lake Washington. Specifically, SLW alleges that the risks have not been researched adequately in that no tests for slow-speed stopping of large vessels have been conducted, and that the adverse environmental impacts of an oil spill have not been fully investigated. Both the magistrate’s report and the district court opinion found these contentions to be without merit. We affirm. The district court acknowledged that more research could be performed to determine with greater precision the slow-speed stopping distances of NOAA vessels, but concluded that available research was sufficient to apprise the decision-maker of the risks involved. The supplemental EIS contains a lengthy appendix which describes in some detail a study of navigational risks likely to be encountered in berthing at Sand Point. Included in this thorough discussion of the problems associated with Sand Point is full-speed stopping data provided by the vessel’s manufacturer. The NOAA includes an estimate of slow-speed stopping distances for its two largest vessels. The EIS further recommends as a portion of the “mitigation package” that slow-speed tests be conducted in order to provide additional information for vessel captains. The purpose of the proposed research was to mitigate the navigational risks by making such data available to the vessel captains, and not to postpone necessary preliminary research. In more general terms, SLW attacks the risk assessment for its failure to employ a “worst case” analysis. On the contrary, as the magistrate’s report found, both the potential magnitude and frequency of accidents is presented at some length. The EIS specifically notes that a “worst case” analysis was used, and nothing in the data presented suggests to the contrary. SLW’s criticism of the oil spill discussion centers mainly on the statement’s brief reference to the toxic effects of a spill on flora and fauna, without a more detailed description of the effect of a spill on different types of aquatic life. The SEIS lists the “maximum credible oil spill” that could occur if each of its vessels were involved in a collision, calculated by adding together the fuel capacity of the vessel’s two largest adjacent fuel tanks. The SEIS does not contain any data on the size of spill that would be likely to result from a collision, nor does it discuss the effects of such a spill in detail; it states only that spills would be “difficult to contain and to clean up” and that fuels used by NOAA ships “are toxic to both flora and fauna.” We need not decide whether this limited treatment of the topic would have been adequate had the NOAA proceeded with its original plans to berth its fleet at Sand Point. As we have noted above, the NOAA has abandoned this portion of its plan and now intends to berth its fleet outside of Lake Washington. The safety record of vessels traversing the Lake Washington Ship Canal, and the greatly reduced number of transits through the Montlake Cut that will be necessary now that the NOAA has altered its plans, convinces us that the chance of a major oil spill is remote. A discussion of “remote and conjectural consequences,” while possibly desirable, is simply not required by NEPA. Sierra Club v. Hodel, 544 F.2d 1036, 1039 (9th Cir. 1976). C. Failure to acknowledge responsible opposing viewpoints SLW’s second general area of attack is upon the alleged failure of the supplemental EIS to take into account opposing viewpoints. This contention breaks down into two stages. SLW first charges that viewpoints of certain National Ocean Survey officers as to the risks of passage from Puget Sound to Lake Washington have not been acknowledged. Secondly, SLW points to opposing viewpoints of land use officials in the Lake Washington area. SLW notes that a number of officers employed by the NOS, the agency responsible for navigating NOAA’s vessels, have voiced serious doubts about the chances of passing the vessels through the waterways to Lake Washington on a routine basis without a significant chance of a serious accident occurring. SLW points, for example, to a statement by an NOS officer who piloted a large NOAA vessel through the passage, and described his experience as a “tense, risky trip.” This, and similar comments by experienced sea captains familiar with NOAA ships and with the waters involved, led the author of the risk assessment to conclude in a separate document that the risks associated with berthing vessels at Sand Point were “marginally acceptable,” a comment not included in the supplemental EIS. SLW’s argument that the risk assessment contained in the supplemental EIS unnecessarily disparages these comments is without merit. As the magistrate’s report notes, the risk assessment clearly identifies both the sources and the substance of these comments. The account of the passage is laid out in a footnote. It is apparent that the NOAA considered the officers’ criticisms in the supplemental EIS. The information presented was sufficient to provide the NOAA with a reasoned basis for making its decision. SLW has further argued that the supplemental EIS does not take into account the published views of several state and local land use officials that the presence of oceangoing ships on Lake Washington would be inconsistent with certain land use goals established for the area, including the Lake Washington Regional Shoreline Goals and Policies. The primary complaint is that specific views were not represented in the supplemental EIS. Instead, summaries of local officials’ views were included. The district court found that these summaries adequately conveyed the substance of the criticisms. We again see no reason to disturb the court’s finding. The summaries sufficiently apprised the decision-maker of the opposition of certain officials to the project, and their reasons. Viewing the EIS as a whole, the agency had an adequate basis for evaluating the concerns of the land use jurisdictions affected by the Sand Point project. We also agree with the magistrate’s report that failure to summarize the views of the President of the Seattle City Counsel and the letter of opposition from the Town of Hunt’s Point is not fatal. Again, the EIS has adequately taken into account similar views. D. The decision to locate at Sand Point SLW invites us to overturn the decision to locate at Sand Point as being arbitrary and capricious. In so doing, SLW in effect asks that we evaluate as a substantive matter the decision itself. This we cannot do. In another context, this court has stated that: “[ujnless the agency decision was so arbitrary and capricious as to amount to bad faith, the court cannot review the substantive decision of the agency.” Daly v. Volpe, 514 F.2d 1106, 1108 (9th Cir. 1975). We cannot weigh the relative merits of one proposal against another, nor can we attempt to compare beneficial environment effects. We may only examine the decision for the requisite good-faith consideration of environmental facts as expressed in the EIS. As to the initial contention that the Director of the NOAA erroneously relied upon the Option Assessment prepared by his staff, we note that the Option Assessment was made available for public comment along with the supplemental EIS and the Decision Memorandum. Consequently, an opportunity for public review and comment on the Option Assessment was provided. We see no basis for overturning the Administrator’s decision on the basis of his use of the Option Assessment. • We also are not persuaded that the alleged mischaracterization in the Decision Memorandum of the aquatic effects of permanently berthing the NOAA vessels at Lake Union as “moderate” instead of “minimal” or “low” as described in the supplemental EIS requires us to set aside the Director’s decision. We concur with the district court’s finding that the allegedly erroneous description had a de minimis effect, if any, upon the decision to berth the vessels at Sand Point instead of Lake Union. SLW’s other arguments require only brief responses. There was an adequate basis for determining that the construction costs favored Sand Point. Property acquisition costs would appear to support a decision to place some or all facilities at Sand Point. With regard to SLW’s argument that the Director did not consider the advantages associated with the Lake Union split-site alternative, we note that a split-site alternative has now apparently been adopted by the NOAA. Moreover, the Decision Memorandum summarizes briefly the extended discussion in the Option Assessment dealing with the Lake Union proposal. Based upon the content of the Decision Memorandum, we cannot say that the Director failed to make a good-faith, reasoned choice. The Decision Memorandum is not a document required by NEPA and need not contain a detailed discussion of all potential alternatives. We review it here only to satisfy ourselves that the Director did not act in bad faith. We reiterate our very limited role in the process of reviewing the Director’s decision. The ailtimate conclusion that Sand Point is an appropriate site for NOAA facilities may well be a blunder, but we have served our purpose under NEPA by assuring that it was a “knowledgeable blunder.” Matsumoto v. Brinegar, supra, 568 F.2d at 1290. There was in the record a sufficient basis for the Director’s decision. We find that the Sand Point location decision was neither arbitrary nor capricious. III. THE COASTAL ZONE MANAGEMENT ACT SLW urges as a separate ground for enjoining construction of the pier the failure of the NOAA to comply with certain provisions of the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq., and applicable regulations. Specifically, SLW charges that the NOAA has violated the “federal consistency” provisions of the Act, 16 U.S.C. § 1456(c)(1), (c)(2), and (c)(3), by failing to conform the project to local land use plans for the Lake Washington shoreline region, and by failing to obtain a “substantial development permit” for the project. Because we affirm the district court’s finding that the NOAA was entitled to rely on an apparent determination by the Washington Department of Ecology that the proposed development was consistent with the Washington Shoreline Management Act, and that the substantial development permit issue was not raised in a timely fashion, we will assume both that the plaintiffs here had standing under the Act, and that a claim for relief can be stated under the Act by a private litigant. See Town of North Hempstead v. Village of North Hills, 482 F.Supp. 900, 905 (E.D.N.Y. 1979). We defer resolution of these issues for a case where they are more squarely presented. The purpose of the Act is to encourage the development of state coastal management programs by providing 80% of the funding necessary for such programs. Where a state program meets with federal approval, the Act mandates that any federal activity which directly affects the coastal zone of a state must “to the maximum extent practicable” be consistent with the state’s coastal management program. Washington became the first state to enact a comprehensive management program when it passed the Shoreline Management Act of 1971, R.C.W. 90.58 et seq. Under the Shoreline Management Act, the responsibility for enacting master programs lies with local governments, subject to approval by the Washington Department of Ecology (“WDOE”). In order to aid in coordinated planning among the various jurisdictions which line Lake Washington’s shores, the WDOE created the Lake Washington Region. See WAC, Chapter 173-28. The Region eventually • adopted the Lake Washington Regional Shoreline Goals and Policies from which local jurisdictions were expected to develop their shoreline master programs. The Regional Goals and Policies contained an unequivocal statement against the expanded moorage of oceangoing ships on the lake. Following completion of the regional policy statement, the City of Seattle published the Seattle Shoreline Master Program (“SSMP”), which did not include an express prohibition against moorage of large vessels. The SSMP map also provided for the location of the NOAA headquarters at Sand Point, though it does not clearly provide for the construction of any docking facilities. SLW argues that because the federal Coastal Zone Management Act requires federal projects affecting the shoreline to be consistent with state and local programs and because the Lake Washington Regional Goals and Policies so clearly prohibit the moorage of oceangoing ships on Lake Washington, this court must find that the NOAA contravened the federal consistency provisions of the Act by attempting to develop a docking facility for large ships at Sand Point. The SSMP, it is urged, must be read in a manner consistent with the regional planning policies even though it does not expressly prohibit moorage of ocean vessels on the lake. Both federal and state law provide a mechanism for determining whether a proposed federal project is “consistent” with state shoreline management programs. Under the regulations implementing the Coastal Zone Management Act, the federal agency must determine in the first instance whether a proposed project is consistent with the state program. 15 C.F.R. § 930.37. In the event that the federal agency concludes that its proposed project is consistent with the state management program, it must then submit a “consistency determination” to the appropriate state agency describing the activity, its effects, and data to support the conclusion that the project is consistent. 15 C.F.R. § 930.39. If the state agency fails to respond within 45 days, then the federal agency is entitled to “presume” that the project has been deemed consistent with the state program. 15 C.F.R. § 930.-41(a). The WDOE has promulgated somewhat similar guidelines which provide that if the WDOE determines that a project is consistent, then “nothing more will be done.” In January 1977, the NOAA forwarded a consistency determination on the Sand Point project to both the WDOE and the Seattle Department of Community Development, the civic agency responsible for administration of the SSMP. At the time, the federal regulations on consistency determinations were not in force. According to one affidavit filed by D. Rodney Mack, the supervisor of the Shorelands Division of the WDOE, the WDOE accepted “without comment” the NOAA’s consistency determination. Mack’s affidavit reveals that the potentially harmful effects of mooring ocean vessels on Sand Point were considered by the WDOE, but were rejected because of “certain differences” between the NOAA’s ships and regular private, commercial oceangoing craft. The . Director of the Seattle Department of Community Development responded positively to the consistency determination in a letter dated October 10, 1977. The district court found that the NOAA was entitled to rely upon the WDOE’s apparent agreement with the determination that the Sand Point development was consistent with the Shoreline Management Act, despite certain indications that the WDOE had mistakenly assumed that the NOAA was not subject to the Coastal Zone Management Act. We concur with the district court. Where 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. The Mack affidavit discloses that regard was given to the merits of the Sand Point project. While we mean to express no opinion on the substantive issue of consistency, we affirm the district court’s finding that the NOAA’s reliance was justified. SLW’s second contention under the Coastal Zone Management Act is that NOAA failed to obtain a “substantial development permit” as required by the Shoreline Management Act. See R.C.W. 90.58.-140. Any doubt that a federal agency is required to obtain a substantial development permit prior to undertaking a project in the State of Washington is dispelled by the state regulations implementing the Shoreline Management Act. WAC 173-14-062 provides inter alia that: “The permit system shall be applied in the following manner to federal agencies on lands meeting the criteria of the Shoreline Management Act and the department for shorelines of the state. u * * * “(e) The permit system shall apply to developments undertaken on lands not federally owned but under lease, easement, license, or other similar federal property rights short of fee ownership, to the federal government.” The proposed pier construction apparently extends into state waters and therefore is subject to the permit system. The district court refused to reach the merits of SLW’s substantial development permit argument because it found the claim to be untimely. SLW’s original complaint alleged only that the proposed project was inconsistent with the Lake Washington Regional Shoreline Goals and Policies and with various state shoreline management programs. The first specific mention of the substantial development permit issue in the record appears in a memorandum addressed to the magistrate on February 7, 1979. The magistrate’s report, filed on February 15, makes no mention of the substantial development permit issue. The point was more fully argued in a pair of subsequent memoranda addressed to the district judge, with a rejoinder to the contention filed by the NOAA on April 9, 1979. The district court found that it would be unfair to consider the argument because it had been raised for the first time over one year after the NOAA had undertaken to cure the defects in the first EIS. SLW argues that the complaint was sufficient to put the NOAA on notice of the development permit issue, and that the issue was tried by consent of the parties under Fed.R.Civ.P. 15(b). We disagree with both of SLW’s attempts to revive the issue, and affirm the district court. The complaint was insufficient to put NOAA on notice of the precise argument that the permit was required. As the briefs in this case have amply demonstrated, an allegation of “inconsistency” under the Coastal Zone Management Act is a wide-open argument which involves an examination of a number of different federal, state, and local regulatory schemes. Moreover, the complaint does not allege a violation of WAC 173-14-062. Consequently, even under our liberal standards of pleading, the complaint was inadequate to give notice of the substantial development permit issue. We are unpersuaded that Rule 15(b) required that the district court reach the merits of the issue. Rule 15(b) provides in pertinent part that: “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Although Rule 15(b) applies in its express terms only to the actual trial of issues, it has been applied to questions raised in pretrial motions. See Bobrick Corporation v. American Dispenser Co., 377 F.2d 334 (9th Cir. 1967). The amendment to conform to issues actually tried lies within the sound discretion of the trial judge. See, e.g., Cole v. Layrite Products Company, 439 F.2d 958, 961 (9th Cir. 1971). It is clear that an attempted amendment causing prejudice to the defendant can be rejected by the trial court. See Gonzales v. United States, 589 F.2d 465, 469 (9th Cir. 1979). The district judge found prejudice here in that the development permit issue was not raised until well over a year after the preliminary injunction had been issued and NOAA had gone to the expense of conforming its EIS to the district court’s order. The February 7 memo gave NOAA very little time to respond prior to the magistrate’s report. Given the length of this litigation and the ample opportunity which SLW had to press the development permit issue, we find no abuse of discretion. We also note that while NOAA did not formally object to the raising of the question before the district judge, neither did SLW formally move to amend its pleadings. The district court acted properly. IV. CONCLUSION The judgment of the district court is AFFIRMED. . On February 3, 1981, we ordered this case withdrawn from submission and requested the parties to brief the question of whether the NOAA’s revision of its plans rendered the controversy moot. At oral argument, we had sua sponte raised the possibility that continuing construction at the Sand Point site had mooted the appeal. The parties have submitted a stipulated construction schedule, and the NOAA has submitted a supplemental statement regarding the project’s current scope. These documents convince us that this appeal continues to present a live controversy. According to the schedule, dredging and shoreline excavation for the purpose of constructing the piers has been substantially completed. If we were examining only the potential damage from the dredging, then this appeal likely would be moot since irreversible change has already occurred. We note, however, that the piers are not scheduled to be available for occupancy until June 1982, and that SLW has alleged substantial environmental damage from the mere presence of oceangoing vessels on Lake Washington. Because all phases of the project are interrelated, and because the project still requires construction and the presence of some oceangoing ships on Lake Washington, we find that this appeal is not moot.

American Petroleum Institute v. Knecht

PER CURIAM: Plaintiffs-appellants, American Petroleum Institute, Western Oil and Gas Association, and certain oil company members of the Institute and Association, brought this action against three federal officials to enjoin “final approval” of the California Coastal Zone Management Program pursuant to the Coastal Zone Management Act of 1972, as amended (CZMA), 16 U.S.C. § 1451 et seq. The district court in a detailed and well considered opinion denied injunctive relief and granted summary judgment affirming the federal defendants-appellees’ approval of the California Program. American Petroleum Institute v. Knecht, 456 F.Supp. 889 (C.D.Cal.1978). We affirm. Background The Coastal Zone Management Act was enacted by Congress to preserve, protect, and develop the resources of the Nation’s coastal zones. CZMA § 303. The Act seeks to achieve wise use of land and water resources in coastal areas by providing monetary assistance to states that develop and exercise management programs consistent with its standards. CZMA § 302. The Act charges the Secretary of Commerce with approving state programs. In performing this duty, he must be satisfied that the state program complies with requirements set forth in CZMA § 305 and § 306. After the Secretary has approved a state plan the state receives federal grants that pay up to 80 per cent of the cost of administering their program. CZMA § 306(a). Approval triggers a “federal consistency” provision in the CZMA which requires federal agencies, permittees, and licensees to show that their proposed developments in the coastal zones, including oil and gas developments on the Outer Continental Shelf, will comply with state management program requirements. Federal agencies may not approve proposed projects that are inconsistent with a coastal state’s management program, except upon a finding by the Secretary that the project is consistent with the purposes of the Act or necessary in the interest of national security. CZMA § 307. California was one of the first states to apply for and receive federal assistance under the CZMA. In November, 1972, voters approved the California Conservation Act which established the California Coastal Commission and six regional commissions to prepare a comprehensive plan for the long-range development and conservation of the state’s coastal zone resources. In 1975 the Commission submitted its plan to the legislature and governor for approval. In 1976 the California legislature enacted the California Coastal Act which was similar to the Commission’s proposed plan. The National Oceanic and Atmospheric Administration (NO A A), the approving agency under the Secretary of Commerce, then began working with state officials to assure that this legislation complied with the requirements of the CZMA. In September, 1977, the plaintiffs brought this action to enjoin NOAA’s approval of the California Program. In October, 1977, the district court issued an order allowing the federal defendants to approve the California Program, but enjoining enforcement of consistency provisions until the case could be resolved on its merits. The Acting Associate Administrator for Coastal Management, on behalf of the Secretary of Commerce, then approved the California Coastal Management Program under the CZMA. In August, 1978, the district court granted summary judgment in favor of the federal defendants, holding that (1) approval of the California Program complied with the requirements of the CZMA, (2) the Final Environmental Impact Statement complied with the requirements of the National Environmental Policy Act, and (3) the State could enforce the federal consistency provisions of CZMA § 307. Contentions on Appeal As they did in the district court, appellants challenge the Acting Administrator’s findings that the California Program complied with the requirements of the CZMA. Their specifications of error with respect to the district court’s affirmance of the agency’s approval may be summarized as follows: (1) the court erred in applying the “arbitrary and capricious” standard of review and deferring to the agency’s “expertise” in interpreting and applying the Act; and (2) the California Program failed to comply with numerous CZMA requirements, in that, inter alia, (a) the program was not properly adopted by the State after adequate notice and hearing; (b) it is not sufficiently specific to inform users of the rules to which they are subject; (c) it does not include adequate provisions with respect to local coastal programs; (d) it does not contain the energy elements required; (e) it does not adequately consider the national interests; and (f) it does not protect against unreasonable restrictions on uses of regional benefit. Appellees contend that the issues are not ripe for judicial review. Ripeness Following a careful analysis of the law of “ripeness”, the district court held that (1) the approval given by the federal defendants pursuant to § 306 resulted in action which was ripe for review; but (2) no issues relating to the consistency provisions of § 307 were “presently ripe for disposition”. Recognizing that the issue of ripeness presents a close question, the district court concluded, after balancing all relevant factors, that the approval under § 306 was ripe for review, noting that this approval was the “culmination of the agency review process here involved” and that “there is nothing further to be done as a part of the administrative process, other than the obligation of ‘continuing review’ under § 312(a) . .” 456 F.Supp. at 898. The court found that all parties to the action might suffer substantial hardship if judicial review were denied and concluded that the interests of all parties would be served by the resolution at the earliest practicable date of the challenges to the program’s approval. Id. at 902. In holding that no issues regarding § 307 were ripe for review, the court concluded that, “Whether the state will utilize its consistency powers improperly to retard or halt energy development [is] wholly speculative,” noting that no specific activities contemplated by plaintiffs and no anticipated refusals to certify have been presented. We agree with the district court’s findings and conclusions on the issue of ripeness, which are set forth in 456 F.Supp. at 897-903. Standard of Review After reviewing numerous cases construing the “arbitrary and capricious” standard of review, the district court recognized that deference is due an agency’s interpretation of its own regulations and ts statute it is charged with administering, and that the agency’s decision should not be disturbed unless error is so clear as to deprive its decision of a rational basis. The court referred to the factors to be considered, as set forth in Mr. Justice Frankfurter’s dissent in I.G.C. v. J-T Transport, 368 U.S. 81, 127, 82 S.Ct. 204, 7 L.Ed.2d 147 (1961), i. e., “the precision of the statutory language, the technical complexity of the relevant issues, the need for certainty as against experimentation, and the likelihood that Congress foresaw the precise question at issue and desired to express a foreclosing judgment on it.” The court concluded that all four factors “here favor according considerable deference to the federal defendants’ implicit interpretation of the NOAA program approval regulations”. 456 F.Supp. at 907 — 908. We agree with the district court and adopt its opinion with respect to “Standard of Review”, 456 F.Supp. at 903-908, and “Scope of Review”, Id. 908-912. Adoption by the State CZMA § 306(c)(1) requires that the Secretary in approving the state program find that the state “has developed and adopted a management program for its coastal zone in accordance with rules and regulations promulgated by the Secretary . .” Regulations adopted pursuant to this requirement provide that the “management program [be] . . . formally adopted in accordance with State law, or in its absence, administrative regulations . . . .” 15 C.F.R. § 923.31. In finding that the adoption of the California Coastal Zone Management Program (CZMP) met the requirements of the CZMA, the Acting Administrator considered five elements: (1) the California Coastal Act of 1976; (2) the Coastal Conservancy Act of 1976; (3) the Urban and Coastal Parks Bond Act of 1976; (4) Coastal Commission Regulations promulgated pursuant to the Coastal Act of 1976; and (5) the “Program Description” (contained in Part II of the combined State of California Management Program and Final Environmental Impact Statement (FEIS)). The first four elements present no problem. Appellants contend, however, that the “Program Description” was never “formally-adopted in accordance with State law” and that the Acting Administrator in approving the program accordingly failed to comply with the Agency’s own regulation. The district court found that only Chapter 11 of the 14 chapters of the Program Description had been approved by the California Coastal Commission. The court concluded, therefore, that the Acting Administrator’s findings that the program satisfied the requirements of CZMA could only be based on the first four elements and Chapter 11 of the “Program Description”. The court held, however, that excluding Chapters 1 through 10 and 12 through 14 of the Program Description did not invalidate the program approval, since the excluded chapters were primarily descriptive of features of the program and were not essential to the Agency’s conclusions. They were merely used as “a device, an organizational tool, to enable interested parties and the Acting Administrator to see more easily how the specific requirements of § 306 have been dealt with and satisfied”. 456 F.Supp. at 915-916. Appellants point to several specific findings in support of their conclusion that the Acting Administrator relied on the excluded chapters rather than using them merely as an “organizational tool”. We have reviewed these findings in detail. In each case the administrator referred to chapters in the Program Description that were not part of the California Program, but he then explained how various provisions in the California Program satisfied the requirements of the CZMA and the applicable regulations. We agree with the district court that the administrator merely used the excluded sections as an “organizational tool” in reaching his conclusions, that this was permissible, and therefore, the findings should not be overturned. We adopt the district court’s findings and conclusions with respect to “Adoption by the State”. 456 F.Supp. at 912-918. Specificity CZMA § 307 requires that, after the state’s management program is approved, prospective Federal licensees and permit-tees shall provide a “certification that the proposed activity complies with the state’s approved program and that such activity will be conducted in a manner consistent with the program”. No license or permit may be granted until the state has concurred with the applicant’s certification, unless the Secretary, on his own initiative or upon appeal by the applicant, finds “that the activity is consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security.” CZMA § 307(c)(3)(A). Appellants contend that the CZMA imposes a duty on the federal appellees to make findings that the state’s program contains provisions sufficiently specific to inform persons who wish to conduct activities in the coastal zone of the “rules and conditions to which they are subject”. Appellants argue that the California Program lacks the requisite specificity and the Administrator’s findings in this respect are therefore insufficient. The district court noted that the CZMA requires only that the state develop a “management program” and that this term is defined broadly by CZMA § 304(11) as “a comprehensive statement . . . setting forth objectives, policies, and standards to guide the public and private uses of lands and waters in the coastal zone”. Reviewing pertinent legislative history, the court concluded that this language does not “require that such programs establish such detailed criteria that private users be able to rely on them as predictive devices for determining the fate of projects without interaction between the relevant state agencies and the user.” 456 F.Supp. at 919. Recognizing that “Congress has granted the Secretary and Acting Administrator considerable discretion”, the court concluded further that [T]he Acting Administrator’s findings and Attachment J of the FEIS, when viewed in the context of the legislative history of the Act and of the statutory language itself, satisfy the Court that approval of the California Program has not been arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 456 F.Supp. at 921. We agree with the district court that Congress intended only that standards be sufficiently specific “to guide public and private uses” and that the Secretary was to be given considerable discretion in determining whether the state program contained the requisite specificity. Coordination with Local Programs CZMA § 306(c)(2)(A) requires the Secretary to find that the state “has coordinated its program with local, areawide, and interstate plans applicable to areas within the coastal zone existing on January 1 of the year in which the state’s management program is submitted [for approval] . ..” In response to this requirement, the Acting Administrator stated that “by virtue of the requirements of the Coastal Act that all local coastal jurisdictions must develop or amend local programs and zoning ordinances in conformance with the policies of the Coastal Act, coordination between the state’s programs and local plans is assured.” Clerk’s Record, Yol. 2 at 441. Appellants contend that this finding does not address the requirement of the statute because the statute requires coordination as of January 1 of the year of approval, while the California Program only provides for a process that assures local programs will be developed sometime in the future. Appellants argue that this exposes users in the interim to a “morass of government jurisdictions, with no resolution of the conflicts among the many local and regional zoning and land use plans”. While the Acting Administrator’s finding is not a model of clarity, we conclude that it does afford a “rational basis” for his conclusion that the California Program complies with the requirements of CZMA § 306(c)(2)(A) and accordingly was sufficient under the “arbitrary and capricious” test. See Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., supra, 419 U.S. at 290, 95 S.Ct. 438. The California Program implements a permit process which coordinates its provisions with local plans. At the time the California Program was approved by the Acting Administrator, coordination was achieved by the implementation of Local Coastal Programs. These programs constitute a process which assures that local programs are adopted by the early 1980’s which are consistent with the policies of the California Coastal Act and the CZMA. See California Coastal Act, Chapter 6, Article 2 (Cal.Public Res.Code §§ 30510 et seq.). Until Local Coastal Programs are developed, the Coastal Commission or a local government entity will issue permits, but in either case, a permit must be issued if it is consistent with California Coastal Act requirements. After the development of a Local Coastal Program, a local government entity becomes the issuing agency. Although local government entities retain the power to enforce regulations in addition to the requirements specifically set forth in the California Coastal Act, these additional requirements must “not [be] in conflict with this act”. Pub.Res. Code § 30005(a). Thus, at all times, California has a process which coordinates the coastal program with local plans and assures potential users that they will not be subject to local plans that fail to comply with the requirements of the California Coastal Act. Considering the deference to be given the Acting Administrator’s interpretation of the requirements of CZMA § 306(c)(2)(A), we conclude that his findings concerning this statutory provision were not arbitrary or capricious. Consideration of National Interest Prior to 1976, CZMA § 306(c)(8) required the Secretary in approving a state program to find that: The [state] management program provides for adequate consideration of the national interest involved in the siting of facilities necessary to meet requirements which are other than local in nature. After the Arab oil embargo, Congress in 1976 expanded the section to require that the Secretary find that: The management program provides for adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect, such state’s coastal zone) which are necessary to meet requirements which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any applicable interstate energy plan or program. In contending that the California Program failed to satisfy the mandate of § 306(c)(8), appellants first argue that in reviewing the agency’s determination, the district court misinterpreted Congressional intent in passing the statute. They maintain that Congress sought through the CZMA to induce the states to adopt coastal management programs which would include “explicit commitments” to take into account the national interest in the planning and siting of energy facilities. The Secretary’s interpretation of CZMA § 306(c)(8) is set forth in program approval regulations published on January 9, 1975, and reads in part: . The requirement should not be construed as compelling the States to propose a program which accommodates certain types of facilities, but to assure that such national concerns are included at an early stage in the State’s planning activities and that such facilities not be arbitrarily excluded or unreasonably restricted in the management program without good and sufficient reasons. No separate national interest “test” need be applied and submitted other than evidence that the listed national interest facilities have been considered in a manner similar to all other uses, and that appropriate consultation with the Federal agencies listed has been conducted. 16 C.F.R. § 923.15(b). Following a thorough analysis of the legislative history of both the 1972 Act and the 1976 Amendments, the district court concluded that the 1976 Amendment, while expressly recognizing the national interest in the planning for and siting of energy facilities, nevertheless did not alter the requirement of “adequate consideration” in § 306(c)(8) or make any changes in the degree of specificity required under the Act. Rather, recognizing that coastal states like California were currently burdened by the onshore impacts of Federal offshore (OCS) activities and likely to be burdened further by the plans for increased leases on the OCS, Congress sought to encourage or induce the affected states to step up their plans vis-á-vis such facilities. 456 F.Supp. at 923. The district court noted also the NO A A had reiterated the position it had taken since the inception of the CZMA that “the purpose of ‘adequate consideration’ is to achieve the act’s ‘spirit of equitable balance between State and national interests’.” This involves a consideration of “the act’s broader finding of a ‘national interest in the . . . beneficial use, protection, and development of the coastal zone’ (Section 302(a))”, including the requirement of subsection 302(g) of the Act that “high priority” be given to the protection of natural systems. The district court concluded accordingly that “while the primary focus of subsection 306(c)(8) is on the planning for and siting of facilities, adequate consideration of the national interest in these facilities must be based on a balancing of these interests relative to the wise use, protection and other development of the coastal zone.” 456 F.Supp. at 925. The court concluded further that NOAA had properly considered the Congressional mandate in its program approval regulations both before and after the 1976 amendment. Appellants also contend that “there is a total want” of any consideration of the national interest in the California Program, contrary to the Acting Administrator’s findings. They argue that the California Coastal Act fails to “take into account the social or economic needs of people of inland states who . . . are dependent upon use of the California coast to supply . energy needs.” In finding that the California Program complied with CZMA § 306(c)(8) requirements, the Acting Administrator first reiterated the substance of 16 C.F.R. § 923.-15(b) quoted above and then set forth the manner in which Chapter 11 of the “Program Description” and the California Coastal Act met CZMA requirements regarding the national interests. We agree with the district court that “the Acting Administrator’s finding that the Program satisfies § 306(c)(8) is supportable and hence not arbitrary or capricious” and that “[i]t proceeds from a correct interpretation of the CZMA.” 456 F.Supp. at 926. Finally, the district court noted “that both the California Program and the CZMA contain safeguards to protect plaintiffs from arbitrary exercise by the Coastal Commission of its § 307 consistency powers”. After discussing the various safeguards, the court concluded that “both as regards specific determination of inconsistency and as regards general trends in and manner of issuance of such determinations, plaintiffs are amply protected by and have various forms of recourse under the California Program itself and §§ 307 and 312 of the CZMA.” 456 F.Supp. at 926-927. We agree with the findings and conclusions of the district court with respect to “Adequate Consideration of the National Interest”, as set forth in 456 F.Supp. at 922-927. Unreasonable Restrictions of Uses of Regional Benefit CZMA § 306(e)(2) requires the Secretary in approving a state’s plan to find that the state program provides “for a method of assuring that local land and water use regulation within the coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit”. In finding that the California Program satisfied this requirement, the Acting Administrator stated: The principal methods by which California will assure that local regulations do not unreasonably restrict or exclude land and water uses of regional benefit is (1) through the application to permit decisions of policies which include consideration of regional and national interests and (2) through the development of Local Coastal Programs and port master plans which must conform to these policies and must accommodate uses of more than local importance. Clerk’s Record, Vol. II, at 451. The Administrator explained his finding by referring to specific sections of the California Coastal Act which deal with the requirements of § 306(e)(2). His finding that the California Program satisfies these requirements was supportable and not arbitrary or capricious. Conclusion From our review of the record we are satisfied that the district court reached the right conclusions in a complex case presenting a number of difficult and close questions. Although we have considered all of appellants’ contentions, in this opinion we have addressed only those which appear to be their major concern. We agree with the district court that the Acting Administrator’s findings pursuant to the CZMA were reasonable and not arbitrary or capricious. We affirm the judgment and adopt those portions of the opinion of the district court specified in this opinion. Affirmed. . The statement of undisputed facts in the district court’s opinion (456 F.Supp. at 894-95) describes the plaintiffs and defendants, and also the defendants-in-intervention, including the California Coastal Commission. . In large part we are adopting Judge Kelle-her’s opinion and shall make specific reference in this opinion to his discussion and rulings on the various issues presented. . 16 U.S.C. § 1452. . 16 U.S.C. § 1451. . 16 U.S.C. § 1454 and § 1455. . 16 U.S.C. § 1455(a). . 16 U.S.C. § 1456. Federal agencies undertaking projects in the state’s coastal zone “shall insure that the project is, to the maximum extent practicable, consistent with approved state management programs. . . ” § 1456(c)(2). Prospective Federal licensees and permittees “shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state’s approved program and that such activity will be conducted in a manner consistent with the program . . No license or permit shall be granted . until the state . . has concurred with the applicant’s certification . . . .” § 1456(c)(3)(A). The Secretary, however, “on his own initiative or upon appeal by the applicant [may find] . that the activity is consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security.” § 1456(c)(3)(A). . See also the summary of the principles of scope of review under the “arbitrary and capricious” standard set forth in Bowman Transportation v. Ark-Best Freight System, 419 U.S. 281, 287, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). . Appellants also contend that Chapter 11 was improperly adopted by the California Coastal Commission. The district court recognized that the Commission may not have complied with California law in failing to properly announce in advance that Chapter 11 would be presented to the public at a public hearing. After analyzing the state law, the court, however, “found no authority for plaintiffs’ assault on the validity of the Commission’s adoption of Chapter 11 as a ‘declaration of policy’,” and concluded that it was “duly adopted and thus properly considered by the Acting Administrator .. . .” 456 F.Supp. at 914-915. . Appellants contest in particular the administrator’s finding that the California Program complies with CZMA § 305(b)(8). This section requires that the state program include “[a] planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing the impacts from such facilities.” Appellants contend that in making this finding, the administrator had to consider Chapter 9 of the “Program Description” as part of the California Program and that the finding must be overturned since Chapter 9 is one of the chapters which the court ruled could not be considered as part of the California Program eligible for approval. We have examined this finding and note that after discussing Chapter 9, the administrator explained how portions of the California Program, which were eligible for consideration under the CZMA, satisfied the requirements of § 305(b)(8). Disregarding references to Chapter 9, we conclude that the remaining findings satisfy the arbitrary and capricious standard of review. . The district court’s detailed discussion of the “Legislative History of the CZMA” and “The Definition of ‘Management Program’ ” appears in 456 F.Supp. at 918-921. . Section 30600(b) of the California Coastal Act allows local governments to elect to assume coastal permit jurisdiction prior to completion of their Local Coastal Plan. If the local government does not exercise this option or a development is not subject to this option, “a coastal development permit shall be obtained from a regional commission, the commission on appeal, or the commission where there is no regional commission.” § 30600(c). In any case, the issuing agency must issue a permit if “the proposed development is in conformity with the provisions of Chapter 3 [of the Act] and the permitted development will not prejudice the ability of the local government to prepare a local coastal program that is in conformity with the provisions of Chapter 3 . . ..” § 30604(a). . California Coastal Act, Pub.Res.Code § 30604(b). . The district court noted that: The primary means chosen to accomplish this result was the Coastal Energy Impact Program (“CEIP”) contained in new § 308. As the Conferees explained, the purpose of the 1976 Amendments was to coordinate and further the objectives of national energy policy by directing the Secretary of Commerce to administer and coordinate, as part of the [CZMA], a coastal energy impact program. The conference substitute follows both the Senate bill and the House amendment in amending the 1972 Act to encourage new or expanded oil and natural gas production in an orderly manner from the Nation’s outer Continental Shelf (OCS) by providing for financial assistance to meet state and local needs resulting from specified new or expanded energy activity in or affecting the coastal zone. H.Rep.No.94-1298, 94th Cong., 2d Sess. 23 (1976), U.S.Code Cong. & Admin.News 1976, pp. 1820, 1821 (Legislative History at 1073). 456 F.Supp. at 923. . The district court rejected appellants’ position to the extent that they “seek not guidance with respect to the way in which coastal resources will be managed but instead a ‘zoning map’ which would implicitly avoid the need to consult with the state regarding planned activities in or affecting its coastal zone.” 456 F.Supp. at 926. . Revised program approval regulations were promulgated after the 1976 Amendment (43 Fed.Reg. 8378, March 1, 1978). The court considered the revised regulations because “they reflect NOAA’s interpretation of any changes wrought by the 1976 Amendments, the former regulations against which the California Program was tested having been promulgated after the Arab oil embargo but before the 1976 Amendments.” 456 F.Supp. at 924.

American Whitewater v. Tidwell

Affirmed by published opinion. Judge HARRIS wrote the opinion, in which Judge KING and Senior Judge HAMILTON joined. PAMELA'HARRIS, Circuit Judge: In 1974, Congress selected the 57 miles of the Chattooga River (the “Chattooga” or the “River”) and 15,432 acres of adjacent land for preservation under the Wild and Scenic Rivers Act (the “WSRA” or the “Act”), 16 U.S.C. § 1274 et seq. (2006). Since then, the United States Forest Service (the “Forest Service”) has managed the Chattooga under the WSRA. Prior to 2012, longstanding Forest Service policy allowed non-motorized rafting or “floating” on the lower portions of the Chattooga, but prohibited the practice on the 21-mile northernmost section of the River (the “Headwaters”). In 2012, after a lengthy review, the Forest Service revised its management plan for the Chattooga to allow floating on most of the Headwaters during the winter months, when flows are highest and conditions are best. American Whitewater, Plaintiff-Appellant, argues that the revised plan does not go far enough and that the remaining limits on floating are inconsistent with the WSRA and arbitrary and capricious in violation of the Administrative Procedure Act (the “APA”). 5 U.S.C. § 702 et seq. (2006). On the other hand, two intervening parties, Georgia ForestWatch (“Forest-Watch”), a not-for-profit environmental group, and the Rust family (the “Rusts”), argue that the Forest Service’s decision to allow any floating already goes too far. They contend that the WSRA prohibits any floating on the Headwaters whatsoever, and that the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2006), in the course of reaching its decision. The district court rejected both sets of challenges and found that the Forest Service’s revised plan “carefully balance[s] the wide-ranging interests advocated by the several parties and participants.” American Whitewater v. Tidwell, 959 F.Supp.2d 889, 860 (D.S.C.2013) (“Tidwell”). We agree with the district court’s well-reasoned opinion and affirm. I. A. The WSRA establishes a national policy to preserve rivers of “outstandingly remarkable value.” Once designated under the WSRA, rivers are managed by an administrative agency — in this case, the Forest Service — to prevent degradation of their condition and preserve their pristine quality for future generations. See 16 U.S.C. §§ 1271, 1274, 1281(a) (2006). The statutory command is twofold: the outstandingly remarkable values, or “ORVs,” that led Congress to designate the river must be “protecte[d] and enhance[d],” while other uses may be limited if they substantially interfere with the public’s use of those ORVs. 16 U.S.C. §§ 1271,1281(a). The Forest Service manages the Chattooga through the Chattooga Wild and Scenic Development Plan. As relevant here, the original 1976 version of the plan — as well as each of the subsequent versions published in 1985, 2002 and 2004 — limited floating to the lower portions of the Chattooga. American' Whitewater first challenged the Forest Service’s ban on floating on the Headwaters in 2002. ■ In 2005, a Forest Service Reviewing Officer agreed with American Whitewater and found that the 2004 development plan did not “provide an adequate basis for continuing the ban” on floating on the Headwaters. J.A. at 587. He directed the Forest Service to study the issue and prepare a new plan in accordance with its results. Id. To comply with the Reviewing Officer’s ruling, the Forest Service began by preparing an action plan to establish capacity limits for use of the Chattooga and to measure the expected impact of Headwaters floating on the Chattooga’s ORVs. It then integrated a wide range of data on compatible recreational uses of the Headwaters in a 2007 report entitled Capacity & Conflict on the Upper Chattooga River (the “2007 Report”). The Forest Service also actively involved the public. It held six well-attended meetings to explain the review process and solicit feedback. Over seven years, members of the public submitted more than 4,300 responses and comments. These efforts culminated in a 2012 Environmental Assessment presenting the Forest Service’s findings. The Forest Service reached three conclusions of note here. First, it found that solitude, the “opportunity] for remoteness ... in a spectacular scenic setting,” was important to many users of the Headwaters. J.A. at 962. Second, it found that there was a significant likelihood of user conflict between floaters and anglers were the Headwaters floating ban to be lifted completely. J.A. at 981-82, 1273. Third, it determined that floating conditions are optimal during the winter months when flows are heavy, and that fishing conditions are less ideal during that same time period. J.A. at 974-76. In connection with these findings, the Forest Service analyzed several alternative plans for the Headwaters, ranging from leaving the ban on floating in place and unchanged to lifting the ban completely. The alternative it selected, numbered Alternative 13A, falls in the middle of that range. It permits floating on the Headwaters, an activity that the Forest Service had not allowed since 1976, but subjects that floating to certain limits. Specifically, floating is permitted on most of the Headwaters between December 1 and April 30, on days when flows are greater than 350 cubic feet per second. The Forest Service explained that this would allow for floating “in the section of the Chattooga ... that boaters rated highest for creek boating” and at the time of year “historically offering] the best flows for these types of boating opportunities,” while also preserving “opportunities for year round boat-free, cold water angling” in the reach that “attracts the highest angling use” and “provides the least challenging area for whitewater boating.” J.A. at 1402-03. Because the Forest Service determined that Alternative 13A would not have a “significant impact on the human environment,” it found that NEPA did not require preparation of an Environmental Impact Statement. Instead, the Forest Service released its decision through a Decision Notice and Finding of No Significant Impact (together with the 2012 Environmental Assessment, the “2012 Decision”). B. American Whitewater filed its first complaint in this action on October 14, 2009, while the study process was still ongoing and before the Forest Service decided to partially lift the restrictions on floating. The Rusts, who own approximately 1.7 miles of the Headwaters’ shoreline, intervened, seeking a declaratory judgment that the portion of the Headwaters running through their property is not navigable and thus outside the Forest Service’s authority, and an injunction against any future attempt by the Forest Service to manage this portion of the Chattooga. American Whitewater filed an amended complaint, eliminating the allegations related to the portion of the Chattooga running through the Rusts’ property, and the district court dismissed the Rusts’ claims for lack of a “case or controversy” under Article III of the Constitution. American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 151, 2012 WL 589063 (Feb. 22, 2012). ForestWatch moved to intervene in August of 2011, in support of the Forest Service’s then-existing ban on Headwaters floating. The district court granted ForestWatch’s motion on May 1, 2012, after publication of the 2012 Decision partially lifting the floating ban. However, the district court limited the scope of Forest-Watch’s intervention to defending the Forest Service against American Whitewater’s challenge to the remaining floating restrictions. American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012). After publication of the 2012 Decision, American Whitewater filed its second amended complaint, arguing that the remaining limits on floating violate the WSRA. In the alternative, American Whitewater argued that the Forest Service’s decision violates the APA because the Forest Service did not have an adequate basis for its conclusion that restrictions on floating are needed to balance competing recreational uses on the Chattooga. See 5 U.S.C. § 706(2)(A) (2006). ForestWatch and the Rusts also were dissatisfied with the 2012 Decision. ForestWatch, arguing that the remaining limits on floating are insufficiently strict to meet the WSRA’s mandate, filed a separate action in the district court. See Georgia ForestWatch v. Bradley, No. 8:12-cv-3455-MGL (Dec. 6, 2012). The district court denied a motion to consolidate the two actions, and ForestWatch’s lawsuit remains pending today. The Rusts also refíled their cross-claims, seeking a declaration that the Headwaters running through their property are non-navigable and asserting that the Forest Service’s analysis did not satisfy NEPA. The district court granted the Forest Service’s motion for judgment on the administrative record on April 16, 2013. It rejected each of American Whitewater’s claims, as well as the Rusts’ NEPA claims, holding that the record provided ample support for the Forest Service’s determination that conflicts between floaters and other recreational users justified the remaining floating restrictions and that the Forest Service complied with NEPA. It also dismissed the Rusts’ request for declaratory judgment as premature, and refused to consider ForestWatch’s claims against the Forest Service because they went beyond the limited scope of its intervention. These timely appeals followed. II. The crux of American Whitewater’s claim is that the Forest Service struck the wrong balance when it opened the Headwaters to floating partially but not entirely, maintaining some restrictions on floating in order to avoid conflicts with other recreational users. According to American Whitewater, there is no basis in the record for the Forest Service’s concern about potential conflicts, and the remaining restrictions are arbitrary and capricious under the APA as well as contrary to the WSRA. Like the district court, we disagree. A. We review the district court’s grant of judgment on the administrative record de novo. Crutchfield v. Cnty. of Hanover, 325 F.3d 211, 217 (4th Cir.2003). But like the district court’s, our review under the APA is “ultimately narrow and highly deferential.” Webster v. U.S. Dep’t of Agrie., 685 F.3d 411, 422 (4th Cir.2012). We may set aside an agency’s 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) (2006). In determining whether an agency action is arbitrary, capricious, or ótherwise an abuse of discretion under the APA, a reviewing court must ensure that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th Cir.2012) (alteration in original) (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009)). But so long as the agency “provide[s] an explanation of its decision that includes a rational connection between the facts found and the choice made,” its decision should be sustained. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir.2009) (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). Our review is particularly deferential when, as is the ease here, “resolution of th[e] dispute involves primarily issues of fact” that implicate “substantial agency expertise,” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and the agency is tasked with balancing often-competing interests. See Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th Cir.2000). We do not doubt that in this case there is a “rational connection between the facts found and the choice made,” Ohio Valley Envtl. Coal., 556 F.3d at 192. The alternative selected by the Forest Service opens substantial portions of the Headwaters for the first time to floating, from the months of December to April on days when flows exceed 350 cubic feet per second. As the 2012 Decision explains, this option allows for floating when water conditions are best, and also easiest to predict, so that users can plan ahead to take advantage of the best opportunities for Headwaters floating. J.A. at 1459. At the same time, by retaining the ban on floating during the spring and summer months, the Forest Service has addressed the documented concerns expressed by other recreational users of the Headwaters, providing for a floater-free environment when conditions are best for fishing and hiking. J.A. at 1460-61. TheForest Service also tailored the remaining restrictions by reach, reserving four miles of the Headwaters with the least challenging floating conditions, but some of the best angling opportunities, for fishermen. J.A. at 1460. Finally, as described in the 2012 Decision, the Forest Service’s balance between competing uses also complies with the maximum capacities for the Headwaters as set out in the 2007 Report. J.A. at 1458. Contrary to American Whitewater’s assertions, the record amply supports the Forest Service’s conclusions regarding potential conflicts among recreational users. The Forest Service relied in part on a history of previous conflicts between recreational users, reviewing evidence from the Headwaters prior to the floating ban, from the lower portion of the Chattooga where floating always has been permitted, and from several proxy rivers. And it assembled significant data pointing to the potential for-future conflicts, counting cars to estimate usage, developing expected encounter estimates, and analyzing a wealth of public comments including many from current users who expressed a preference for solitude and an isolated experience. J.A. at 966, 959-1038, 1031-32, 960-62, 1273-74; 'see also Tidwell, 959 F.Supp.2d at 853. American Whitewater argues that the Forest Service was required to authorize floating during the study period before it could accurately assess the likelihood of conflicts on the Headwaters. In other words, in order to justify maintenance of its existing restrictions, the Forest Service first would have to eliminate them so that recreational users could experience actual conflicts. Br. for American Whitewater at 35. We cannot accept this counter-intuitive argument. Where the agency’s conclusion otherwise rests on a firm factual basis, nothing in the APA requires it to experiment with a practice before continuing preexisting policies. We will not second guess an agency’s reasonable choice of methodology. See Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir.1999). At bottom, American Whitewater disagrees with the Forest Service’s factual conclusions and the balance it chose to strike. But the APA does not give us license to second-guess an agency’s well-reasoned decision simply because a party disagrees with the outcome. The Forest Service has provided a cogent justification for the remaining limits on Headwaters floating, supported by the record, and that is sufficient to sustain its decision under the APA. B. American Whitewater also contends that the Forest Service’s remaining restrictions on Headwaters floating violate § 1281 of the WSRA, which requires the Forest Service to “protect and enhance the values which caused” the Chattooga to be designated for preservation “without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281(a). American Whitewater argues, first, that “floating” is a value that led Congress to designate the Chattooga, and that under the “protect and enhance” standard, the Forest Service has no choice but to lift all restrictions on floating. Second, American Whitewater argues that floating cannot be limited because it does not “substantially interfere” with any protected recreational use of the Headwaters. Like the district court, we disagree on both counts. 1. When Congress designated the Chattooga for preservation under the WSRA, it did not expressly identify the River’s ORVs. In such cases, that task falls to the relevant administrative agency, which must define a river’s “values” in accordance with published interagency guidelines. See Interagency Wild and Scenic Rivers Coordinating Council, The Wild & Scenic River Study Process 12-15 (1999). Here, the Forest Service identified “recreation” generally, as opposed to specific recreational uses such as floating or fishing, as an ORV of the Chattooga. J.A. at 915. American Whitewater argues that the Forest Service erred, and that floating itself is an ORV subject to the Act’s “protect and enhance” standard. Like the district court, we find that the Forest Service’s decision to designate “recreation” as the relevant ORV was entirely reasonable, and that floating is not a Chattooga River value that must be “protecte[d] and enhance[d]” under the WSRA. To begin with, although the WSRA does not define “outstandingly remarkable values,” its text seems to contemplate general categories such as “recreational value,” rather than specific uses such as “hiking” and “fishing.” Section 1271 of the WSRA lists the “outstandingly remarkable” values that are to be protected by the Act: “scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar- values.” 16 U.S.C. § 1271 (2006). “Floating value” is not “similar” to, say, “historical value”; it is pitched at an entirely different level of specificity. The phrase “other similar values” is most naturally read to refer to ORVs at the same level of categorical generality as the examples listed before it. See Washington State Dep’t of Soc. & Health Sens. v. Guardianship Estate of Kejfeler, 537 U.S. 371, 384,'123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (“[WJhere general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”) (citations omitted); Sokol v. Kennedy, 210 F.3d 876, 879 n. 5 (8th Cir.2000) (reading “values” in § 1281(a) together with the list of enumerated values in § 1271). Notwithstanding the awkward textual fit, American Whitewater insists that Congress intended to identify floating as a protected value when it designated the Chattooga under the WSRA. In fact, the Forest Service’s decision to identify “recreation” as the relevant value is fully consistent with the congressional record. For example, the 1971 Forest Service report that led to Congress’s designation of the Chattooga as a protected river does not single out floating from other forms of recreation; instead, it identifies “hiking, floating — including canoeing and rafting— and primitive camping” as potential uses of the Chattooga “recreation resource.” Designation would be desirable, according to the 1971 report, because it would preserve not just one particular form of recreation, but rather “full enjoyment of river-related recreation activities” in general. The Senate and House Reports accompanying the Chattooga’s designation under the WSRA likewise refer to a variety of “recreational” possibilities without giving special status to any one recreational use or pursuit. The out-of-context references to floating cited by American Whitewater do not persuade us otherwise. For example, American Whitewater quotes this passage from the 1971 report: “To see and enjoy much of the river requires considerable time and effort from the recreationist, whether he be fisherman, canoeist, hiker or camper.” But this passage, like the others cited by American Whitewater, actually is more consistent with the Forest Service’s identification of recreation writ large as the relevant ORV, in its description of floating as only one recreational use among many. American Whitewater has not challenged the Forest Service’s discretion to identify ORVs when Congress has not done so. Cf. Interagency Wild and Scenic Rivers Coordinating Council, supra, at 12-15; Sokol, 210 F.3d at 879-80 (in setting boundaries for protected river areas, agencies must identify and seek to protect ORVs). In this case, the Forest Service made its determination after careful consideration of relevant administrative guidance and voluminous reports describing the Chattooga’s characteristics. J.A. at 913-19. We find that the Forest Service reasonably and lawfully identified “recreational value” as the relevant ORV, and that floating is not a value of the Chattooga that must be protected and enhanced under § 1281. 2. As the Forest Service recognized, its determinations about how best to protect and enhance the Chattooga’s recreational ORV necessarily involve “trade-offs” among competing recreational uses. J.A. at 915. Congress left the requisite calibration to the Forest Service, providing in § 1281 that agency management plans “may establish varying degrees of intensity” for protection based on “special attributes” of a river, 16 U.S.C. § 1281(a), and the balance struck by the Forest Service here is entitled to substantial deference. See Hells Canyon Alliance, 227 F.3d at 1174-75. Nevertheless, American Whitewater argues that under the terms of § 1281, the Forest Service may not restrict floating in any way because it has not shown that floating “substantially interferes” with other recreational uses. The district court rejected this claim, holding that the record supported a finding of “substantial interference.” Tidwell, 959 F.Supp.2d at 852-54. While we agree with that assessment, we also think that American Whitewater’s argument is flawed in its premise: Floating is itself a “public'use” of the recreational value, not an “other use” subject to the substantial interference standard. Section 1281(a) divides “uses” of designated rivers into two mutually exclusive categories: There are “public use[s]” of ORVs, like the recreational value identified in this case; and then there are “other use[s],” to be limited when they interfere substantially with public use and enjoyment of an ORV. For instance, hiking would be a “public use” of the Chattooga’s recreational value; operating a highway, on the other hand, might be an “other use” subject to restriction if it substantially interfered with hiking or any other component of the recreational ORV. Floating clearly is a form of “public use and enjoyment” of the Chattooga’s recreational value. It cannot also be an “other use” or the statutory scheme would make no sense, directing the Forest Service to limit floating in order to protect it. Because floating is not an “other use” for purposes of § 1281(a), limits on floating are not governed by the substantial interference standard. In any event, we agree with the district court that the record evidence of user conflict developed by the Forest Service, discussed above, is sufficient to show that floating can interfere substantially with other recreational uses. Tidwell, 959 F.Supp.2d at 853-54. For that reason, as well, we hold that the remaining restrictions on floating on the Headwaters are consistent with the WSRA. III. The Rusts present a narrower challenge to the 2012 Decision, intended to protect what they see as their private property rights in land along the Headwaters. First, they ask us to declare the 1.7-mile portion of the Headwaters running through their land non-navigable, which would make it private property rather than a public waterway and preclude any Forest Service attempt to provide public access. Second, the Rusts argue that the 2012 Decision is invalid under NEPA be-„ cause the Forest Service failed to provide a sufficiently detailed analysis of the risk that floaters would trespass across their land to reach newly opened portions of the Headwaters. A. To be clear, the 2012 Decision does not authorize any floating on the Rusts’ property. It does not cover the portion of the Headwaters that concerns the Rusts at all, in accordance with Forest Service policy treating rivers as non-navigable and private until found otherwise. J.A. at 943. Nor has the Forest Service taken any steps toward a determination of navigability. Absent any attempt by the Forest Service even to lay the groundwork for an exercise of its regulatory authority, the Rusts’ request for a declaratory judgment fails to present a justiciable controversy. We may address only disputes that are “definite and concrete, touching the legal relations of parties having adverse interests.” Aetna Life Ins. Co. v. Ha-worth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 6Í7 (1937). The same standard applies to a request for declaratory relief and requires a controversy of “sufficient immediacy and reality [as] to warrant the issuance of a declaratory judgment.” White v. Nat’l Union Fire' Ins. Co. of Pittsburgh, Pa., 913 F.2d 165, 167-68 (4th Cir.1990) (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). The Rusts’ claims do not meet this standard. The Rusts acknowledge that the Forest Service would need to take additional action before it could manage this portion of the Chattooga. The Forest Service has not done so. Nor has it argued that this portion of the Chattooga is subject to Forest Service oversight. In fact, the Rusts agree that the Forest Service has consistently treated this segment of the Chattooga as non-navigable, private, and outside its authority. J.A. at 943; S.J.A. at 2199. To the extent that American Whitewater could be considered an adverse party in this context—which we doubt—it too disavows any attempt to declare this section of the Chattooga navigable. Reply Br. for American Whitewater at 21, 22. We will not issue an advisory opinion, addressing a question that is not in actual dispute. Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (“[T]he oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.”); Shenandoah Valley Network v. Capka, 669 F.3d 194, 202 (4th Cir.2012) (“[A] dispute is lacking here—and because we cannot issue an advisory opinion—we have no authority to adjudicate this suit.”). The Rusts’ declaratory judgment claim is dismissed. B. The Rusts also argue that the Forest Service violated NEPA by failing to analyze the risk that opening portions of the Headwaters to floating could lead to trespass on Rust property. They insist that floaters are likely to attempt to reach the River by crossing their property illicitly, instead of using the trails and parking lots already available to the public. The district court correctly held that this prospect is so speculative that no NEPA analysis is required. NEPA encourages conservation not by imposing substantive obligations on agencies, but by requiring that agencies consider the environmental consequences of their actions and present them to the public for debate. Natl Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 184, 185 (4th Cir.2005). Accordingly, our review under NEPA is limited to ensuring that an agency has taken a “hard look” at the environmental impacts of a proposed action. Id. at 185. Moreover—and dispositive here— an agency need consider only the “reasonably foreseeable” effects of its decisions. See Webster, 685 F.3d at 429 (“[Although agencies must take into account effects that are reasonably foreseeable, they generally need not do so with effects that are merely speculative.”); see also 40 C.F.R. § 1508.8(2008). Any possible increase in the risk of trespass on the Rusts’ land does not meet this standard. As the Forest Service points out, the uppermost portion of the Headwaters opened to floating by the 2012 Decision is downstream from the Rusts’ property line. The uppermost put-in location is another quarter-mile further downstream and easily accessible to the public via a trail from the existing Green’s Creek parking lot. Nothing in the record gives us reason to think that floaters would prefer a less direct path across the Rusts’ uncleared land. The situation might be different if the Forest Service had allowed floating upstream of the Rusts’ land—but the agency rejected that option, precisely because it might present an increased risk of trespass. J.A. at 779, 911, 943. The Rusts’ response to this commonsense proposition is unconvincing. They rely on a few comments submitted by American Whitewater during the review process predicting that floaters would prefer to and eventually would launch from Grimshawe’s Bridge, north of the Rusts’ property. That, however, is a far cry from expressing an intent to trespass illegally, and American Whitewater has denied repeatedly that it intends to violate the law. Otherwise, the Rusts point to a trespasser’s account from forty years ago and a stray newspaper report. Neither explains why floaters might be expected to trespass under the Headwaters’ present conditions. Even assuming that a heightened risk of trespass was reasonably foreseeable, the Forest Service’s discussion of that risk satisfies NEPA. The Forest Service presented the Rusts’ concerns to the public and explained that they were addressed by the continued ban on floating above Green’s Creek, and the Rusts’ property. J.A. at 911, 943. In this context, that discussion was sufficient; agencies have discretion to determine which issues merit detailed discussion, and here the risk of trespass or any associated environmental impact was not so significant that more was required. See Nat’l Audubon Soc’y, 422 F.3d at 186 (“A ‘hard look’ is necessarily contextual.”); Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C.Cir. 1981) (“Detailed analysis is required only where impacts are likely.”). Review under NEPA is not a vehicle for “flyspeck[ing]” agency analysis and discussion, Nat’l Audubon Soc’y, 422 F.3d at 186, and we find that the Forest Service has met its NEPA obligations. IV. Finally, we have the claims of Forest-Watch, which, like the Rusts, intervened in this case below. The district court limited the scope of ForestWatch’s intervention to defending the Forest Service’s remaining restrictions on floating on the Headwaters. ForestWatch now takes a different tac'k, arguing that the Forest Service erred by permitting any floating at all, and raising claims against the partial lifting of the floating ban under NEPA and the WSRA. These claims, the subject of a separate ForestWatch action against the Forest Service now pending before the district court, go well beyond the scope of Forest-Watch’s clearly delineated interest in this litigation and are dismissed. The district court carefully cabined ForestWatch’s involvement in this litigation to the terms of its intervention order, striking ForestWatch’s plea for relief against the Forest Service as beyond the scope of its intervention. See American Whitewater v. Tidwell, No. 8:09-ev-02665-MGL, ECF No. 254 (Feb. 25, 2013) (text order). It did not reach ForestWatch’s arguments against the Forest Service and the partial opening of the Headwaters to floating, instead explicitly “limiting] its findings to the parties with claims pending” in the case. Tidwell, 959 F.Supp.2d at 850. The merits of ForestWatch’s claims against the Forest Service will be considered by the district court in ForestWatch’s separate action, not by this court for the first time on appeal. See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir.' 1998) (“[Tissues raised for the first time on appeal generally will not be considered.”) (internal quotation marks omitted). What ForestWatch may appeal, however, is the underlying district court ruling on its motion to intervene. The district court granted ForestWatch’s motion to intervene as of right but also limited ForestWatch to “[defending against [American Whitewater’s] claim for declaratory and injunctive relief.” American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012). ForestWatch now argues that the district court erred in imposing that limit on the scope of its intervention. Finding no reversible error, we affirm. The parties dispute the appropriate standard for our .review of the limits on ForestWatch’s intervention, with Forest-Watch arguing for de novo review and the Forest Service for an abuse of discretion standard. We need not reach this question because, as ForestWatch’s counsel candidly admitted at oral argument, our review ultimately hinges on whether the district court’s decision to limit intervention was fundamentally unfair. See Columbus-America Discovery Grp. v. Atlantic Mut. Ins. Co., 974 F.2d 450, 470 (4th Cir.1992). Under any standard of review, there has been no fundamental unfairness here. ForestWatch’s argument to the contrary is that the district court did in fact address its claims against the Forest Service in resolving this case, so that ForestWatch will be denied the opportunity to raise them again in its separate suit. We read the record differently, and believe that the district court amply preserved Forest-Watch’s opportunity to assert its claims in its pending lawsuit. First, in denying a motion to consolidate ForestWateh’s action with the present case, the district court expressly found that “the outcome or result in one case i[s] not dispositive or dependent on the outcome of the other.” J.A. at 1886-88. It then proceeded to insulate one case from the other by explicitly limiting its decision below so as to exclude ForestWatch’s claims against the Forest Service. Tidwell, 959 F.Supp.2d at 850 (“[Although the court has considered Georgia ForestWatch’s arguments and will discuss them herein, the court limits its findings to the parties with claims pending in this case.”). ForestWatch points to snippets of language in the district court opinion affirming the 2012 Decision as evidence that its claims against that decision already have been decided against it. But read in context, those passages uphold the 2012 Decision only as against the Rusts’ or American Whitewater’s claims, referenced in each case on the same page, if not in the same paragraph, as the cited language. We are confident that nothing in the district court’s careful opinion will preclude ForestWatch from pressing its claims in its separate suit. Nor, we should note, should anything in our opinion today be understood as resolving ForestWatch’s separate claims against the Forest Service. V. For the reasons set forth above, we affirm the judgment of the district court. AFFIRMED . We use the term "floating” throughout to refer to the class of hand-powered, river-going recreational activities that includes canoeing, kayaking, and whitewater rafting. . Together with several other not-for-profit hobbyist organizations and interested individuals, "American Whitewater.” . Citations herein to "J.A. at -” refer to the contents of the Joint Appendix filed by the parties in this matter. . In its brief, the Forest Service addressed this claim by defending the record on “substantial interference,” which we address in turn. At oral argument, however, the Forest Service made clear that it was not conceding American Whitewater's reading of the statute or application of the substantial interference standard. . We reject American Whitewater’s remaining claims for the reasons given by the district court. The record adequately supports the continued ban on floating on the Chattooga’s tributaries. Tidwell, 959 F.Supp.2d at 857-58. And American Whitewater’s challenges based on the Forest Service’s policy manual fail at the outset because the policy manual does not have the force of law. Id. at 864. . In light of our disposition of the Rusts’ claims we need not address the Rusts’ motion to strike from the record certain features of maps included in the Forest Service's brief. American Whitewater v. Tidwell, Case No. 13-1960, ECF No. 112 (Sept. 11, 2014). We have not relied on the contested features and they have played no role in our decision. Accordingly, the Rusts’ motion to strike is dismissed. . To the extent that ForestWatch appeals from the district court's denial of its motion to consolidate, we affirm. The district court ably managed the range of parties and interests involved in this case, and we see no basis for disturbing its judgment about how best to manage its docket. See Arnold, v. E. Airlines, Inc., 681 F.2d 186, 192 (4th Cir.1982) (consolidation decisions are "necessarily committed to trial court discretion” and reviewed only for abuse of discretion).

Great Old Broads for Wilderness v. Kimbell

OPINION GOULD, Circuit Judge: This case arises out of the long and contentious process to repair a flood-damaged road in a sensitive area of the Humboldt-Toiyabe National Forest in Elko County, Nevada. A related dispute reached us twice before, when we ordered that Appellants Great Old Broads and the Wilderness Society (collectively, “Great Old Broads”) be allowed to intervene in court-directed settlement talks to determine how best to repair or replace the road, rejecting timeliness and standing challenges. See United States v. Carpenter (Carpenter I), 298 F.3d 1122, 1125 (9th Cir.2002); United States v. Carpenter (Carpenter II), 526 F.3d 1237, 1240 (9th Cir.2008). Great Old Broads now appeals the district court’s grant of summary judgment to the United States Forest Service (“Forest Service”) on Great Old Broads’s claims related to the Forest Service’s record of decision (“ROD”) determining the method for restoring the South Canyon Road as a part of the Jarbidge Canyon Project (the “Project”). The Project was an effort to reestablish the South Canyon Road after flood waters damaged the road in 1995, eliminating vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness. Great Old Broads sought review in federal court, contending that the Forest Service’s approval of the Project violated (1) the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600-1687, because the Project offended the Fisheries and Wildlife Restoration standard FW2 of the Inland Native Fish Strategy (“INFISH”), which is incorporated into the Humboldt National Forest Land and Resource Management Plan (“Humboldt Plan”); (2) Executive Order 11988, (“EO 11988”), 42 Fed. Reg. 26951 (1977); and (3) the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370f. The district court gave summary judgment to the Forest Service, holding that Great Old Broads did not exhaust its administrative remedies and, alternatively, that Great Old Broads’s claims failed on the merits. We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court’s conclusion on exhaustion and affirm its alternate decision on the merits. I. BACKGROUND Jarbidge Canyon is in the northeast corner of Nevada, between Twin Falls, Idaho, and Elko, Nevada. The Jarbidge River flows north from the Jarbidge Wilderness into Idaho, where it joins the Bruneau River and eventually the Snake and Columbia Rivers. The Jarbidge River is home to the only population of bull trout known to exist south of the Snake River. This population has been isolated from other bull trout for more than 100 years by a combination of human and natural barriers. The South Canyon Road (indexed as Forest Road # 064) follows the West Fork of the Jarbidge River through Jarbidge Canyon. The road dates to 1909, when gold was discovered in the canyon, leading to one of the last gold rushes in the United States and spurring development of access roads throughout the canyon. The disputed segment of the road was completed between 1911 and 1918. In 1974, the road was closed above Snowslide Gulch because annual landslides made maintenance impractical. Until 1995, the South Canyon Road gave the only motorized-vehicle access to the wilderness area at Snowslide Gulch. The road climbs one mile from Pine Creek Campground to the Urdahl Concentrated Use Area (“Urdahl”) and then another half mile to Snowslide Gulch. In 1995, the Jarbidge River flooded, making this part of the South Canyon Road unpassable to passenger vehicles for at least the fifth time since 1970. In 1997, the Forest Service prepared an environmental assessment and made a finding of no significant impact (“FONSI”) for the recommended repair of the entire South Canyon Road. Trout Unlimited mounted an administrative challenge to this FONSI, arguing that the proposed reconstruction would harm the bull trout population and habitat, and suggesting that harm would lead to the trout’s listing under the Endangered Species Act (“ESA”). The Regional Forester remanded the environmental assessment to the Forest Service to consider Trout Unlimited’s claims. In June 1998, the United States Fish and Wildlife Service (“FWS”) proposed listing the Jarbidge River bull trout as a threatened species under the ESA. At the same time, after receiving comments on its 1997 environmental assessment and conducting more analysis in response to Trout Unlimited’s suit, the Forest Service published a second environmental assessment. This 1998 environmental assessment identified a hiking trail as the preferred alternative, eliminating motorized access along the entire relevant stretch of the South Canyon Road. In response to this proposed ESA listing and the recommendation of the 1998 environmental assessment, Elko County unilaterally directed its road department to begin repair of the South Canyon Road, citing its need to access the South Canyon to fight forest fires. While rebuilding the road, Elko County diverted the river into a straight channel. This channelization lifted a plume of sediment that stretched 3.5 miles down the river and damaged the river bank. Elko County’s repair work was blocked by the Nevada Division of Environmental Protection, but the repairs had so damaged the river habitat that FWS issued an emergency listing of the Jarbidge bull trout as endangered in August 1998. Emergency Listing of the Jarbidge River Population Segment of Bull Trout as Endangered, 63 Fed. Reg. 42757, August 11, 1998. Predicting that “impacts from the road reconstruction to bull trout habitat will likely remain for years,” FWS permanently listed the bull trout as threatened on April 8, 1999. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Jarbidge River Population Segment of Bull Trout, 64 Fed. Reg. 17110, April 8, 1999. The Forest Service and Elko County tried to negotiate a plan to reopen the road over the next few months, but this effort failed. Frustrated by lack of progress and determined to enable vehicle access to the wilderness area, a local citizens’ group calling itself the “Shovel Brigade” decided to reopen the road by hand. In October of 1999, District Judge Hagen blocked the Brigade’s plan to reopen the road and required the Brigade, Elko County, and the Forest Service to enter confidential mediation. Off-road vehicle (ORV) riders continued to enter the South Canyon, undeterred by road conditions and the Forest Service’s attempts to block access. These ORVs established trails along the length of the washed-out road and further damaged the river habitat. After months of unsuccessful talks, the Shovel Brigade again made plans to reopen the road by hand. This time the Brigade styled its effort as a protest scheduled on July 4, 2000. The district court did not enjoin the Brigade from its plan, and the Brigade successfully opened a rudimentary, quarter-mile road. In response, the United States charged members of the Shovel Brigade with trespassing and renewed a suit against Elko County for damage caused by the County’s earlier road work. Elko County entered a cross-claim to quiet title to a right of way in the South Canyon Road under Revised Statute 2477 (RS 2477). Judge Hagen again ordered the Forest Service, Elko County, and the Shovel Brigade (represented by named defendant John Carpenter) into confidential settlement talks. On March 2, 2001, the parties told the court that they had reached an agreement. Carpenter I, 298 F.3d at 1124. In the proposed settlement agreement (“Proposed Settlement”), (1) the parties released all claims against each other; (2) the Forest Service recognized Elko County’s RS 2477 right of way and agreed to allow the County to restore the South Canyon Road; and (3) Elko County and Carpenter agreed that the United States had authority to manage the land in accord with federal environmental laws and promised to obtain Forest Service authorization before performing any work on the South Canyon Road. At this point, the details of the Proposed Settlement were publicized, and Great Old Broads moved to intervene as a defendant in Elko County’s Quiet Title Act claim. Id. Great Old Broads claimed that the Proposed Settlement “improperly ceded a property interest in the road to the County of Elko, thereby substantially diminishing the environmental protections for the adjacent wilderness areas.” Id. The district court rejected Great Old Broads’s motion as untimely and accepted the Proposed Settlement. Id. Great Old Broads appealed. We vacated the approval of the Proposed Settlement and ordered that Great Old Broads be allowed to intervene. Id. at 1125. Great Old Broads renewed its motion to intervene in the district court on the Quiet Title Act claim and filed Administrative Procedure Act (“APA”) cross-claims against the United States, challenging the settlement under NEPA, the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and Forest Service regulations, 36 C.F.R. § 251. Carpenter II, 526 F.3d at 1239. The district court held that Great Old Broads lacked standing to challenge Elko County’s Quiet Title Act claim. Id. And although the district court allowed Great Old Broads to intervene on its other claims, it dismissed them on the ground that the Attorney General’s decision to settle was not reviewable under the APA. Id. Nevertheless, the district court recognized that “the government circumvented certain procedural mandates imposed by Congress,” so the district court stayed its approval until the- United States demonstrated that the Proposed Settlement complied with the environmental statutes and regulations raised in Great Old Broads’s cross-claims. Id. at 1239-40. After entering this order, Judge Hagen retired, and Judge Hunt succeeded to judicial responsibility on the case. Id. at 1240; see Wilderness Soc’y v. U.S. Forest Serv., 3:07-CV-00170-RLH, 2011 WL 1042612 (D.Nev. Mar. 17, 2011). Judge Hunt lifted the stay, relieving the government of its obligation to demonstrate that the Proposed Settlement did not violate the environmental laws identified by Great Old Broads. Carpenter II, 526 F.3d at 1240. After lifting the stay, Judge Hunt held hearings on the merits of the Proposed Settlement. Id. Great Old Broads was not permitted to present evidence or participate as a party. Id. After these hearings, the district court approved the Proposed Settlement, and Great Old Broads appealed. Id. We again reversed the district court, holding that its ruling that Great Old Broads did not have standing to intervene in the Quiet Title Act claim was foreclosed by our earlier decision. Id. (citing Carpenter I, 298 F.3d at 1125-26). We further held that Great Old Broads’s cross-claims were reviewable under the APA. Id. at 1241-42. We vacated the approval of the Quiet Title Act settlement and reversed the dismissal of Great Old Broads’s cross-claims. Id. at 1243. While Great Old Broads litigated its right to intervene, Elko County and the Forest Service worked to put the Proposed Settlement into effect. Elko County proposed a plan to reestablish the road on August 16, 2002, as called for by the Proposed Settlement. In April 2003, the Forest Service published a draft Environmental Impact Statement (“EIS”), that analyzed the Elko County proposal, and six other management alternatives for the Project. Great Old Broads commented on the draft EIS. In April 2005, the Forest Service issued a draft Record of Decision (“ROD”). The draft ROD did not adopt any of the alternatives analyzed in the draft EIS to form the management alternative selected for the Project (the “Selected Alternative”). Instead, the Selected Alternative was a combination of elements from the following draft EIS alternatives: Alternative 1 (The No-Action Alternative) left the road in its condition as of early 2005, including the primitive restoration work performed by the Shovel Brigade and the routes defined by unauthorized users. Alternative 3 restored the road up to Urdahl but replaced it with a hiking trail from there, providing non-motorized access to Snowslide Gulch. Alternative 3 required the construction of two new bridges and several new road segments. Alternative 4 (The Elko County Proposal) relocated the river and road to their 1995 pre-flood locations, providing passenger-vehicle access to Snowslide Gulch. The Selected Alternative largely followed Alternative 4, restoring the road for the mile from Pine Creek Campground to Urdahl, but it incorporated the hiking trail analyzed in Alternative 3 from Urdahl to Snowslide Gulch. Alternative 3 reclaimed the road above Urdahl, so the Selected Alternative allowed only non-motorized access in the last half-mile to the wilderness area. The Selected Alternative also avoided river and road relocation and bridge construction in Alternatives 3 and 4 by replacing those features with low-water crossings from the user-defined routes in Alternative 1. The Selected Alternative did not recognize Elko County’s claim to title in a right of way through the South Canyon. The Selected Alternative incorporated no part of Great Old Broads’s preferred alternative, Alternative 2, which would have replaced the road with a hiking trail from Pine Creek Campground to Snowslide Gulch, or Alternatives 5 and 6, which would have raised the road above the Jarbidge River floodplain. Alternative 7, like Alternative 1, contemplated no repairs to the road. It differed from Alternative 1 in that it included a Road Management Plan and Water Projects. On April 13, 2005, Great Old Broads submitted a comment letter on the ROD. Great Old Broads wrote that the Selected Alternative represented a “substantial improvement” over Elko County’s proposal, but Great Old Broads continued to object to any decision to reconstruct the South Canyon Road above Pine Creek Campground. Great Old Broads urged that the Forest Service adopt Alternative 2, which the Forest Service found would result in the lowest impacts from erosion and mass wasting events. Great Old Broads also argued that the Selected Alternative, unlike Alternative 2, was legally infirm for three reasons: (1) the Selected Alternative “would not meet the INFISH standards that are incorporated into the [Humboldt Plan]”; (2) by rebuilding the South Canyon Road, the Selected Alternative “contravenes [EO 11988] because it does not avoid the Jarbidge River floodplain”; and (3) the Selected Alternative “represents a significant change that merits further environmental analysis.” The Forest Service issued the final ROD and final EIS at the end of April, adopting the Selected Alternative in a form essentially unchanged from the draft ROD. The final EIS analyzed the same seven alternatives considered in the draft EIS and did not add additional analysis of the Selected Alternative. The final ROD included a more detailed explanation of the Selected Alternative, and the Forest Supervisor explained that he “considered all views that have been expressed” and that “[t]hese comments have helped me make a better informed decision.” Neither the ROD nor the final EIS attached or responded to Great Old Broads’s comments in its April 13 letter. On June 14, 2005, Great Old Broads filed an administrative appeal of the decision to approve the ROD and the final EIS “to protect [its] rights to challenge the decision” if Elko County were to appeal. In its appeal letter, Great Old Broads once again advocated the non-motorized trail considered as Alternative 2. Great Old Broads also contended that the Selected Alternative was arbitrary, capricious, and did not comply with applicable law “[f|or the reasons stated in the attached comment letters.” Of seven attached letters, labeled Exhibits 1-7, the first five related to the draft EIS. Exhibit 6 was the April 13 letter on the draft ROD. Exhibit 7 commented on the draft biological opinion that coincided with the draft ROD. On July 5, Great Old Broads told the Forest Service that it would not withdraw its appeal “[i]n light of the Shovel Brigade’s administrative appeal, and Elko County’s decision to re-commence litigation.” See United States v. Carpenter, 3:99-CV-00547-RLH, 2012 WL 3686872 (D.Nev. Aug. 27, 2012). The July 5 letter set out fuller descriptions of the issues on which Great Old Broads contested the Selected Alternative and responded to arguments made by Elko County and the Shovel Brigade in their respective appeals. Great Old Broads characterized the decision to leave the road open from Pine Creek Campground to Urdahl as “an effort to compromise with Elko County, and thus resolve this dispute without further litigation.” “In light of the intransigence of Elko County and the Shovel Brigade,” Great Old Broads again urged the Forest Service to adopt a hiking trail as analyzed in Alternative 2. The Forest Service’s Appeal Deciding Officer notified Great Old Broads that the July 5 letter was untimely and would not be considered. See 36 C.F.R. § 215.15 (appeal time periods for National Forest System Projects). On July 21, 2005, the Forest Service denied Great Old Broads’s appeal and affirmed the decision approving the ROD and final EIS. The Appeal Deciding Officer did not consider issues raised in the attachments because Great Old Broads’s appeal letter did not explain how the initial decision had failed to consider substantive comments and did not identify the unconsidered aspects of the attached letters. Based on this limited review, the Appeal Deciding Officer held that the decision was “reasonable, based on documentation in the record and consistent with the [Humboldt] Plan.” Great Old Broads timely filed an action in the U.S. District Court for the District of Nevada seeking review of the Forest Service’s actions. The district court granted the Forest Service’s motion for summary judgment, holding that Great Old Broads did not exhaust its administrative remedies on any claim and that, in the alternative, Great Old Broads’s claims failed on the merits. This appeal followed. II. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1220 (9th Cir.2011). Section 706 of the APA governs judicial review of agency decisions under the NFMA, NEPA, and EO 11988. 5 U.S.C. § 706; see Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.2002) (applying arbitrary and capricious standard to NEPA and NFMA claims); City of Carmel-By-TheSea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir.1997) (applying arbitrary and capricious standard to EO 11988 claims). We will not overturn agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency 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.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir.2004) (citations omitted). A reviewing court “generally must be ‘at its most deferential’ when reviewing scientific judgments and technical analyses within the agency’s expertise.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir.2011) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). III. DISCUSSION A. Exhaustion of Administrative Remedies The Forest Service contends, and the district court held, that Great Old Broads failed to exhaust its challenge to the ROD. We disagree. The exhaustion doctrine serves “to permit administrative agencies to utilize their expertise, correct any mistakes, and avoid unnecessary judicial intervention in the process.” Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.2010) (en banc) (citing Buckingham v. U.S. Dep’t of Agric., 603 F.3d 1073, 1080 (9th Cir.2010)). The APA requires that plaintiffs exhaust available administrative remedies before bringing grievances to federal court, 5 U.S.C. § 704, including the specific appeal procedures established by the Secretary before bringing an action in court against the Secretary of Agriculture. 7 U.S.C. § 6912(e); 36 C.F.R. § 215. Plaintiffs need not frame issues in “precise legal formulations,” so long as “the appeal, taken as a whole, provide[s] sufficient notice to the Forest Service to afford it the opportunity to rectify the violations that the plaintiffs alleged.” Native Ecosystems Council, 304 F.3d at 899-900. When appellants object to a Forest Service decision, “claims raised at the administrative appeal and in the federal complaint must be so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims now raised in federal court.” Id. (quotation removed). The Forest Service and the district court, when reviewing Great Old Broads’s claims, considered only the appeal letter itself and not the attachments. The Appeal Deciding Officer did not consider the attached comment letters because the appeal letter did not explain which parts of which comments in the attached letters were relevant to each element of the appeal. But Forest Service regulations provide that attachments are a part of an appeal, see 36 C.F.R. § 215.15(a) (“Written appeals, including any attachments, must be filed”), and we have previously allowed judicial review of claims made in comment letters on a draft EXS when those comment letters were not even attached to formal appeals. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006). The district court mistakenly seems not to have recognized that Great Old Broads commented on the ROD at all. In ruling that Great Old Broads did not exhaust its administrative remedies, the district court found that “the attached comment letters address the draft EIS rather than the actual 2005 Decision.” Wilderness Soc’y, 2011 WL 1042612, at *4. But one of the attachments, the letter of April 13, 2005, did address the ROD. That letter clearly asserted the three issues that were raised in the appellate briefing: (1) that the selected decision did not meet INFISH standards; (2) that keeping the road open offended Executive Order 11988 because it did not avoid the Jarbidge River floodplain; and (3) that the selected alternative, while an improvement, represented a “significant change that merits further environmental analysis,” and that the decision “did not provide a full analysis of the environmental impacts now being considered over time.” This was not a case where the agency was asked to piece together an appeal from a mountain of undifferentiated comment letters. Great Old Broads attached its comment letters as distinct exhibits. Any careful reviewer should have recognized that one of the seven addressed the ROD and should also have been able to see that the others gave added context for the appeal. In the one letter addressing the ROD, Great Old Broads succinctly stated three legal objections. The appeal, taken as a whole, includes the attached comment letters. The Forest Service argues that even if Great Old Broads’s April 13 letter were properly considered as part of its appeal, the attachment was insufficient to exhaust Great Old Broads’s claims under our recent decision in Native Village of Kivalina IRA Council v. U.S. Environmental Protection Agency, 687 F.3d 1216 (9th Cir.2012), because Great Old Broads did not explain why it believed the ROD did not consider the claims made in its April 13 comment letter. See 36 C.F.R. § 215.14(b)(8). This argument contradicts Great Basin Mine Watch and misreads Kivalina. In Kivalina, the Village of Kivalina petitioned for review of a National Pollutant Discharge Elimination System permit that allowed the discharge of wastewater from a mine into the Wulik River, which enters the Chukchi Sea near Kivalina. Id. at 1218. The Environmental Appeals Board (“EAB”) of the Environmental Protection Agency (“EPA”) declined to review the permit, concluding that Kivalina “had not satisfied the procedural requirements to obtain review under 40 C.F.R. § 124.19(a) because it did not demonstrate why the [EPA’s] responses to comments were clearly erroneous or otherwise warranted review.” Id. In denying Kivalina’s petition, we noted that the EAB has consistently applied § 124.19(a) to deny review “where petitioners merely reiterate or attach comments previously submitted regarding a draft permit and do not engage the EPA’s responses to those comments.” Id. at 1220. This policy is similar to the Forest Service’s appeal requirement that appellants demonstrate “[w]hy the appellant believes the Responsible Official’s decision failed to consider the substantive comments.” 36 C.F.R. § 215.14(b)(8). Because of this similarity, the Forest Service contends that our analysis in Kivalina controls here. We reject the Forest Service’s argument for several reasons. First, despite the facial similarity of the two standards, Kivalina arose in an entirely different legal context. The exhaustion of administrative remedies was not at issue in Kivalina. See 687 F.3d at 1218-22. Thus, Kivalina’s, holding does not apply to the exhaustion issue here, although its reasoning may be considered to the extent persuasive on exhaustion. Instead of addressing an issue of exhaustion of administrative remedies, Kivalina reviewed the EAB’s decision to decline to review the grant of an EPA permit. Id. We have consistently “defined the exhaustion requirement broadly,” Great Basin Mine Watch, 456 F.3d at 965. But by contrast we held in Kivalina that the EAB’s “power of review should be only sparingly exercised.” 687 F.3d at 1219 (quotation removed). Unlike judicial review of agency actions under the APA, EAB review is only available to petitioners who have: (1) demonstrated that the challenged permit decision was clearly erroneous or (2) convinced the EAB to exercise its discretion to review the permit. Id. (quoting 40 C.F.R. § 124.19(a)). These different standards of review do not aid the Forest Service’s argument seeking to avoid review on the merits. Because Kivalina addressed a more restrictive threshold for review than that faced by Great Old Broads, Kivalina does not control the outcome here. Second, although the two situations have some similarity, and Kivalina’s reasoning is instructive, this reasoning tends to support Great Old Broads’s position on exhaustion, not that of the government. In Kivalina, the EAB refused to consider Kivalina’s challenge because Kivalina did not “engage the EPA’s responses to public comments.” Id. at 1221. In its decision to issue the permit, the EPA reproduced and addressed several public comments, including comments by Kivalina, on the monitoring provisions at issue. Id. at 1220-22. Rather than engaging with the EPA’s responses to comments and explaining why those responses did not answer Kivalina’s expressed concerns or justify the permitting decision, Kivalina raised entirely new issues. See, e.g., id. at 1221. Here, by contrast, the Forest Service did not acknowledge or respond to Great Old Broads’s April 13 letter in the final EIS or the final ROD. The final EIS answered Great Old Broads’s comments on the draft EIS, and the Appeal Deciding Officer cited those responses when denying Great Old Broads’s administrative appeal. But the only indication that the Forest Service had considered the April 13 letter at all was the Forest Supervisor’s conclusory statement that he had “considered all views that have been expressed.” Where, as in Kivalina, an agency reproduces and responds to comments, parties seeking review have a chance to bring their own expertise to bear and explain why the agency’s responses to comments do not dispose of their complaints. Even in the sparingly-exercised EAB review, petitioners are only required to “engage the EPA’s responses to [their] comments.” Kivalina, 687 F.3d at 1220 (emphasis added). But here the Forest Service did not clearly respond to Great Old Broads’s comments in its April 13 letter, so the Forest Service cannot reasonably require Great Old Broads to explain why the “decision failed to consider th[ose] substantive comments.” See 36 C.F.R. § 215.14(b)(8). Stated another way, when an agency clearly responds to comments, it creates a rebuttable presumption that it has considered and answered the commenter’s concerns. To overcome that presumption, the commenting party must engage with those responses and at least say why they are thought to be inadequate. If an agency does not respond, however, appellants have nothing with which to engage. To be presented on appeal, each of Great Old Broads’s three claims must have been exhausted before the Forest Service. We first address Great Old Broads’s contention that the ROD violates the NFMA because it did not comply with INFISH standard FW-2, which governs “fish and wildlife interpretive and other user-enhancement facilities.” In its April 13 letter, Great Old Broads argued that the Selected Alternative did “not meet the IN-FISH standards that are incorporated into the [Humboldt Plan].” Great Old Broads cited pages in the draft EIS that described FW-2 as “one INFISH standard and guideline ... that pertains to fish and wildlife for the Jarbidge Canyon EIS.” FW-2 is the first standard listed under the first heading in the cited pages, and its prominence put the Forest Service on notice that Great Old Broads took issue with the ROD’s compliance with FW-2. Second, Great Old Broads contends that the ROD violates EO 11988, which limits agency actions in floodplains. In the same April 13 letter, Great Old Broads argued that the decision “contravenes Executive Order 11988, because it does not avoid the Jarbidge River floodplain.” EO 11988 is focused exclusively on preventing unnecessary development in floodplains .and limiting the harmful effects of actions that must be sited in floodplains. By citing EO 11988, Great Old Broads exhausted this claim. Great Old Broads also exhausted its third claim, that the Forest Service violated NEPA by not preparing a supplemental EIS (“SEIS”) for the Selected Alternative. In its April 13 letter, Great Old Broads explained that the Selected Alternative, “while a major improvement over [draft EIS] Alternative 4, represented] a significant change that merits further environmental analysis.” On this issue as with the preceding two, Great Old Broads’s April 13 letter “allow[ed] the agency to give the issue meaningful consideration.” Great Basin Mine Watch, 456 F.3d at 971 (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)). We hold that the three claims presented on this appeal each were adequately exhausted by Great Old Broads’s submissions to the Forest Service, and we reach the merits of Great Old Broads’s appeal. B. Consideration of Claims on the Merits Great Old Broads suggests three theories why the ROD was an arbitrary and capricious action by the Forest Service: (1) that the ROD violated the NFMA; (2) that the ROD violated EO 11988; and (3) that the ROD violated NEPA. The district court in its alternative holding granted summary judgment in favor of the Forest Service on all three theories, and we discuss each in turn. 1. The National Forest Management Act The NFMA directs the Forest Service to develop a comprehensive land and resource management plan (“Forest Plan”) for each unit in the national forest system. 16 U.S.C. § 1604(a). Forest Plans aim to balance environmental and economic concerns, while furthering the NFMA’s purpose to “provide for diversity of plant and animal communities” in national forests. Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir.2012) (quoting 16 U.S.C. § 1604(g)(3)(B)). After a Forest Plan has been developed and implemented, the NFMA prohibits site-specific activities that are inconsistent with the governing Forest Plan. Lands Council v. Powell, 395 F.3d 1019, 1033 (9th Cir.2005). The Forest Service’s “interpretation and implementation of its own forest plan is entitled to substantial deference.” Native Ecosystems Council, 697 F.3d at 1056; see also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (An agency’s interpretation of its own regulations is controlling unless “plainly erroneous or inconsistent with the regulation.”). Great Old Broads contends that the ROD does not comply with the Humboldt Plan because it violates FW-2, one of INFISH’s fish and wildlife restoration standards. The Humboldt Plan governs the Forest Service’s site-specific decisions in the Jarbidge Canyon. The Humboldt Plan was amended in 1995 by INFISH to give more protections for habitat and populations of resident native fish, including the bull trout. See Inland Native Fish Strategy: Decision Notice and Finding of No Significant Impact (1995) (INFISH 95); see also Inland Native Fish Strategy, 60 Fed. Reg. 39927, August 4, 1995. For watersheds occupied by inland native fish, INFISH supplies Riparian Management Objectives (“RMOs”) that set goals for pool frequency, density of large woody debris, bank stability, width-to-depth ratio, and water temperature. These categories identify characteristics of healthy fish habitat. IN-FISH does not require RMOs to be achieved as soon as they are announced; instead, they serve as benchmarks against which progress can be measured and degradation prevented. For individual rivers, the Forest Service designates buffer zones around Riparian Habitat Conservation Areas (“RHCAs”). Parts of the South Canyon Road are in the Jarbidge River RHCA. To promote attainment of RMOs, INFISH sets standards and guidelines for activities inside these buffer zones, including road-building, mining, logging, and restoring fisheries and wildlife habitat. INFISH 95 A-6 to A-13. One standard, FW-2, requires the Forest Service to: Design, construct, and operate fish and wildlife interpretive and other user-enhancement facilities in a manner that does not retard or prevent attainment of the Riparian Management Objectives or adversely affect inland native fish. For existing fish and wildlife interpretive and other user-enhancement facilities inside Riparian Habitat Conservation Areas, assure that Riparian Management Objectives are met and adverse effects on inland native fish are avoided. Where Riparian Management Objectives cannot be met or adverse effects on inland native fish avoided, relocate or close such facilities. INFISH 95 A-13. Great Old Broads contends that several findings in the final EIS show that the ROD violates Fisheries and Wildlife Restoration standard FW-2, and therefore the Humboldt Plan and the NFMA. In the final EIS, the Forest Service identified FW-2 as “one INFISH standard ... that pertains to fish and wildlife for the Jarbidge Canyon EIS.” When analyzing each alternative in the final EIS, the Forest Service assessed whether it would or would not comply with FW-2 and described the effect each alternative would have on the RMOs. The alternatives that were combined to form the Selected Alternative all had negative effects on RMOs. Great Old Broads contends that these references to FW-2 in the final EIS show (1) that the standard applies to the road reconstruction and (2) that the ROD violates the standard, so the road must be “relocated or closed.” We disagree. The final EIS does indicate that FW-2 applies in the Project. But even if FW-2 does apply to “fish and wildlife in the Jarbidge Canyon EIS,” it requires action only for “fish and wildlife interpretive and other user-enhancement facilities.” The term “user enhancement facilities” does not appear to apply to roads but instead, as the Forest Service suggests, to trailhead facilities such as parking areas and toilets. By contrast, INFISH “Roads Management” standards explicitly apply to the Jarbidge Canyon Road. INFISH 95 A-7 to A-8. The final EIS described these as the “standards and guidelines for road management that pertain to the Jarbidge Canyon project,” and the ROD explained that the Selected Alternative complied with INFISH by reference to Roads Management standards RF-2 to RF-4. Like FW-2, the Roads Management standards are concerned with attainment of RMOs. They promote attainment of RMOs by requiring various design modifications and mitigation strategies, many of which were included in the ROD. Unlike FW-2, the Roads Management standards do not require that roads be relocated or closed unless the roads are obsolete. The text of related INFISH standards also guides against reading “user-enhancement facilities” to include roads. The introduction to the collected standards and the Minerals Management standard MM-2 include both “roads” and “facilities” on lists, showing that INFISH considered “facilities” and “roads” to be distinct categories. INFISH 95 A-6, A-10. There is no evidence in the final EIS that FW-2 applies beyond what its plain language indicates. We will defer to the Forest Service’s interpretation of FW-2 unless it is plainly erroneous or inconsistent with the standard. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 557 (9th Cir.2009). It is neither. We hold that the Forest Service’s interpretation of FW-2 is reasonable and that the ROD does not violate the NFMA. 2. Executive Order 11988: Floodplain Management EO 11988 calls on “federal agencies taking action ‘in or affecting a floodplain’ to think twice.” Carmel-By-The-Sea, 123 F.3d at 1166. This executive order discourages unnecessary development in floodplains. Agencies must avoid siting actions in floodplains unless the head of the agency finds there is no practicable alternative. 42 Fed. Reg. 26951 § 2(a)(2) (1977). If there is no practicable alternative, the agency must “(i) design or modify its action in order to minimize potential harm to or within the flood plain,” and “(ii) prepare and circulate a notice containing an explanation of why the action is proposed to be located in the flood plain.” Id. We will set aside agency findings under EO 11988 only if they are arbitrary, capricious, or an abuse of discretion. Camielr-By-The-Sea, 123 F.3d at 1166. Great Old Broads contends that the Forest Service did not comply with any of EO 11988’s three requirements, beginning with the fact that it made no formal finding that there was no practicable alternative to siting the road in the Jarbidge Canyon floodplain. But the South Canyon Road had been sited in the floodplain for years before the area was added to the national forest system&emdash;long before EO 11988 was contemplated. Great Old Broads claims that this appeal to the status quo is a prohibited post-hoc argument. But the final EIS explained that the proposed action was “to authorize the reestablishment of the South Canyon Road,” and the Forest Service characterized the preexisting road, situated in the floodplain, as the no-action alternative in the final EIS and the ROD. Great Old Broads has not challenged those characterizations and provides no authority showing that EO 11988 requires the relocation of existing roads that require restoration or improvement. Longstanding custom and usage of a community is not irrelevant to a sensible application of environmental law. In considering options for the South Canyon Road, the Forest Service was not siting a new project but was crafting the next “phase in an essentially continuous activity.” See Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir.1981) (quoting City & County of San Francisco v. United States, 615 F.2d 498, 501 (9th Cir.1980)). The Forest Service was entitled to rely on the established location of the South Canyon Road to comply with this first element of EO 11988. EO 11988 separately requires that agencies “prepare and circulate a notice containing an explanation of why the action is proposed to be located in the floodplain.” 42 Fed. Reg. 26951 § 2(a)(2). This notice should be included in the agency’s NEPA statement. Id. § 2(a)(1). As Great Old Broads admits, this notice requirement is “closely related” to the requirement that the agency make a finding of no practicable alternative. Where the latter has been fulfilled, courts have not found the former to be insufficient. See e.g., Carmel-by-the-Sea, 123 F.3d at 1166; Hassell, 636 F.2d at 1100. In addition to the indicators discussed above that show the Forest Service complied with the requirement that it make a finding of impracticability, the Forest Service advised readers in the final EIS that it was considering the commands of EO 11988, and the final EIS explicitly analyzed two out-of-floodplain alternatives. This was sufficient notice. Finally, EO 11988 requires an agency taking action in a floodplain to “design or modify its action in order to minimize potential harm to or within the floodplain.” 42 Fed. Reg. 26951 § 2(a)(2). In forming the Selected Alternative, the Forest Service took elements from Alternatives 1, 3, and 4 and modified the combination to minimize the road’s impact on the floodplain. These modifications included: (1) Replacing the upper part of the road with a hiking trail to ameliorate mass wasting, which provided for “road reclamation in the most unstable portion of the canyon bottom.” (2) Choosing not to widen or realign the road, which “decrease[d] the amount of sediment entering the river over time” and avoided the “increased erosion noted for other road alternatives.” (3) Replacing proposed structures in Alternatives 3 and 4 with low-water crossings. The proposed structures would have “impede[d] flow during high-water events” and prevented the “pass-through of debris from large flows.” Great Old Broads contends these modifications were not enough because EO 11988 requires an agency to “modify its action in order to minimize potential harm to or within the floodplain.” Id. § 2(a)(2). Great Old Broads argues that “minimize” means the Forest Service must reduce potential harm to “the smallest quantity, number, or degree possible or permissible.” Webster’s New Twentieth Century Dictionary 1145 (2d ed.). But when we have considered the word “minimize” in similar contexts, we have held any mitigation only needs to be reasonable. The Department of Transportation Act of 1970 mandates that all measures “technically possible ... be implemented” to “minimize harm” to public parks. 49 U.S.C. § 1653(f)(2). We held that “implied within the statement ‘all measures,’ is the condition that such efforts to minimize harm be feasible and prudent, or reasonable.” Adler v. Lewis, 675 F.2d 1085, 1094 (9th Cir.1982). This understanding of “minimize” parallels the definition of “practicable” that we have used when reviewing actions under EO 11988. In CarmeL-by-the-Sea, we understood “practicable” to mean: “capable of being done within reasonable natural, social, or economic constraints.” 123 F.3d at 1166 n. 20 (quoting 23 C.F.R. § 650.105(k)). In applying EO 11988, the D.C. Circuit held that the National Park Service fulfilled its obligation to minimize impacts when it “affirmatively required design changes to ameliorate adverse effects on the floodplain.” Daingerfield Island Protective Soc. v. Babbitt, 40 F.3d 442, 447 (D.C.Cir.1994). The D.C. Circuit did not analyze the degree to which those modifications would ameliorate any adverse affects. Id. The changes the Forest Service made in finalizing the Selected Alternative possibly do not limit the floodplain impacts of the ROD to the smallest degree possible, but they were reasonable, affirmatively-required design changes that the Forest Service determined would ameliorate adverse effects on the floodplain. We will not second-guess that determination. The Forest Service’s actions were not arbitrary or capricious under EO 11988. 3. National Environmental Policy Act Great Old Broads contends that “combining Alternatives 1, 3, and 4 dramatically changed their environmental impacts, [so] the Forest Service violated NEPA by failing to prepare a supplemental EIS (SEIS).” We review the Forest Service’s decision not to prepare an SEIS under the arbitrary or capricious standard. Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1044 (9th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 2439, 182 L.Ed.2d 1063 (2012). We review de novo the district court’s grant of summary judgment that no SEIS was required. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 (9th Cir.2000). We affirm. Under NEPA, an agency must 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 consider “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). The range of relevant effects is broad, and the EIS must “[r]ig-orously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). By requiring this evaluation before a project is finalized, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). An agency “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). But if after this process, an “agency makes substantial changes in the proposed action that are relevant to environmental concerns,” the agency must prepare an SEIS. 40 C.F.R. § 1502.9(c). In considering the terms “substantial changes” and “environmental concerns,” we have adopted the Council for Environmental Quality’s (“CEQ”) guidance 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].’ ” Russell Country Sportsmen, 668 F.3d at 1045 (emphasis added in Russell Country Sportsmen) (quoting Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18,-026, 18, 035 (Mar. 23,1981)). Great Old Broads points to no specific changes that it deems not adequately analyzed in the final EIS. Instead, Great Old Broads relies on the First Circuit’s decision in Dubois v. U.S. Department of Agriculture to argue that an SEIS is required whenever a proposed project constitutes “a different configuration” of previously analyzed elements. 102 F.3d 1273, 1291-93 (1st Cir.1996). In Dubois, the Forest Service published an EIS analyzing the effects of a proposed ski resort. Id. at 1278. The preferred alternative adapted an analyzed alternative to a smaller parcel of land, eliminating woodland buffer zones between ski trails and proposing an unanalyzed “28,500-square-foot base lodge facility within the existing permit area.” Id. at 1292. The First Circuit held that these were “substantial changes from the previously-discussed alternatives, not mere modifications ‘within the spectrum’ of those prior alternatives.” Id. Here, by contrast, the Selected Alternative is primarily made of elements from Alternatives 1, 3, and 4 that were analyzed — as elements — in the final EIS. From that analysis, the Forest Service and the public could assess the cumulative effect of these elements, and the Forest Service could reasonably determine that the combination was “within the spectrum” of previously analyzed alternatives. In addition to these elements, the Selected Decision incorporated several mitigating modifications. Most, such as (1) minimizing the number of river crossings by heavy equipment during construction, (2) clearly marking low-water crossings and posting them with 5 MPH speed limits, and (3) removing toilets at Snowslide Gulch and Urdahl, were “minor variation[s] of one of the alternatives discussed in the draft EIS.” See Russell Country Sportsmen, 668 F.3d at 1045 (internal quotation omitted). Another modification changed the targeted “design vehicle” from a passenger car to a four-wheel-drive vehicle. The “design vehicle” is the type of vehicle that the road is designed to accommodate, so this change lowered the construction and maintenance costs for the road and limited the amount of traffic the road is likely to bear. Although this change is not identified as an element from one of the analyzed alternatives, only a four-wheel-drive vehicle could use the road as it was at the time of the final EIS, so the reduction in service level brought the Selected Alternative in line with Alternative 1 — the no-action alternative. Great Old Broads alternatively contends that even if the Forest Service correctly decided that an SEIS was not required, it violated NEPA because it did not adequately document that determination in the record. An agency must make a reasoned decision whether an SEIS is required, see Friends of the Clearwater, 222 F.3d at 557, and the Forest Service often presents this threshold determination in a supplemental information report (“SIR”). See Forest Service Handbook 1909.15, ch. 10 §§ 18.1-18.2. Here the Forest Service did not prepare a separate SIR, but it did make a reasoned decision, documented in the record, that an SEIS was not warranted. An agency must document its decision that no SEIS is required to ensure that it remains “alert to new information that may alter the results of its original environmental analysis, and continue^] to take a ‘hard look at the environmental effects of [its] planned action, even after a proposal has received initial approval.’” Friends of the Clearwater, 222 F.3d at 557 (quoting Marsh, 490 U.S. at 374, 109 S.Ct. 1851). In Friends of the Clearwater, appellants challenged a timber sale in the Nez Perce National Forest for which they claimed the environmental analysis was inadequate. Id. at 554. The Forest Service completed a programmatic EIS for the entire National Forest in 1987 and a site-specific EIS for several timber sales in 1989. Id. at 554-55. In 1996, the last two of those sales were awarded. Id. at 555. When challenging those sales, appellants explained that the project’s EIS did not consider the designation of sensitive tree species in the ten years since the Forest Service completed the site-specific EIS. Id. Those designations, appellants contended, “constituted significant new information that should be considered in an SEIS.” Id. at 555-56. We faulted the Forest Service because there was “no evidence in the record that ... the Forest Service ever considered whether the seven new sensitive [tree] species designations ... were sufficiently significant to require preparation of an SEIS.” Id. at 558. By contrast, Great Old Broads points to no new information that was not considered in the final EIS, and the Forest Supervisor explained in the ROD that he “determined that the Selected Alternative was fully analyzed in Chapter 3 of the [final EIS].” This was adequate documentation of the Forest Service’s reasoned decision that no SEIS was required. IV. CONCLUSION We hold that Great Old Broads exhausted its claims before the Forest Service but that the ROD conforms to the NFMA, EO 11988, and NEPA. We reverse the district court on its analysis of exhaustion, but we affirm the district court on its alternate decision on the merits as to each of the claims presented. The parties shall bear their own costs. REVERSED ON EXHAUSTION and AFFIRMED ON THE MERITS. . RS 2477 formerly provided that "the right of way for the construction of highways over public lands, not reserved for public uses, is . hereby granted." 43 U.S.C. § 932 (1970), repealed by Federal Land Policy Management Act ("FLPMA"), Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (1976). The FLPMA preserved rights-of-way that existed before 1976. 43 U.S.C. § 1769(a). Parties claiming RS 2477 easements must show the road on which their claim is based was built before the land it crosses lost its public character. Humboldt County v. United States, 684 F.2d 1276, 1281 (9th Cir.1982). . Because we hold that FW-2 does not apply to road reconstruction, we do not reach Great Old Broads’s second contention. We note, however, that the ROD finds that the combined alternatives and the mitigation strategies in the Selected Alternative would not retard attainment of the RMOs under IN-FISH. This finding, which is due substantial deference as the product of the Forest Service’s technical expertise, see Native Ecosystems Council, 697 F.3d at 1056, could possibly prevent FW-2 from mandating the closure of the road even if it did apply to the road. . The Selected Alternative removed 3 toilets at Urdahl and Snowslide Gulch, as FW-2 would require.

Snoqualmie Valley Preservation Alliance v. United States Army Corps of Engineers

OPINION PER CURIAM: Puget Sound Energy (“PSE”) maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the state of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding. In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission (“FERC”). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act (“CWA”) without a permit, PSE sought verification from the U.S. Army Corps of Engineers (“Corps”) that it could proceed under a series of general nationwide permits (“NWPs”) authorizing certain discharges, rather than applying to the Corps for an individual permit. The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance (“Alliance”) to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps. For the reasons explained below, we affirm. I In 1898, a hydroelectric power plant was first constructed at the falls. PSE proposed an upgrade to the plant in 1991, which FERC approved in a 2004 license after a lengthy study published in a 1996 Environmental Impact Statement (“EIS”). Both upstream and downstream flooding effects were evaluated in the EIS. On judicial review, we upheld FERC’s decision. Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207 (9th Cir.2008). Meanwhile, in 2004 the Corps completed a section 205 flood control project and published a 1999 Environmental Assessment (“EA”) which evaluated the upstream and downstream flooding effects of the project. Because the project implemented slightly different changes related to the falls than those initially planned under the FERC license, PSE applied for an amendment to the license. Under the proposed changes to the project, the existing dam would be lowered by 2 feet and lengthened by 37 feet to match the newly excavated river bank. FERC prepared an EA concluding that the proposed changes would have little effect on flood elevations, and granted the amendment in 2009. Puget Sound Energy, Inc., 127 FERC ¶ 62,174, ¶ 64,482, 2009 WL 1549353, at *10 (2009). Because completion of the project would involve both temporary and permanent excavation and fill of wetlands, PSE needed a permit under section 404 of the CWA, 33 U.S.C. § 1344. There are two types of section 404 permits: individual permits that authorize specific activities on a case-by-case basis, id. § 1344(a), and general permits that provide standing authorization for all activities that fit the description in the permit, id. § 1344(e). Individual permits are subject to the requirements of the National Environmental Policy Act (“NEPA”). 33 C.F.R. § 325.2(a)(4). A general nationwide permit, on the other hand, must undergo that extensive process at the time the permit is promulgated, rather than at the time an applicant seeks to discharge fill material under such a permit. Id. § 330.5(b)(3). Project proponents may usually “proceed with activities authorized by NWPs without notifying the [Corps].” Id. § 330.1(e)(1). The Corps does, however, allow permittees to request verification from the Corps that an activity complies with the terms and conditions of a nationwide permit, and in some cases permittees are required do so prior to beginning work under the permit. Id. § 330.6(a)(1). PSE submitted pre-construction notification of its plans to the Corps and sought verification that its activities would be covered under NWPs 33 and 39. In a Verification Letter and accompanying Decision Document, both issued on May 19, 2009, the Corps determined that PSE’s activities fell within the scope of three different nationwide permits. First, the removal of the old dam and the construction of the new dam were determined to fall within the scope of NWP 3(a), which authorizes discharges for the replacement of a current structure, including minor deviations. See Reissuance of Nationwide Permits, 72 Fed.Reg. 11,092, 11,181 (Army Corps of Eng’rs Mar. 12, 2007). Second, the temporary river diversion for purposes of preparing the work areas was determined to fall within the scope of NWP 33, which authorizes temporary discharges for “necessary ... construction activities.” See id. at 11,187. Third, the modifications to the power plant intakes and powerhouse structures were determined to fall within the scope of NWP 39, which authorizes discharges for the “expansion of ... attendant features that are necessary for the use” of “commercial” and “institutional” buildings. See id. at 11,188. The Corps concluded that the project would have minimal individual and cumulative impacts and that it complied with all terms and conditions of NWPs 3, 33, and 39, and imposed a series of special conditions. The Alliance filed this lawsuit challenging the Verification Letter. The complaint asserts three causes of action: first, the Corps violated the CWA by authorizing discharges under the nationwide permits rather than requiring an individual permit; second, the Corps violated NEPA by failing to prepare the EA or an EIS required for individual permits; and third, the Corps violated the Administrative Procedure Act (“APA”) because its authorization of the discharges was arbitrary and capricious or otherwise not in accordance with the law. PSE intervened in the proceedings as a defendant. On cross-motions for summary judgment, the district court granted summary judgment in favor of the Corps and PSE. This appeal followed. II The district court’s grant of summary judgment is reviewed de novo. Alaska Ctr. for the Env’t v. West, 157 F.3d 680, 682 (9th Cir.1998). Section 706 of the APA grants jurisdiction to a reviewing court 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.” 5 U.S.C. § 706(2)(A). Thus, a court may set aside an agency decision that has “entirely failed to consider an important aspect of the problem,” Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir.2010) (internal quotation marks omitted), or failed to articulate a “rational connection between the facts found and the conclusions made,” Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004) (internal quotation marks omitted). However, “[t]he 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.” 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 PSE raises an initial jurisdictional argument which the Corps does not: whether this suit is an improper collateral attack against the FERC license and amendment. First, PSE argues that the claims made here could, and therefore should, have been raised during judicial review of the FERC license, presumably Snoqualmie Indian Tribe, 545 F.3d 1207. Second, citing California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911-12 (9th Cir.1989), PSE argues that the “practical effect” of a judgment against the Corps in this case would be to “restrain the licensing procedures authorized by FERC.” With regard to the first argument, we note that the instant claims against the Corps could not have been raised in the challenge to the FERC license amendment because the Corps had not yet verified that PSE could proceed via general nationwide permits rather than applying for an individual permit. PSE does not contend that the Corps had no role to play in this project, or that obtaining a section 404 permit was an unnecessary step. The Alliance could therefore not have brought any of their present claims in the earlier lawsuit. In support of its second argument, PSE points to the remedies requested by the Alliance, which include requiring the Corps to impose mitigation measures, such as rebuilding the dam to its original height and canceling the plans to widen the riverbank. PSE notes that such remedies would interfere with activities specifically authorized by the FERC license. While this is true, it does not follow that this action is an improper collateral attack on the FERC license. If the Alliance were to prevail, the remedy would be an injunction against the Corps to instruct PSE to apply for an individual permit and to perform a full NEPA analysis of the proposed action. The resulting EIS or EA would have no effect on the validity of FERC’s license. The sufficiency of the hypothetical EIS or EA and any additional mitigation measures suggested by the Corps is not before us, nor was it before the district court. B The Alliance’s primary argument on appeal is that hydropower projects may only be authorized if they fall under NWP 17, the only nationwide permit which specifically references hydropower projects. The text of that permit is as follows: 17. Hydropower Projects. Discharges of dredged or fill material associated with hydropower projects having: (a) Less than 5000 kW of total generating capacity at existing reservoirs, where the project, including the fill, is licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; or (b) a licensing exemption granted by the FERC pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section 30 of the Federal Power Act, as amended. 72 Fed.Reg. at 11,184. The Alliance’s argument that hydropower projects can only be authorized under this NWP, or otherwise must undergo the individual permitting process, is not supported by the regulation. NWP 17 affirmatively licenses hydropower projects of less than 5000 kW of generating capacity. It is silent concerning hydropower projects of more than 5000 kW of generating capacity-. As the district court found, “[a]l-though NWP 17 is the only general permit specifically referencing hydropower projects, no language contained therein prevents the Corps from applying other permits to hydropower projects that meet those other permits’ standards.” Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, No. C10-1108, 2011 WL 1215605, at *3 (W.D.Wash. Mar. 30, 2011). The Alliance argues that when the Corps rejected a 1991 proposal to expand NWP 17 to all hydropower plants, it implicitly determined that all hydropower plants above 5000 kW of generating capacity will necessarily have more than “minimal impacts” on the environment and thus must undergo individual review. But this argument ignores the structure and purpose of the nationwide permit system. Each nationwide permit has to undergo the NEPA process when it is promulgated. This process ensures that any activity authorized under that nationwide permit will have “minimal adverse environmental effects.” 33 U.S.C. § 1344(e)(1). In 1991, the Corps determined that hydropower plants above 5000 kW of generating capacity should not automatically be determined to have “minimal adverse environmental effects” by virtue of being a hydropower plant above 5000 kW of generating capacity. See Final Rule for Nationwide Permit Program Regulations and Issue, Reissue, and Modify Nationwide Permits, 56 Fed.Reg. 59,110, 59,123 (Army Corps of Eng’rs Nov. 22, 1991). This is not a determination that all hydropower plants above 5000 kW of generating eapacity must go through the individual permit review process. It simply means that these plants, if they are to qualify at all, must qualify under one of the other nationwide permits. If other nationwide permits apply to the proposed activity, then the Corps has studied the activities falling under that proposed nationwide permit and concluded that they will have “minimal adverse environmental effects.” It is not the case, as the Alliance implies, that the Corps is using a shortcut to authorize a large hydropower project that will involve large amounts of discharge into wetlands or rivers. All nationwide permits must comply with general terms and conditions, and many nationwide permits have their own limiting principles. As relevant here, NWP 39 specifies that authorized activities “must not cause the loss of greater than Jé-acre of non-tidal waters of the United States.” 72 Fed.Reg. at 11,189. If a hydropower project meets these other limiting conditions, the Corps need not require an individual permit simply because the project’s generating capacity is over 5000 kW. Importantly, this interpretation is consistent with “[t]he agency’s longstanding practice.” See Frankl v. HTH Corp., 650 F.3d 1334, 1353 (9th Cir.2011). The Corps articulated this very position in a guidance document in 1992: 12.Q. Can an applicant perform an activity under any applicable NWP, even though one may appear to be specific to his proposed activity ... ? 12.A. Although several NWPs may be applicable, an applicant can, at his choice, use any NWP for any activity that meets the terms and conditions of that NWP. Army Corps of Eng’rs, Qs & As on Nationwide Permits 5-6 (1992), available at http://www.usace.army.mi1/Portals/2/docs/ civilworks/nwp/1992qanda.pdf. Thus, not only is the action taken in this case consistent with the regulation, but it is also in line with agency practice over time. The Alliance’s challenge fails. C The Alliance next argues that even if NWP 17 is not exclusively applicable to hydropower projects, the Corps erred in verifying that NWPs 3 and 39 authorize the project. The verification decision at issue here involves a determination that the proposed activity falls within the parameters of the Corps’ regulations enacting the nationwide permits. We “must give an agency’s interpretation of its own regulations controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir.2008) (internal quotation marks omitted). The Corps’ interpretation in this case is neither. 1 NWP 3(a) authorizes discharges from [t]he repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure, or fill, or of any currently serviceable structure or fill authorized by 33 CFR 330.3, provided that the structure or fill is not to be put to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification. Minor deviations in the structure’s configuration or filled area, including those due to changes in materials, construction techniques, or current construction codes or safety standards that are necessary to make the repair, rehabilitation, or replacement are authorized. 72 Fed.Reg. at 11,181. The Corps found that NWP 3 authorized the removal of the old dam and the construction of the new dam at a lower height. This is consistent with the regulation. The old dam is to be “replace[d]” by a new one, and the new structure “is not to be put to uses differing from those uses specified or contemplated for it” originally. That is, the new dam will serve the same purpose as the old dam in the hydropower project; the modifications are meant to ensure better flood control above Snoqualmie Falls. The “[m]inor deviations in the structure’s configuration” involve lowering the dam by approximately 11% and lengthening it by approximately 17%. Although the deviations are not precisely meant to bring the project up to date with “current construction codes or safety standards,” language in the regulatory history suggests that a general “public safety” rationale suffices to bring a replacement project with minor deviations under this nationwide permit. See 56 Fed.Reg. at 59,120 (“[I]t is important to note that ... concerns for public safety warrant minor deviations for repair and replacement activities.”). Protecting the upper valley from excessive flooding rationally qualifies as a “public safety” concern. 2 Similarly, both the record and the text of the regulation support the Corps’ conclusion that the modifications to the power plant intakes and powerhouse structures fall within the scope of NWP 39. That permit authorizes [discharges of dredged or fill material into non-tidal waters of the United States for the construction or expansion of commercial and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, storm water management facilities, and recreation facilities such as playgrounds and playing fields. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The construction of new golf courses, new ski areas, or oil and gas wells is not authorized by this NWP. 72 Fed.Reg. at 11,188-89. The project here involves the construction of “attendant features that are necessary for the use and maintenance” of the plant. The attendant features are power plant intakes, tailraces, and powerhouses. As described by PSE, this construction is necessary for the improved operation of the hydropower plant. The Alliance objects that “commercial and institutional” structures are limited by the regulation to “stores and buildings,” not hydropower projects. This argument fails because the regulation specifically lists “industrial facilities” as an example of “commercial developments.” A hydropower plant is plainly an industrial facility. The Alliance’s only argument to the contrary relies on its erroneous interpretation of NWP 17. Deferring as we must to the agency’s interpretation and application of its own regulations, we conclude that the Corps’ decision in this case is consistent ■with its regulation. D The Alliance objects that the Corps’ Verification Letter does not contain a sufficient articulation of the basis for its decision. This objection takes two forms. First, the Alliance contends that the Corps’ analysis of NWPs 8 and 39 was not articulated in the administrative record, and instead is a mere litigation position. Second, the Alliance challenges the Corps’ determination that the project would comply with all applicable general conditions, arguing that the Corps’ conclusory statement that the “[pjrojeet complies with all terms and conditions of the NWP 3, 33, and 39” is insufficient to pass APA review. It is true that “the agency must articulate a rational connection between the facts found and the conclusions made.” Nat’l Wildlife Fed’n, 384 F.3d at 1170 (internal quotation marks omitted). The reviewing court ‘“may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ ” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). However, “a court is not to substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (citation omitted) (internal quotation marks omitted). The Verification Letter at issue here does state reasons for the action taken: the agency verified that PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39. This conclusion is amply supported by facts in the administrative record. To require more would be contrary to the regulatory scheme, which devised the system of general nationwide permits to streamline the process, reduce redundancy, and conserve agency resources. 33 C.F.R. § 330.1(b) (“Nationwide permits ... are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts.”); see also Crutchfield v. Cnty. of Hanover, Va., 325 F.3d 211, 215 (4th Cir.2003) (“NWP verification is much simpler than the individual permit process.”). The purpose of this scheme is to enable the Corps to quickly reach determinations regarding activities that will have minimal environmental impacts, such as those involving the discharge of less than a half an acre of fill. Requiring an elaborate analysis of the applicable regulations and the facts would defeat this purpose. See Orleans Audubon Soc’y v. Lee, 742 F.2d 901, 909-10 (5th Cir.1984). Moreover, a permittee is usually not required to notify the Corps in the first place that it is proceeding under a nationwide permit, except where the applicable nationwide permit specifically so notes. See, e.g., 72 Fed.Reg. at 11,181 (specifically noting that NWP 3(b) requires pre-construction notification, but not requiring notice for activities under the rest of NWP 3, such as 3(a)). And even where pre-construction notification is required, a permittee is not required in most cases to supply the Corps with information about how the project will satisfy each general condition. Where there are exceptions to this practice, they are explicitly noted. Id. at 11,195 (requiring “documentation demonstrating compliance with the Endangered Species Act” and “documentation demonstrating compliance with ... the National Historic Preservation Act”). Here, NWPs 33 and 39 require preconstruction notification. Id. at 11,187-89. PSE accordingly notified the Corps of its project and requested verification. But the general conditions that the Alliance alleges should have been evaluated by the Corps do not place a burden of providing documentation on PSE. Without such documentation, it would be an absurd result to require the Corps to evaluate and explain how PSE will comply with these conditions. Indeed, as part of its decision, the Corps actually reserved its determination of whether the project will comply with all general and special conditions: “In order for this NWP authorization to be valid, you must ensure that the work is performed in accordance with the enclosed Nationwide Permits 3, 33, and 39 Terms and Conditions and the following special conditions.” The nationwide permit system is designed to streamline the permitting process. We decline to impose a new requirement of a full and thorough analysis of each general condition based on documentation the Corps may or may not have. E The Alliance bases its NEPA claim on the argument that the Corps was required by the CWA to inform PSE that it could not proceed under general nationwide permits, but instead must apply for an individual permit. However, because the Corps did not violate the CWA, it also did not violate NEPA. Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification. IV Although the Corps’ analysis in this case is brief, it is sufficient to pass judicial review. The Corps’ interpretation of its own regulations is entitled to deference, and we affirm the district court’s decision. AFFIRMED. . Section 205 of the Flood Control Act of 1948 is codified at 33 U.S.C. § 701s. . The Corps originally published the nationwide permits in the Code of Federal Regulations, but since 1996 it has published them in the Federal Register. . It is undisputed that the plant here has over 5000 kW of generating capacity. . The Project in this case was estimated to impact approximately 0.22 acres. The half-acre-loss limitation also applies to the use of NWP 3 in this case. See 72 Fed.Reg. at 11,102 ("If ... NWP [3] is used with an NWP with a ¡4 acre limit, such as NWP 39, then the ¡4 acre limit would apply to the single and complete project.”). . The Alliance objects that we should not defer to an informal guidance document that has not undergone full APA review. This argument confuses the issue of deference to a final rule (which is not at issue in this case) with the question of whether an agency has consistently interpreted its own regulations. .The Alliance does not challenge the use of NWP 33, which the Corps also found applicable to the project. . The 18.5-foot-high and 220-foot-long dam will be lowered by 2 feet and lengthened by 37 feet.

Friends of Yosemite Valley v. Kempthorne

WARDLAW, Circuit Judge: Twenty years after the Merced River, which lies in the heart of the Yosemite National Park, was designated a Wild and Scenic River, and seventeen years after the National Park Service (“NPS”) was statutorily required to prepare a Comprehensive Management Plan (“CMP”) for the Merced Wild and Scenic River, the question whether NPS has developed a valid CMP is again before us. In 2003, we found certain deficiencies in an earlier CMP — the 2000 CMP — and remanded to the district court. See Friends of Yosemite Valley v. Norton, 348 F.3d 789 (9th Cir.2003) (Yosemite I). We clarified our opinion in Friends of Yosemite Valley v. Norton, 366 F.3d 731 (9th Cir.2004) (Yosemite II). On July 19, 2006, the district court ruled on cross-motions for summary judgment. It concluded that NPS continues to violate certain provisions of the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271-1287, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321-4375, as well as our instructions in Yosemite I and Yosemite II. Friends of Yosemite Valley v. Scarlett, 439 F.Supp.2d 1074 (E.D.Cal.2006). Appellants Dirk Kempthorne, in his official capacity as Secretary of the Interior; the National Park Service; Jonathan Jarvis, in his official capacity as NPS Regional Director of the Pacific West Region; and Michael Tollefson, in his official capacity as Superintendent of Yosemite National Park (collectively, “NPS”) argue that the district court erred in finding that (1) the Merced Wild and Scenic River — Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement (“2005 Revised Plan”) fails sufficiently to “address ... user capacities” as required by § 1274(d) of the WSRA; (2) the 2005 Revised Plan is deficient because it is not a wholly self-contained plan; and (3) the supplemental environmental impact statement (“SEIS”) prepared for the 2005 Revised Plan violates NEPA. We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court. We hold that the 2005 Revised Plan does not describe an actual level of visitor use that will not adversely impact the Merced’s Outstanding Remarkable Values (“ORVs”) as required by Yosemite I and the WSRA, because the Visitor Experience and Resource Protection (“VERP”) framework is reactionary and requires a response only after degradation has already occurred. Moreover, the interim limits are based on current capacity limits and NPS has not shown that such limits protect and enhance the Merced’s ORVs. And, as we made clear in Yosemite II, we again conclude that the WSRA requires that the CMP be in the form of a single, comprehensive document, which addresses all the required elements, including both the “kinds” and “amounts” of use, and thus the 2005 Revised Plan is deficient because it addressed only the two components struck down in Yosemite I and was not a single, self-contained plan. Finally, we conclude that the SEIS violates NEPA because the “no-action” alternative assumed the existence of the very plan being proposed; the three action alternatives — which are each primarily based on the VERP framework — are unreasonably narrow; and for the first five years, the interim limits proposed by the three alternatives are essentially identical. I. A. The Wild and Scenic Rivers Act The Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271-1287, was enacted in 1968 out of concern for the preservation of United States rivers, many of which had been subjected to overdevel-opment and damming. See Kenny Seale, Note, The Effect of the Wild and Scenic Rivers Act on Proposed Bridge Construction, 7 Wis. Envtl. L.J. 225, 227-29 (2000). In its opening section, the WSRA explains that it is intended to codify Congress’s policy determination 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. As originally enacted, the WSRA named specific rivers or segments of rivers for inclusion in the Wild and Scenic River System (‘WSRS”). See id. § 1274(a)(1)-(a)(8). The WSRA also sets forth a procedure for future designations to the WSRS. See id. § 1273(a). WSRS components are administered by the Secretary of the Interior (including any component administered by the Secretary of the Interior through NPS or the Fish and Wildlife Service) or, if the river falls within a national forest, the Secretary of Agriculture. See id. § 1281(c)-(d). The WSRA framework designates rivers based on specific “outstandingly remarkable values” (“ORVs”) which both justify the initial designation of a river as a WSRS component, see id. § 1271, and provide the benchmark for evaluating a proposed project affecting a designated river. While, under the WSRA, protecting and enhancing the designated ORVs is paramount, this goal may be compatible with other uses: [e]ach component of the [WSRS] shall be administered in such manner as to protect and enhance [those ORVs that] caused it to be included in[the WSRS] without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values[, with] primary emphasis ... given to protecting its esthetic, scenic, historic, areheo-logic, and scientific features. Id. § 1281(a). The WSRA further recognizes that “[management plans for any such component may establish varying degrees of intensity for its protection and development, based on the special attributes of the area.” Id. To the extent that the WSRA conflicts with the Wilderness Act, id. § 1131-1136, or statutes administering the national park system and national wildlife system, the WSRA instructs that “the more restrictive provisions shall apply.” Id. § 1281(b)-(c). The WSRA requires the administering agency to “take such action respecting management policies, regulations, contracts, [and] plans ... as may be necessary to protect such rivers in accordance with” the WSRA, and “cooperate with the ... Environmental Protection Agency and with the appropriate State water pollution control agencies for the purpose of eliminating or diminishing the pollution of waters of the river.” Id. § 1283(a), (c). Once a river is designated as part of the WSRS, the following statutory timetable applies: (1) within one year, the administering agency is required to “establish detailed boundaries” for the river and classify it (generally or by its various segments) as “wild,” “scenic,” or “recreational,” see id. §§ 1274(b); 1273(b); and (2) within three full fiscal years, the administering agency must prepare a comprehensive management plan (“CMP”) “to provide for the protection of the river values,” id. § 1274(d)(1). “The[CMP] shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the [WSRA’s] purposes,” id. (emphasis added). B. The Secretaries’ Joint Guidelines Because of inconsistencies caused by the WSRA’s provision for administration by agencies under both the Department of Agriculture and the Department of the Interior, the President asked both Secretaries to jointly issue guidelines interpreting the WSRA. See National Wild and Scenic Rivers System; Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454 (Sept. 7, 1982) (the “Secretarial Guidelines”). The Secretarial Guidelines interpret the management principles of § 1281(a) “as stating a nondegradation and enhancement policy for all designated river areas, regardless of classification.” Id. at 39,458. The Secretarial Guidelines further explain that the WSRA requires the administering agency to manage each component so as to protect and enhance its ORYs, “while providing for public recreation and resource uses which do not adversely impact or degrade those values.” Id. at 39,458-59. The Secretarial Guidelines also envision the use of varying strategies and implementations, depending on the segment’s classification and ownership. Id. at 39,459. Notably, the Secretarial Guidelines discuss “carrying capacity,” a term that does not appear in the WSRA itself and is defined as “[t]he quantity of recreation use which an area can sustain without adverse impact on the [ORVs] and free-flowing character of the river area, the quality of recreation experience, and public health and safety.” Id. at 39,455. The Secretarial Guidelines contemplate that [s]tudies will be made during preparation of the management plan and periodically thereafter to determine the quantity and mixture of recreation and other public use which can be permitted without adverse impact on the resource values of the river area. Management of the river area can then be planned accordingly. Id. at 39,459 (emphasis added). The Secretarial Guidelines also require that a component’s management plan state the kinds and amounts of public use which the river area can sustain without impact to the values for which it was designated!,] and specific management measures which will be used to implement the management objectives for each of the various river segments and protect esthetic, scenic, historic, archeo-logic and scientific features. Id. at 39,458 (emphasis added). C. WSRA Designation of the Merced In 1987, Congress designated segments of the Merced River as WSRS components, including sections flowing through the very popular Yosemite National Park, and its administrative site, El Portal. See Pub.L. No. 100-149, 101 Stat. 879 (Nov. 2, 1987) (codified at 16 U.S.C. § 1274(a)(62)(A)). In designating the Merced as wild and scenic, Congress instructed that the establishment of WSRA boundaries for and classification of those parts of the Merced falling within Yosemite or El Portal would be accomplished through amendment of the 1980 general management plan (“GMP”) for Yosemite National Park, and that such amendment “shall assure that no development or use of park lands shall be undertaken that is inconsistent with the designation of such river segments.” 16 U.S.C. § 1274(a)(62)(A). Despite Congress’s directive, NPS failed to issue the required CMP for the Merced in a timely manner, and was ordered to do so in earlier litigation. See Sierra Club v. Babbitt, 69 F.Supp.2d 1202, 1263 (E.D.Cal.1999) (ordering NPS to “prepare and adopt a valid [CMP] pursuant to 16 U.S.C. § 1274(d) in regard to the Merced River as designated under the [WSRA] no later than twelve months after the entry of this decision”). The twelve-month timetable was based on NPS’s representation that it could complete a CMP in that amount of time. After obtaining a one-month extension, NPS finally issued a CMP in mid-2000 (the “2000 CMP”), well past the statutory deadline. D. Yosemite I and II We have twice previously addressed the issues presented by this action. In 2003, we affirmed in part the Eastern District of California’s findings of specific deficiencies in the 2000 CMP, and remanded for a correction of those deficiencies. Yosemite I, 348 F.3d 789. We clarified our opinion in 2004, and remanded for reconsideration of the motion for injunctive relief filed by Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively, “Friends”) in light of the clarification. Yosemite II, 366 F.3d 731. Looking to the WSRA requirement that the administering agency “prepare a [CMP] .... [that] shall address ... user capacities” within three full fiscal years of a WSRS segment’s designation, 16 U.S.C. § 1274(d)(1), we concluded, in Yosemite I, that NPS’s method of addressing user capacities was problematic. 348 F.3d at 797. The 2000 CMP’s primary method of addressing user capacities was through a framework called Visitor Experience and Resource Protection (“VERP”). Id. at 796. “[T]he VERP framework focuses on the prescription and maintenance of selected ‘desired conditions.’” Id. To maintain these “desired conditions,” the VERP framework provides for “selecting and monitoring indicators and standards that reflect these desired conditions, and taking management action when the desired conditions are not being realized.” Id. (internal citations omitted). Analyzing the plain meaning of the terms within the phrase “address ... user capacities” as well the Secretarial Guidelines, we interpreted the requirement to “address ... user capacities” to mean that the CMP must include “specific measurable limits on use.” Id. at 797 (emphasis added). “[T]he plain meaning of the phrase ‘address ... user capacities,’ is simply that the CMP must deal with or discuss the maximum number of people that can be received at a WSRS.” Id. at 796 (emphasis added). However, the plain meaning does not mandate “one particular approach to visitor capacity.” Id. Furthermore, the Secretarial Guidelines “interpreted] the WSRA to require the preparation of river ‘[m]anagement plans [that] state ... the kinds and amounts of public use which the river area can sustain without impact to the [ORVs],’ and to mandate ongoing studies to ‘determine the quantity and mixture of recreation and other public use which can be permitted without adverse impact on the resource values of the river area.’ ” Id. at 797 (quoting 47 Fed.Reg. 39,454, 39,458-59). The Secretarial Guidelines, however, do not require one particular method of limiting user capacity. Id. They do not mandate, for example, a numerical cap on visitors. Id. (“[T]he Secretarial Guidelines do not specify that this obligation can be satisfied only by capping the number of visitors”). We concluded that the VERP framework, as set out in the 2000 CMP, failed sufficiently to address user capacities because it did not adopt “quantitative measures sufficient to ensure its effectiveness as a current measure of user capacities.” Id. Rather than establish specific indicators or standards to implement the VERP, the 2000 CMP provided “examples” of indicators and standards. Id. at 796. By only providing illustrative standards, “the [2000] CMP fail[ed] to yield any actual measure of user capacities, whether by setting limits on the specific number of visitors, by monitoring and maintaining environmental and experiential criteria under the VERP framework, or through some other method.” Id. This “fail[ure] to provide any concrete measure of use,” we found, was inconsistent with our interpretation of the phrase “address ... user capacities.” Id. at 797. We instructed that “[o]n remand, the NPS shall adopt specific limits on user capacity consistent with both the WSRA and the instruction of the Secretarial Guidelines that such limits describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.” Id. (emphasis added). Given that “NPS was supposed to have completed a CMP for the Merced River some twelve years ago,” we indicated that we would expect temporary measures to be implemented as soon as practicable in order “to avoid environmental degradation pending the completion of [the] task.” Id. at 803-04. In particular, we recognized that “[i]f the NPS is correct in projecting that it will need five years fully to implement the VERP, it may be able to comply with the user capacity mandate in the interim by implementing preliminary or temporary limits of some kind.” Id. at 797. As elucidated in Yosemite II, in Yosemite I, “we held that the entire Merced Wild and Scenic River [CMP] is invalid due to two deficiencies: (1) a failure to adequately address user capacities; and (2) the improper drawing of the Merced River’s boundaries at El Portal.” Yosemite II, 366 F.3d at 731. Because the district court had, on remand, misconstrued our holding in Yosemite I, we explained that “[w]hile we remanded to the district court to enter an appropriate order requiring the [NPS] to remedy these deficiencies in the CMP in a timely manner, we did not otherwise uphold the [2000 CMP].” Id. (internal citations and quotation marks omitted; emphasis added). We concluded that, “[p]ursuant to our original Opinion [in Yosemite I ], the [NPS] must prepare a new or revised CMP that adequately addresses user capacities and properly draws the river boundaries at El Portal.” Id. In Yosemite II, we also “grant[ed] a temporary stay of proceedings and an injunction prohibiting NPS from implementing any and all projects developed in reliance upon the invalid CMP” pending the district court’s consideration of the matter. Id. E. District Court Decisions on Remand On remand, on July 6, 2004, the district court ordered NPS to develop a “new or revised CMP” and to “comply with NEPA by issuing a supplemental EIS.” The district court also enjoined certain projects pending completion of the new or revised CMP. After a series of public scoping meetings, a draft of a revised CMP and SEIS was released for public review in January 2005. After approximately three months of public review, in June 2005, NPS issued its 2005 Revised Plan, a two-volume publication entitled, “Merced Wild and Scenic River — Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement” (“2005 Revised Plan”). The Record of Decision (“ROD”) for the revised CMP was signed on July 25, 2005, adopting Alternative 2 from the SEIS. The 2005 Revised Plan states, as follows: [t]his revised plan will amend the existing Merced River Plan to address the two deficiencies identified by the Court.... This Revised Merced River Plan does not replace the Merced River Plan adopted in 2000, but corrects the deficiencies in its management elements. On November 11, 2005, Friends filed their complaint with the Eastern District of California, alleging five causes of actions against NPS. Friends challenged the 2005 Revised Plan under WSRA, NEPA, the Administrative Procedure Act (“APA”), and our prior orders. The district court, on July 19, 2006, granted in part and denied in part the parties’ cross-motions for summary judgment. Friends of Yosemite Valley v. Scarlett, 439 F.Supp.2d 1074, 1108-09 (E.D.Cal.2006). The district court held that NPS failed to comply with our order that “[o]n remand, the NPS shall adopt specific limits on user capacity ... [that] describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.” Id. at 1098 (internal quotation marks omitted). According to the district court, “some sixteen years after [NPS] was required to create a[CMP] for the Merced River, [it] decide[d] that for approximately five years, it would like to experiment with implementing the VERP program as its primary means of addressing user capacity.” Id. NPS also faded to commit to the use of the VERP program for the long run, stating that “whether VERP will become permanent after five years is not known at this time.” Id. (internal quotation marks omitted). Rather, “[w]hat NPS has created in the VERP portion of the user capacity program in the 2005 Revised Plan is a tentative plan of uncertain duration which adopts temporary limits, which will apply for an unknown length of time.” Id. at 1100. As stated by the district court, the agency “has left itself the option of deciding in five years to abandon its currently proposed method and proceed in an entirely different, as yet unidentified, manner. Under this scenario, there is no indication when, if ever, NPS will finally adopt a permanent primary method for addressing user capacity_” Id. at 1099. Furthermore, despite providing for interim limits while NPS conducts field testing of the VERP indicators and standards, NPS’s interim limits, which are set to apply for a period of 5 years, “are simply the current physical capacity of the facilities in Yosemite Valley.” Id. The court also criticized VERP for being “reactive” in that it calls for management action only after environmental degradation has already occurred. Id. at 1100. The district court further found that the 2005 Revised Plan was deficient because “NPS has violated [the] WSRA by failing to adopt a single, self-contained [CMP] for the Merced River.” Id. at 1094. It found that “language from the Ninth Circuit indicates an intention that a single document be produced, covering everything.” Id. The court stated that although NPS is free to “us[e] parts[,] even very large parts,” of the 2000 CMP in developing “a whole new or revised plan,” it has “proceeded from the [incorrect] assumption that the 2000[CMP] still exists.” Id. at 1093. The district court also held that the SEIS prepared in conjunction with the 2005 Revised Plan did not comply with the NEPA, 42 U.S.C. §§ 4321-4375, because it provided no true “no-action” alternative and because it lacked the required reasonable range of alternatives. Friends of Yosemite Valley, 439 F.Supp.2d at 1105-07; see 40 C.F.R. § 1502.14(d) (requiring “the alternative of no action”); id. § 1502.14(a) (requiring that the EIS “[rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated”). According to the district court, the SEIS improperly relied on elements of the 2000 CMP to describe the environmental baseline. Friends of Yosemite Valley, 439 F.Supp.2d at 1105. The range of action alternatives was insufficient because each alternative is based on VERP, which the court had found inadequate to constitute the primary feature of a user capacity program as required by WSRA. Id. at 1106-07. Next, on November 3, 2006, the district court issued an opinion and order enjoining significant aspects of nine projects in the Merced River corridor until NPS develops a valid CMP. Friends of Yosemite Valley v. Kempthorne, 464 F.Supp.2d 993 (E.D.Cal.2006). NPS appealed the district court’s November 3 decision on December 28, 2006. A stay pending the appeal of its injunction was granted on March 22, 2007 with respect to two of these projects. Friends of Yosemite Valley v. Kempthorne, No. CV F 00-6191 AWI DLB, 2007 WL 896154 (E.D.Cal.2007). On March 28, 2007, the district court issued an order approving the parties’ stipulation regarding a completion date for a new CMP and EIS — on or before September 30, 2009. The district court also entered final judgment, which NPS appealed on April 24, 2007. NPS’s appeals from the district court’s decisions are consolidated in the present case. II. We review a district court’s grant of summary judgment de novo. Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir.1999) (citing Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995)). We review NPS’s actions under the WSRA and NEPA pursuant to the APA, 5 U.S.C. §§ 701-706. Under the APA, we may set aside a decision “ ‘only if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ ” Yosemite I, 348 F.3d at 793 (quoting Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176-77 (9th Cir.2000)). As discussed in Yosemite I, [t]he determination whether the NPS acted in an arbitrary and capricious manner rests on whether it “articulated a rational connection between the facts found and the choice made.” Pub. Citizen v. DOT, 316 F.3d 1002, 1020 (9th Cir.2003). “[C]ourts must 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 they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute....” Id. Nevertheless, we “may not substitute [our] judgment for that of the agency [but] must simply ensure that the agency has adequately considered and disclosed the environmental impact of its actions, bearing in mind that NEPA exists to ensure a process, not particular substantive results.” Hells Canyon, 227 F.3d at 1177. Yosemite I, 348 F.3d at 793. Also, [w]e apply a “rule of reason” standard to review the adequacy of an agency’s EIS, asking whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. This standard involves a pragmatic judgment whether the EISs form, content and preparation foster both informed decision-making and informed public participation, and is essentially the same as review for abuse of discretion. Id. at 800 n. 2 (internal citations and quotation marks omitted). III. Preliminarily, although NPS appealed the interlocutory injunction, it did not address the issue of the injunction in either its opening or reply brief. Arguments not raised by a party in its opening brief are deemed waived. E.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986) (concluding that we “will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief’). Thus, we do not consider the merits of the interlocutory injunction, but only the district court’s rulings on the cross-motions for summary judgment. A. Addressing User Capacities The 2005 Revised Plan, pursuant to the ROD, adopts VERP as its primary method of addressing user capacity. NPS argues that the district court erred in finding that the 2005 Revised Plan did not remedy the deficiency we found in the user capacity component of the 2000 CMP. According to NPS, sufficiently specific measurable limits on use can be found in (1) the Wilderness Trailhead Quota System; the Superintendent’s Compendium limits; (2) the new VERP indicators and standards; and (3) the interim limits imposed by the User Capacity Management Program. 1. Wilderness Trailhead Quota System and Superintendent’s Compendium The district court properly concluded that neither the Wilderness Trailhead Quota System nor the Superintendent’s Compendium are “persuasive as to whether the 2005 Revised Plan adequately addresses user capacities.” Friends of Yosemite, 439 F.Supp.2d at 1096. Although they are steps in the right direction, both these methods for addressing user capacity “predate the 2000[CMP] and were relied upon by [NPS] in support of that plan” to no avail. Id. 2. VERP The district court correctly found that VERP does not properly address user capacities because, by not requiring a response to environmental degradation until after it already occurs, it is reactive and thereby violates 16 U.S.C. § 1281(a) and the Secretarial Guidelines, 47 Fed.Reg. at 39,458-59, interpreting the management principles of § 1281(a). NPS argues that the district court based its holding on a legally incorrect view that the WSRA does not allow reliance on a program that monitors particular indicators, such as VERP, because such a program is, by definition, “reactive.” According to NPS, that ruling is contrary to our holding in Yosemüe I, where we held that NPS could address user capacities with a VERP framework that monitors and maintains environmental and experiential criteria. See Yosemite I, 348 F.3d at 796-97. NPS further contends that the district court’s ruling incorrectly requires NPS to set specific limits on the number of visitors, even though we stated in Yosemite I that a numerical cap is not required. NPS misreads the district court’s analysis, and its argument is therefore flawed. The reason the district court found that the revised VERP was reactionary was not because a framework that monitors and maintains is inherently reactive and thus can never be proactive. Rather, the revised VERP at issue was found to be reactionary, and thus responsive after-the-fact to already occurring degradation, because it does not “ ‘describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.’ ” See Friends of Yosemite, 439 F.Supp.2d at 1098-1100 (quoting Yosemite I, 348 F.3d at 797). NPS next argues the district court incorrectly stated that the VERP as set out in the 2005 Revised Plan “is not oriented towards preventing degradation.” It contends that the indicators and standards established in VERP trigger action prior to degradation of ORVs. In support, NPS asserts that (1) the indicators and standards are set conservatively so that, although management may not act before the indicators and standards are exceeded, action will be taken before there is degradation; (2) the text of the 2005 Revised Plan provides that “[ijndicators, which are measurable variables, are determined first; standards quantifiably define the acceptable conditions (ie., measured values) for each indicator .... [which] are set at a level that will protect and enhance the Merced River’s [ORVs]” (emphasis added); (3) NPS does not choose a particular indicator unless that indicator is “[a]ble to provide an early warning for resource degradation”; (4) management action may occur before a standard is exceeded because “[t]he process of monitoring and its relationship to management actions can be likened to a traffic signal.... A yellow-light condition occurs when monitoring shows that conditions are approaching the standard. This early warning sign may call for implementing proactive management actions to protect and enhance the [ORVs]”; and (5) the district court’s conclusion is at odds with this panel’s decision in Yosemite I. That an indicator may be able to provide an early warning, does not mean that it does in practice. A standard must be chosen that does in fact trigger management action before degradation occurs. Also, that an early warning sign may call for the implementation of proactive management does not provide much assurance that such implementation will occur. Despite NPS’s statements to the contrary, in Yosemite I, we did not foreclose a later finding by the district court that the VERP system remains problematic even if VERP does not rely on examples instead of actual indicators and standards. Currently, VERP requires management action only when degradation has already occurred, and it is therefore legally deficient. 3. Interim Limits The district court properly concluded that the interim limits “do not describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.” Friends of Yosemite, 439 F.Supp.2d at 1099-1100. The 2005 Revised Plan adopted interim limits for a five-year period to restrict the kinds and amounts of visitor use in the Merced River corridor while the VERP program is being tested. These interim limits include caps on overnight lodging, campsites, day-visitor parking, bus parking spaces and employee housing units. Buses are limited to 92 per day in the Yosemite Valley segment, which according to NPS, is consistent with the number of buses that entered the Yosemite Valley at peak periods such as in the mid-1990s. Day-visitor parking spaces, bus parking spaces, and overnight lodging facilities are set at existing levels. The number of campsites in Yosemite Valley would be allowed to increase slightly during the interim period by 163 sites for an interim limit of 638 sites, a level which, as NPS states, falls below both the number of campsites in the Yosemite Valley prior to the 1997 flood and when the Merced River was designated Wild and Scenic in 1987. Some of the limits, while at existing eapacity limits, are below facility levels that existed in 1980, before the Merced River was designated under the WSRA. According to NPS, its choice of interim limits is not arbitrary or capricious. NPS argues that “[i]f the status of the Merced River’s ORVs was sufficient for eligibility in 1987 when Yosemite Valley had more parking spaces, rooms and campsites than at present, it would be improper to simply assume that the lower facility levels permitted under the 2005 [Revised Plan] will ‘degrade’ the ORVs.” Furthermore, NPS argues that its decision is consistent with § 1281(a) of the WSRA because it does not “limit[ ] other uses that do not substantially interfere with public use and enjoyment of’ the Merced’s ORVs. 16 U.S.C. § 1281(a). There is no authority for a presumption that holding facility levels to those in existence in 1987, when the Merced was designated under the WSRA, is protective of ORVs or satisfies the user capacity component of the required CMP. See Friends of Yosemite, 439 F.Supp.2d at 1099-1100. NPS has a responsibility under the “protect and enhance” requirement of the WSRA to address both past and ongoing degradation. Setting interim limits to current capacity limits does not address the problem of past degradation. Moreover, nowhere has NPS shown how its interim limits place “primary emphasis” on the protection of the Merced River’s “esthetic, scenic, historic, archeologic, and scientific features” as required by § 1281(a). And although the WSRA does not preclude basing user capacity limits on current capacity limits, NPS’s decision to base many of its interim limits on current capacity limits was not “founded on a reasoned evaluation of the relevant factors.” See Yosemite I, 348 F.3d at 793 (internal quotation marks omitted). Nor has NPS “articulated a rational connection between the facts found and the choice made.” See id. B. Requirement of a Single, Self-contained Plan The district court did not err by faulting NPS for assuming that the 2000 CMP still existed and finding that the 2005 Revised Plan was deficient because, focusing only on the elements that were explicitly struck down in Yosemite I, it was not a single, self-contained plan. See Friends of Yosemite, 439 F.Supp.2d at 1093-94. The WSRA requires a single, comprehensive plan that collectively addresses all the elements of the plan — both the “kinds” and “amounts” of permitted use-in an integrated manner. As Friends argue, NPS has simply tacked onto the 2000 CMP ten indicators and standards for the purposes of limiting the “amounts” of use, but has failed simultaneously to address the appropriate “kinds” of use. Moreover, before the district court, NPS, in a futile effort to correct this problem, attempted to rely on a December 2005 “Presentation Plan” which, according to NPS, combines all elements from the 2000 CMP and the 2005 Revised Plan that comprise the management plan for the Merced as administered by NPS. The district court properly rejected any such reliance because it was created after the approval of the 2005 Revised Plan, was not presented for public review as the revised plan and contradicted the 2005 Revised Plan which states that it is “the” final revised CMP. See id. at 1094 n. 2. In Yosemite II, we clarified that in Yosemite I, “we held ... the entire Merced Wild and Scenic River [CMP] ... invalid” and that “we did not otherwise uphold the[2000 CMP].” Yosemite II, 366 F.3d at 731 (internal quotation marks omitted). We thus concluded that, “[NPS] must prepare a new or revised CMP.” Id. Contrary to NPS’s assertion, in Yosemite II, we indicated that a single document covering all required elements must be produced. This does not mean that NPS is required to start from scratch with respect to each element of the 2000 CMP that was not explicitly found deficient or that it cannot incorporate parts of the 2000 CMP in preparing its new or revised plan. But, it is required to prepare a single plan, not issue supplemental volumes that simply cross-reference thousands of pages of material from the 2000 CMP. The Secretarial Guidelines mandate such an interpretation of the WSRA, stating that the WSRA requires that a river’s comprehensive management plan state both “the kinds and amounts of public use which the river area can sustain without impact to the values for which it was designated.” 47 Fed.Reg. at 39,458. NPS cannot, thus, address the “amounts” of use without also addressing the “kinds” of use. The two are inseparable. Further support comes from the plain meaning of “comprehensive,” which, according to the Oxford English Dictionary, is “having the attribute of comprising or including much; of large content or scope.” NPS cites to Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 97 L.Ed. 15 (1952), for the proposition that the district court’s holding conflicts with principles of judicial review. In Idaho Power, the Supreme Court stated “that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the [agency] for reconsideration.” Id. There, the D.C. Circuit had entered a judgment and remanded the case to the agency for entry of an order in accordance with its opinion. Id. at 19, 73 S.Ct. 85. However, in response to a motion to clarify the judgment, the appellate court entered a new judgment and itself undertook to modify the agency’s order. Id. at 20, 73 S.Ct. 85 (“[T]he Court of Appeals entered a new judgment, stating that the order of the [agency] ‘be, and it is hereby, modified by striking therefrom paragraph (F) thereof, and that the order of the[agency] herein as thus modified be, and it is hereby, affirmed.’ ”). When we required NPS to prepare a revised or new CMP, we did not commit the same error as the D.C. Circuit-we did not assume the responsibility of revising the 2000 CMP itself, but rather remanded to the agency. The same holds true for the district court with respect to its decision on the cross-motions for summary judgment. Thus, NPS’s argument is without merit. C. The SEIS The supplemental environmental impact statement (“SEIS”) published as part of the 2005 Revised Plan examined four alternatives. Alternative 1 is the “no-action” alternative. It would have managed the river corridor under the 2000 CMP, but without the 2000 version of VERP. The three action alternatives each includes the revised version of VERP. Alternative 2, which the ROD adopted, includes the interim limits of the User Capacity Management Program which are based on the most part on current facility limits. Alternative 3 would have included all components of Alternative 2, but would have added a maximum daily visitor limit for each river segment, a maximum annual visitation limit of 5.32 million for the entire river corridor and a daily limit on the number of day hikers to Half Dome. The 5.32 million limit is higher than the highest level of visitation ever in Yosemite, which was 4.19 million in 1996. Alternative 4 would have again included all components of Alternative 2, but would have also established maximum use levels within each management zone, based on capacity factors for the average number of people per unit area, and would have imposed a maximum annual visitation limit of 3.27 million, which equals the parkwide visitation level in 1987. 1. “No-action” Alternative The district court correctly ruled that the SEIS did not set forth a true “no-action” alternative because the SEIS assumes, as the baseline, the existence of the 2000 CMP, which we previously found invalid. Such an assumption is logically untenable. The baseline alternative should not have “assume[d] the existence of the very plan being proposed.” Friends of Yosemite Valley, 439 F.Supp.2d at 1105. This is so even given the deference owed to the agency’s choice of a “no-action” alternative and the ongoing nature of agency management. The “no-action” alternative should have included the elements from the 1980 GMP, the Wilderness Plan and other instruments such as the Superintendent’s Compendium. However, including the 2000 CMP — even those elements of the CMP that we did not explicitly strike down- — -in the baseline predetermines user capacity based on a plan that was held invalid. As the district court stated, because the Ninth Circuit held the 2000[CMP] to be illegal, NPS cannot properly include elements from that plan in the no action alternative as the status quo.... [A]t the time NPS was creating the no action alternative for the 2005 Revised Plan, the Ninth Circuit had explicitly held the entire 2000[CMP] to be invalid, and no comprehensive management plan for the Merced River existed. The elements from the 2000[CMP] which NPS includes as the status quo had to be implemented, if at all, in the 2005 Revised Plan. It was thus improper for NPS to refer to those elements as part of the status quo at the time the no action alternative was presented to the public. A no action alternative in an EIS is meaningless if it assumes the existence of the very plan being proposed. Id. Thus, NPS’s “no-action” alternative is invalid under NEPA. 2. Range of Action Alternatives The district court correctly found that the SEIS lacked a reasonable range of action alternatives, and was thus unreasonably narrow, in violation of NEPA. The three action alternatives each included the revised version of VERP as the primary mechanism for dealing with user capacity, with a five year interim period while VERP is tested. Because the district court based its decision on the fact that each alternative relied on the revised VERP and because it is incorrect in its assessment of VERP, NPS argues that the court had no legitimate basis for finding that the SEIS lacked a reasonable range of action alternatives. The action alternatives are the “heart” of an EIS. 40 C.F.R. § 1502.14. “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate. An agency must look at every reasonable alternative, with the range dictated by the nature and scope of the proposed action, and sufficient to permit a reasoned choice.” Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir.1995) (internal citations and quotation marks omitted). Applying the “rule of reason” standard, we find that the range of action alternatives is unreasonably narrow because the alternatives are virtually indistinguishable from each other. First, each of the three action alternatives is primarily based on the VERP program which does not adequately address user capacity. Moreover, despite the supposed alternatives it proposed, NPS itself was aware that compliance with NEPA would require consideration of different means for addressing user capacity other than just VERP. For example, an NPS attorney advised that “VERP not be the only User Capacity framework analyzed in the Plan.” As indicated in meeting notes, NPS recognized that ‘VERP is just a set of words ... and [the public is] expecting us to look at other [user capacity] systems and they care about transparency.” Perhaps most critically, NPS realized the “need for a reasonable range of user capacity alternatives because the original EIS did not look at alternatives for implementing carrying capacity.” (emphasis added). Second, for the first five years, the interim limits proposed by the three alternatives are essentially identical. As indicated in NPS’s meeting notes, “[a]ll alternatives start with levels of use consistent with current use levels.” See also Friends of Yosemite, 439 F.Supp.2d at 1099 (“These ‘limits,’ however, are simply the current physical capacity of the facilities in Yosemite Valley....”). Although Alternatives 3 and 4 also include maximum use levels and annual visitation limits, the action alternatives were not varied enough to allow for a real, informed choice. See Yosemite I, 348 F.3d at 800 n. 2. IV. For the reasons stated, we conclude that the 2005 Revised Plan does not describe an actual level of visitor use that will not adversely impact the Merced’s ORVs as required by Yosemite I and the WSRA. We further conclude that the WSRA requires that the CMP be in the form of a single comprehensive document, dealing with all the required elements, including both the “kinds” and “amounts” of use, and that, therefore, the 2005 Revised Plan is deficient because it only dealt with the two components that were struck down in Yosemite I and was not a single, self-contained plan. Finally, we conclude that the SEIS violates NEPA in both its “no-action” and action alternatives. We remand to the district court for further action consistent with this opinion. In No. 07-15124, the government’s appeal from the interlocutory injunction is DISMISSED. In No. 07-15791, the judgment of the district court is AFFIRMED. . Congress added the current § 1274(d) to the WSRA in 1986. See Pub.L. No. 99-590, § 501(b)(3), 110 Stat. 3330, 3335 (1986). Thus the Secretarial Guidelines's use of "carrying capacity” predated the enactment of the "address ... user capacities” language in § 1274(d). . While we have not required that NPS set a numerical cap on visitors but rather that it "deal with or discuss the maximum number of people that can be received at” the Merced, Yosemite I, 348 F.3d at 796, as counsel for Friends alluded to at oral argument, numerical limits on visitor use is commonly used by agencies in order to protect our natural environment. See, e.g., U.S. Air Tour Ass’n v. FAA, 298 F.3d 997, 1011-12 (D.C.Cir.2002) (allowing numerical cap on the number of commercial air tours over the Grand Canyon and noting that "[l]imiting the number of visitors at a given time in a national park is a standard measure used to protect park resources”); Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128-29 (8th Cir.1999) (upholding the U.S. Forest Service's EIS where nine out of ten alternatives placed limits on visitor use at or below current levels). . The Wilderness Trailhead Quota System imposes limits on the number of overnight users allowed within the wilderness segments of the river, which comprise 51 of the 81 miles of the Merced under NPS management. It has been in place since the 1970s. The Superintendent's Compendium limits the time and location of specific activities, or imposes limits on the number of people allowed to engage in specific activities. For example it includes limits on overnight group size, day use group size, stock animals per group, stock animal travel areas and areas of non-motorized water craft use and fishing. . Although this does not alter our conclusion, NPS is correct that the district court erred to the extent that it interpreted the WSRA to require that a method adopted for addressing user capacity be permanent. An appropriate method must be in place. But, just as NPS has discretion in choosing a particular method of addressing user capacities, NPS has the discretion to make improvements to its method, or switch to a new method, based on new scientific evidence. See Yosemite I, 348 F.3d at 796-97. Furthermore, the very nature of VERP, which we concluded in Yosemite I could be an acceptable method of addressing user capacities if implemented properly, is fluid in that it is an iterative process that improves and adjusts with time. See also Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 869-70 (9th Cir.2004); Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 965 (9th Cir.2003). NPS admits, nevertheless, that it has chosen VERP as its primary method of dealing with user capacity issues for the foreseeable future and takes issue with the district court's proper characterization of VERP as "tentative.” . To illustrate the level of degradation already experienced in the Merced and maintained under the regime of interim limits proposed by NPS, we need look no further than the dozens of facilities and services operating within the river corridor, including but not limited to, the many swimming pools, tennis courts, mountain sports shops, restaurants, cafeterias, bars, snack stands and other food and beverage services, gift shops, general merchandise stores, an ice-skating rink, an amphitheater, a specialty gift shop, a camp store, an art activity center, rental facilities for bicycles and rafts, skis and other equipment, a golf course and a dining hall accommodating 70 people. Although recreation is an ORV that must be protected and enhanced, see 16 U.S.C. § 1271, to be included as an ORV, according to NPS itself, a value must be (1) river-related or river dependant, and (2) rare, unique, or exemplary in a regional or national context. The multitude of facilities and services provided at the Merced certainly do not meet the mandatory criteria for inclusion as an ORV. NPS does not explain how maintaining such a status quo in the interim would protect or enhance the river's unique values as required under the WRSA. . Our decision in High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630 (9th Cir.2004), highlighted some of the problems with simply maintaining use at current levels. In examining compliance with the Wilderness Act, we stated that "[a]t 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.” Id. at 647.

City of Riverview v. Surface Transportation Board

OPINION GIBBONS, Circuit Judge. Intervenor Riverview Trenton Railroad Company (“RTR”) sought an exemption from the Surface Transportation Board (“Board”) that would allow it to operate an intermodal transportation facility on property located in the Cities of Trenton and Riverview and the County of Wayne in Michigan. The Board, a successor to the Interstate Commerce Commission, has exclusive jurisdiction over rail lines that are part of the interstate rail network. Under federal preemption, state and local governments may not condemn railroad property that is under the regulatory jurisdiction of the Board. The local governments protested to the Board that RTR’s proposal was a sham designed to prevent them from taking the property by eminent domain. as part of their riverfront redevelopment plans. RTR’s proposal was evaluated by the Board and underwent an environmental review pursuant to the National Environmental Policy Act’s (“NEPA”) requirements. 42 U.S.C. § 4321 et seq. Based on the Environmental Assessment (“EA”) prepared under NEPA, the Board concluded that, as long as certain conditions were met, the project would have no significant impact on the human environment. It also concluded that RTR proposed a bona fide railroad and transportation facility. Petitioners appeal from the Board’s decision. For the following reasons, we affirm the Board’s decision. I. The parties contest the future development of a 76-acre property located in the cities of Trenton and Riverview, Michigan and along the Detroit River. The property was owned by a company called DSC between 1998 and 2000.- During this time period, DSC discussed development of the site with officials from Trenton and River-view and Wayne County. The cities and county wanted to acquire the land and convert the property to a public use such that the public would have improved access to this area and the area would become more aesthetically pleasing. Before this occurred, however, DSC sold the property to Crown Enterprises. In November 2000, Crown formed a subsidiary, Riverview Trenton Railroad Company. RTR incorporated under the Michigan railroad corporation statutes. On November 27, 2000, Crown transferred the property to RTR via a quitclaim deed. . Over this same time period, the local governments realized that Crown would not sell the property to them. They therefore began investigating the possibility of taking the property under Michigan’s Uniform Condemnation Procedures Act. The county’s attorney, Mark Zausmer, sent a letter to Crown requesting information relevant to the proposed condemnation of the property. On December 11, 2000, Crown responded to Zausmer’s letter by asking for a more specific description of the property at issue. Zausmer sent a legal description to Crown on December 29, 2000. On January 5, 2001, RTR filed suit in the Eastern District of Michigan seeking to enjoin the county from pursuing its eminent domain efforts. The district court issued a preliminary injunction on April 10, 2001, holding that the county’s -efforts were preempted by the Board’s exclusive jurisdiction over railroad activities under the Interstate Commerce Act. RTR quickly began work on development of the property. It filed a Notice of Exemption with the Board describing its plans to create an intermodal transportation facility. Specifically, RTR planned to use tracks on the property to provide rail service; at that location, it would receive containerized freight from railroads and transfer it to trucks, and vice versa. The class exemption would allow RTR to operate as a Class III railroad (defined as a railroad earning less than $20.9 million a year). The Board published public notice of the exemption in the Federal Register in January 2001. Thereafter, the cities of Riverview and Trenton and Wayne County filed separate petitions with the Board to revoke RTR’s exemption. The cities and county argued that RTR was not entitled to the exemption it had sought and further that the property should be used for alternative purposes. They alleged that RTR was not planning a legitimate rail operation but rather sought to prevent the local communities from taking the property through eminent domain procedures. RTR filed a response. It said that the communities had made no effort to condemn the property until after Crown announced plans to use the property for rail operations. It further alleged that the communities’ only interest was to keep out the proposed rail operations. In February 2002, the Board disallowed RTR’s use - of the class exemption. The Board based its decision on the need for a more detailed-review of the proposal. While attempting to obtain a class exemption for its rail operations, RTR also sought an individual exemption in order “to put to rest any outstanding concerns that might exist about RTR’s invocation of the class exemption procedure.” Accompanying this petition was an environmental report, documenting the potential environmental effects of the project, which were anticipated to be minimal, and .proposed mitigation efforts. The Board undertook an environmental analysis of RTR’s proposal under the procedures outlined in NEPA. The Board reviewed RTR’s proposal and its environmental report, and asked for additional data on air quality, noise, environmental justice, cumulative effects, and transportation. RTR and its environmental consultant prepared a draft Environmental Assessment from this data. The Board reviewed the draft EA and issued it for public review on October 15, 2001. It concluded that RTR’s proposal would have no significant impact on the area. The Board sent copies of the EA to federal, state, and local government agencies. It also published a notice in the Federal Register advising the public that the EA was available for review and inviting comments. 66 Fed.Reg. 52,477 (Oct. 15, 2001). The cities of Riverview and Trenton and Wayne County submitted comments on the EA. The Board responded to these comments in a Post-EA issued on January 22, 2002. In this document, the Board recommended that RTR undertake several mitigation measures to minimize the impact of the rail operations. If these mitigation measures were implemented, the Board concluded that there would be no significant environmental impact on the area. After the Board issued the Post-EA, it held a public meeting in the area. ' Local officials and residents expressed opposition to the project during the meeting. These parties also expressed opposition in over 1700 letters sent to the Board after the meeting. The Board responded to concerns raised at the meeting and in the letters by issuing a Supplemental Posb-EA in August 2002. The Board proposed additional conditions upon RTR’s operation and concluded that if the conditions were met, there would be no significant impact on the environment. As well as undertaking environmental reviews, the Board also requested evidence about the public need for RTR’s project and any specific plans of the local governments to take this property through eminent domain procedures. RTR submitted evidence showing that its rail operations would benefit a variety of transportation companies. Approximately fifty companies sent letters to the Board indicating that RTR’s project would fill a need for an intermodal transportation facility. Three experts testified that the Detroit area needed an intermodal facility.- The local governments responded to the Board’s request by arguing that the public interest “would be disserved by granting RTR’s petition because it would divest local communities of the ... authority they need to assure that the use of the property is consistent with their broader development plans.” However, they admitted that they had just taken the preliminary steps of investigating the possibility of condemning the land and that the “County had not at that time and has not at this time decided to take this parcel.” In May 2003, the Board finally issued a decision regarding RTR’s proposed operations. It found that RTR’s proposal was bona fide, that the Detroit area had a need for an intermodal transportation. facility, and that RTR would be able to meet this need. It also found that there would be no significant impact on the environment, assuming that RTR followed the required mitigation procedures outlined in the EA, Post-EA, and Supplemental Post-EA. The Board concluded that RTR should be allowed to proceed. In order to alleviate the concerns of the local communities; the Board imposed a requirement that RTR report on its progress in implementing the project at regular intervals for three years. If RTR does not begin developing rail operations, the Board reserves the right to reopen the matter. The local governments filed requests for reconsideration. The Board denied these requests. However, it did address an issue raised late in the administrative proceedings, which was the designation of the Detroit River as an American Heritage River. The Detroit River had received this designation by an Executive Order issued in 1998, well before proceedings before the Board had begun. The Board found that the designation did not require reconsidering the matter because the RTR proposal would have no adverse environmental impact on the Detroit River or its recreational resources and because the RTR proposal comported with the goal of economic revitalization advanced by the American Heritage Rivers Initiative. Petitioners filed a timely notice of appeal in this court for review of the Board’s decision. II. The questions before us are whether the Board properly granted the company’s request for an exemption in light of the claims of the local governments that: (1) RTR is simply trying to defeat efforts of the governments to acquire the property for recreational and non-industrial uses and is not proposing a bona fide common carrier rail use, and (2) in awarding the exemption, the Board violated its duties under NEPA, the Coastal Zone Management Act, and the American Heritage Rivers Executive Order. This court’s review of the Board’s decision is narrow. R.R. Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 547 (6th Cir.2002). Under the Administrative Procedure Act (“APA”), a reviewing court must uphold an agency’s findings and conclusions unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, ... [or] unsupported by substantial evidence.” 5 U.S.C. § 706(2). In assessing whether a decision is arbitrary or capricious, the court must consider if there was a “rational connection between the facts found and the choice made.” Film Transit, Inc. v. ICC, 699 F.2d 298, 300 (6th Cir.1983). A decision is not arbitrary or capricious if “it is possible to offer a reasoned, evidence-based explanation for a particular outcome.” R.R. Ventures, Inc., 299 F.3d at 548. A decision is supported by substantial evidence if there is “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached.” R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm’n, 166 F.3d 815, 818 (6th Cir.1998). III. The cities and county assert that the Board erred in approving RTR’s application to operate as a common carrier because, they allege, RTR merely wanted to prevent eminent domain proceedings from advancing. The Board found that “based on careful consideration of the entire record, this is a legitimate rail transportation project, which should be allowed to go forward.” It observed that “RTR has developed specific plans for constructing an intermodal facility for which there is evidence of a current demand ... [and] taken reasonable steps to prepare for the commencement of rail operations.” Further, RTR “has submitted statements from shippers supporting its project.” The Board’s decision to grant RTR an individual exemption was not arbitrary or irrational. The record before it provided sufficient evidence for it to conclude that RTR proposes a legitimate operation. RTR developed specific plans to. create its railroad operations. In June 2000, it purchased a railway easement for “rail ingress and egress to and from the Crown Parcel.” It also hired an engineering firm “to evaluate the suitability of the proposed site of the.RTR[] shortline and intermo-dal facility in the Detroit area and to design the track layout within the facility.” The engineering firm prepared a “feasibility engineering review and layout” of the operations. Further, , RTR hired URS Corporation to prepare an environmental report on the effects of its proposal for submission to the Board. Along with undertaking these preliminary steps, RTR submitted a significant amount of information in support of its proposal. For example, it submitted a detailed environmental report, documenting the potential environmental effects of the project and proposed mitigation efforts. It also submitted evidence showing that its rail operations would benefit various types of transportation companies. Approximately fifty companies sent letters to the Board indicating that RTR’s project would fill a need for an intermodal transportation facility. Three experts testified that the Detroit area needed an intermodal facility. Thus, the Board had before it substantial evidence that RTR had taken the preliminary steps necessary to establish its facility and that there was a need in the area for such a facility. Given this evidence, it was rational for the Board to conclude that RTR proposed a bona fide rail operation. In our opinion, these findings are not arbitrary or irrational in violation of the requirements of the APA, 5 U.S.C. § 701 et seq. Petitioners rely on the Board’s decision in Jefferson Terminal Railroad Company as evidence that RTR sought an exemption only to prevent condemnation proceedings from advancing. Jefferson Terminal Railroad Co. — Acquisition and Operation Exemption — Crown Enterprises, Inc., STB Finance Docket No. 33950 (March 19, 2001). In Jefferson Terminal, Jefferson, a subsidiary of Crown Enterprises, invoked class exemption procedures to acquire and operate 1.2 miles of rail line in Detroit. At the time Jefferson filed its notice with the Board, Detroit had already initiated condemnation proceedings. Jefferson did not indicate to the Board that there was an ongoing condemnation action. The Board revoked Jefferson’s class exemption, because it felt that “a more searching process” under a petition for an individual exemption or a full application was necessary. In so doing, the Board stated that it was “troubled by Jefferson’s failure to disclose that the property was about to be condemned.” In the Board’s view, Jefferson’s failure to mention this fact bolstered the “City’s allegation that the proposal that Jefferson submitted to this Board was merely a device to acquire or retain property for non-rail purposes using federal preemption as a shield.” Jefferson, however, does not require us to find that the Board’s decision that RTR proposed a legitimate operation was arbitrary or capricious. Unlike in Jefferson, the Board here was well aware that the local governments were considering condemnation proceedings on this property. In its decision granting an individual exemption, the Board recognized that “the County and the local communities have a different vision for this property than RTR.” More specifically, in its earlier decision denying a class exemption, the Board explicitly acknowledged the concerns of the local governments that RTR was seeking an exemption to prevent eminent domain proceedings from commencing. In that decision, the Board stated: Wayne County and the other opponents claim that RTR’s proposal is merely an attempt to preclude the condemnation of some or all of the involved property for public purposes. To date, no evidence has been submitted that shows with any specificity what property may be condemned, who would condemn it, under what authority, and for what specific purpose. Nor has Wayne County or any other public body submitted any timetable for condemnation. Thus, it is clear that the Board was cognizant of the local governments’ concerns when it reached its decision that RTR proposed a bona fide railroad operation. Further, unlike in Jefferson, the local governments had not commenced condemnation proceedings by the time RTR requested an exemption from the Board. The local governments admitted that they had just taken the preliminary steps of investigating the possibility of condemning the land and that the “County had not at that time and has not at this time decided to take this parcel.” We agree with the Board that the Jefferson Terminal case is different from the present case and does not overcome the Board’s conclusion that RTR’s proposal is made in good faith. Finally, the Board’s decision to require RTR to report on its progress in implementing its proposal ensures that RTR will not be able to use the Board’s exemption to permanently shield the property from a condemnation action. If RTR does not begin work on its rail operations, the Board reserves the right to reopen the matter. ■ Because the Board will periodically monitor RTR’s progress, there is little concern that the Board’s authority will be misused in order to insulate the property from the local governments should the railroad operation fail to progress. IV. A. The National Environmental Policy Act NEPA requires federal agencies to consider the environmental effects of federal actions. 42 U.S.C. § 4321 et seq. It “sets forth essentially procedural requirements to assess environmental impacts of major federal actions.” Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 414 (6th Cir.2004). The Board, through its environmental staff, prepared an' environméntal assessment that was reviewed and approved in its opinion granting an exemption to RTR. The local governments contest a number of the'Board’s conclusions. First, they complain that the Board did not assess the environmental impact of adding river barge service' at RTR’s terminal, a long-range possibility for which RTR had not developed specific plans. The Board concluded that the potential effects of a water service terminal on the Detroit River were too speculative and would be examined in the future by the Corps of Engineers prior to construction and operation. We agree that the possibility is too speculative at present. As the Supreme Court observed in Kleppe v. Sierra Club, NEPA “speaks solely in terms of Proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions.” 427 U.S. 390, 410 n. 20, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). RTR’s consideration of adding barge traffic to its intermodal facility is not a proposed action, but rather a less imminent action that may or may not occur. Further, it does not appear that RTR has any developed plans for implementing a proposal on barge traffic. Without some details as to the amount of barge traffic contemplated or the nature of the pier or dock to be built, any environmental analysis would be based solely on conjecture. See Crounse Corp. v. ICC, 781 F.2d 1176, 1195 (6th Cir.1986) (rejecting contention that NEPA requires review of contemplated changes, because such proposals “have [not] been developed to a point where more meaningful environmental analysis of these proposals is possible”). This same reasoning applies to the possibility raised by the local governments that RTR may buy additional acreage in the future and enlarge its facility. The record before the Board showed no current plans to acquire additional property. Nor is there any evidence suggesting that RTR has plans to expand its operations. Thus, any environmental analysis would be based on speculation about how much property might be acquired and what development might occur on such property. The Board reasonably declined to evaluate RTR’s potential purchase of additional land. See id. at 1194 (holding that NEPA does not require review of contemplated changes). With respect to petitioners’ contention that the Board erred in failing to consider the straightening and elevation or outright relocation of the area’s major thoroughfare, we find that any plans to change Jefferson Avenue'are speculative. Further, any potential changes to this street would require the consent of local governmental authorities. The Board was not required to consider this possibility in its review of RTR’s proposal. We also do not find that there is an adequate basis for Riverview’s objections concerning air quality. Riverview objects to the finding that air quality would be improved by relying more heavily on rail transportation rather than trucks, but the record fairly explains the factual basis for this trade-off. The record contains a study by the Michigan. Department of Transportation that showed that such an intermodal facility would produce a 50 percent reduction in carbon monoxide, particulate matter, and other emissions. It appears that the Board fully evaluated air quality effects and reached reasonable conclusions. The same is true of the Board’s evaluation of the facility’s impact on noise levels in the area. Expected noise levels were examined in detail, and the Board found that noise levels would remain low. Additionally, in order to mitigate any potential damage from increased noise levels, the Board imposed a landscaping condition requiring berms and vegetation and a condition restricting the hours of operation. Finally, Riverview complains about the possibility that the additional train traffic will cause traffic problems and delay emergency vehicles’ response times. The record reflects that the Board extensively considered how the RTR facility would affect local transportation and emergency response providers. The EA upon which it relied concluded that, while delays could be possible when RTR uses its rail connection at the north end of its property, alternate routes exist and most of the time RTR would use the rail crossing at the south end of its property. The Board imposed a condition on RTR that requires it to provide two hours notice to emergency response providers prior to using the crossing at the north end of the property. Thus, the Board’s decision with respect to emergency response providers and transportation issues reflects that it undertook the requisite hard look mandated by NEPA and, from that analysis, reached a reasonable decision. See Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718 (NEPA requires only that the court “insure that the agency has taken a ‘hard look’ at environmental consequences”). B. Coastal Zone Management Act Because RTR’s proposed facility borders the Detroit River, the Coastal Zone Management Act, (“CZMA”), 16 U.S.C. § 1451 et seq., applies. The CZMA was enacted to encourage the states to exercise their full authority over the lands and waters in the coastal zone by assisting the states, in cooperation with Federal and local governments and other vitally affected interests, in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance. Id. § 1451®. Petitioners contend that the Board did not give notice to the state agency as it was required to do under its rules implementing the CZMA. They also admit that they did not raise this issue before the agency and that “this deficiency [the alleged failure to comply with the CZMA] was only recently discovered.” It is well-established that this court generally will not hear issues raised for the first time on appeal. See Bhd. of Locomotive Eng’rs v. ICC, 909 F.2d 909, 912 (6th Cir.1990) (observing that, because an issue was, not raised before the agency, there is “no ruling for this court to review” and thus the court will not hear the issue); Hix v. Dir., Office of Worker’s Comp. Programs, 824 F.2d 526, 527 (6th Cir.1987) (“[A] court should not consider an argument that has not been raised.in the agency proceeding that preceded the appeal.”). Petitioners had multiple opportunities to object to the alleged failure to comply with the CZMA’s requirements before the Board. The Board solicited comments from local governments, invited comments on the EA from the public, heard citizens’ concerns in a public meeting in the project area, and considered the governments’ requests for agency reconsideration. Not once did petitioners discuss the CZMA’s requirements in their communications with the Board. Thus, because they wholly failed to raise this issue below, we conclude that this issue was waived. C. American Heritage Rivers Executive Order President Clinton created . the American Heritage Rivers Initiative to “protect and restore rivers and their adjacent communities.” Exec. Order No. 13,-061, 62 Fed.Reg. 48,445 (Sept. 15, 1997), amended by Exec. Order 13,093, 63 Fed. Reg. 40,357 (July 27, 1998). Under this initiative, “communities ... nominate rivers as American Heritage Rivers and the Federal Role [is] solely to support community-based efforts to preserve, protect, and restore these rivers and their [adjacent] communities.” Id. at 48,445. The Executive Order directs agencies to “ensure that their actions have a positive effect on the natural, historic, economic, and cultural resources of -American Heritage River communities.” Id. at 48,446. It requires agencies to “consult with American Heritage River communities early in the planning stages of Federal actions, take into account the communities’ goals and objectives and ensure that actions are compatible with the overall character of these communities.” Id. The Detroit River has been designated an American Heritage River. Proclamation No. 7112, 63 Fed. Reg. 41,949 (July 30,1998). Petitioners argue that the Board did not fully consider the effect of RTR’s proposal on the Detroit River, in contravention of the American Heritage Rivers Initiative. Further, they contend that the Board ignored “the substantial record of the public’s overwhelming desire to restore and redevelop the riverfront for the benefit of the entire community.” Petitioners, however, cannot state a claim against the Board under the American Heritage. Rivers Initiative. The Executive Order specifically states that it “does not create any right or benefit, substantive or procedural, enforceable by any party” against agencies. 62 Fed.Reg. at 48,448. Thus, this court cannot review whether the Board’s actions violated the Executive Order, because it does not create a right of action against the Board. Recognizing that the Executive Order limits judicial review of the Board’s action under this initiative, petitioners argue that the Board’s actions in ignoring the initiative evidence that the Board did not undertake a sufficient review under NEPA. However, the EA encompassed a review of the effect of RTR’s proposal on water resources, including water quality of the Detroit River, groundwater, and wetlands. Further, the Board concluded in its EA and Post-EA that “the RTR proposal would not -have adverse impacts on water resources or on access to resources along the Detroit River.” It also “determined that RTR’s use of the property would not alter the historic commercial use of the property.” As the Board explained, the Executive Order does not restrict such projects in river areas that are heavily industrialized, such as the area in which RTR will build its facility, but allows economic revitalization in these areas. We thus find no reversible error in the Board’s review of this issue. V. For the foregoing reasons, we affirm the Board’s decision to grant an individual exemption to RTR. . Crown Enterprises is also the parent company of RTR. . Jefferson and this case also differ in that Jefferson was a decision about a class exemption. The Board did not decide that Jefferson could never operate a railroad in reaching its decision; rather, it concluded that a more searching process, such as that undertaken with an individual exemption, would be more appropriate.

Raymond Proffitt Foundation v. U.S. Army Corps of Engineers

OPINION OF THE COURT SMITH, Circuit Judge. The Raymond Proffitt Foundation and the Lehigh River Stocking Association (collectively, the “Foundation”) appeal from an order of the Eastern District of Pennsylvania granting summary judgment to the U.S. Army Corps of Engineers (“Corps”). The District Court concluded that the Water Resources Development Act of 1990 (“WRDA”), the statute the Foundation asserts the Corps is violating, provides no “law to apply” to the facts this case presents and that the Corps’ actions are therefore not subject to judicial review under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. (“APA”). Athough we disagree with that specific holding of the District Court, the broad deference that Congress granted the Corps in executing the environmental mission of the WRDA places upon us the obligation to provide a correspondingly deferential judicial review. Granting the Corps that deference, we conclude that the Foundation has failed to demonstrate that the Corps has unlawfully delayed or withheld agency action or otherwise been arbitrary, capricious, or in violation of law. We will affirm the District Court’s grant of summary judgment. I. The Raymond Proffitt Foundation and the Lehigh River Stocking Association are organizations whose members fish, hunt, boat, raft, and otherwise recreate in and along the Lehigh River downstream of the Francis E. Walter Dam (“Walter Dam”) in Northeastern Pennsylvania. The Walter Dam is operated by the Philadelphia District of the Corps as part of the Le-high River Basin Flood Control Project. Completed in 1961, Congress originally authorized construction of the Walter Dam primarily for flood control, but later expanded the mission of the Walter Dam in 1988, requiring it to be “operated in such a manner as will protect and enhance recreation.” Water Resources Development Act of 1988, Pub. L. No. 100— 676, § 6, 102 Stat. 4012 (1988). Congress subsequently enacted the Water Resources Development Act of 1990. Section 306 of this Act required the inclusion of “environmental protection as one of the primary missions of the Corps of Engineers in ... operating, and maintaining water resources projects.” WRDA of 1990 § 306, 33 U.S.C. § 2316 (1994). In 1994, the Corps issued a “Revised Manual” presenting a plan of regulation for the Walter Dam. In this manual, the Corps noted that “[t]his dam, along with Beltzville Lake Dam and Reservoir (Corps of Engineers project) are the only major reservoirs in the Lehigh River watershed intended to serve flood control purposes.” The Corps stated that the “primary objective of the F.E. Walter Reservoir Project is flood control. Other objectives are lake and downstream recreation (whitewater) and drought emergency water supply/water quality storage.” In establishing the water control plan for the Walter Dam, the Corps stated that: Releases made to meet minimum release criteria will be sufficient to maintain and enhance downstream fisheries. Criteria has [sic] been developed to avoid abrupt gate raising and closing changes during above normal releases for flood control regulations. Efforts will be made to make releases so as to minimize adverse shock effects on downstream fisheries. Nonetheless, the Corps believed “[w]ater control management needs must take precedence over fishery accommodation but the attempt should be made to adjust procedures for fishery purposes whenever possible.” Assessing the overall effect of the water control plan, the Corps concluded the “Francis E. Walter Reservoir provides good habitat for fisheries. The reservoir, and the Lehigh River (below the dam), are listed as High Quality-Cold Water Fisheries in Pennsylvania (Chapter 93 Water Quality Standards).” In August of 1999, the Foundation filed a twelve count complaint against the Corps and its Philadelphia District’s Commander in the District Court. Jurisdiction was appropriate pursuant to 28 U.S.C. § 1331. Count one of the complaint, brought pursuant to the Administrative Procedures Act, 5 U.S.C. § 706, asserted that the Corps was unlawfully withholding or delaying agency action required by § 306 of the WRDA and otherwise not acting in accordance with the WRDA. The Foundation alleged that these violations stemmed from two actions or inactions on the part of the Corps. First, the Foundation asserted the Corps failed to include “environmental protection” as one of the “missions” for the Walter Dam in the drafting of the 1994 Manual. Supp. App. 8 (Pis.’ Compl. ¶¶ 50-52). Second, the Foundation claimed: [t]he Corps is not fulfilling, or even attempting to fulfill its mission of environmental protection because it a) releases large amounts of water during high flow periods, usually in winter and spring; and b) fails to store water during these high flow periods and release that water during low flow periods, usually summer. Id. (Pis.’ Compl. ¶ 53). Presently, the Corps’ basic operational rule for the Walter Dam is that during normal conditions the Corps will match the dam’s outflow to its inflow. Thus, the Corps generally keeps the amount of water in the Walter Dam’s reservoir at a constant elevation of 1300 feet, thereby attempting to replicate in the lower Lehigh River below the dam the flow that would be naturally present if the Walter Dam had not been constructed above. During the wetter winter and spring months, more water enters the reservoir from rainfall and melting snow. The Corps therefore releases more water from the dam, resulting in a higher water flow and river level below. During drier summer months, as less water falls and drains into the reservoir, the Corps releases less water from the reservoir. This results in a correspondingly lower flow and river level below. The Foundation believes that, so as to “provide a better environment for aquatic species, provide recreation for fisherman [sic], canoeists, and provide whitewater rafting throughout the summer,” the Corps is “required” by the WRDA to improve upon the naturally occurring environment by augmenting the lower Lehigh River’s flows in the summer. The Foundation therefore sought declaratory and injunctive relief mandating the Corps to change its policy and operations at the Walter Dam to reflect the judgments of the Foundation regarding the proper operation of the dam. The Corps responded to this first claim by asserting that § 306 of WRDA is a mission statement which is fundamentally discretionary in nature, committed to the agency by law, and unre-viewable through the APA. The District Court granted summary judgment to the Corps on all of the Foundation’s claims, holding with respect to count one that the Corps’ actions under the WRDA were unreviewable because the WRDA did not provide any “law to apply” to this situation. Raymond Proffitt Found, v. U.S. Army Corps of Eng’rs, 175 F.Supp.2d 755, 767 (E.D.Pa.2001). The District Court reasoned that the WRDA’s “environmental protection mission was placed upon the Corps as a whole, not upon each individual water resources project. The Corps has the discretion to apply this statutory mission to water resources projects that it operates, but is not obligated to implement it at any particular one.” Id. at 767. “The text of § 2316 provides only a general statement that establishes environmental protection as one of the Corps’ primary missions. However, this language gives no guidance on how this mission is to be carried out.” Id. at 766. Therefore, the District Court reasoned that this statute fit within the exception from reviewability applied by the Supreme Court in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The Foundation appealed only from the District Court’s judgment on count one that “[t]he mission statement of § 2316 is insufficient to provide law to apply in this case” and that the Foundation can, therefore, assert no violation of the WRDA through the APA. 175 F.Supp.2d at 767. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1291. “Our scope of review of the district court’s decision on” whether “judicial review was ... available pursuant to 5 U.S.C. § 701(a)(2)” and whether the agency action was not “in accordance with law ... is plenary.” See Davis Enters. v. U.S. E.P.A., 877 F.2d 1181, 1184 (3d Cir.1989). However, where Congress has granted discretion to an agency to make decisions, “[w]e are only free to determine whether the agency followed its own guidelines or committed a clear error of judgment.” Id. at 1186 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). “While we may not have made the same decision as the [agency], we are not free to substitute our judgment for that of the agency on [an] issue.” Id. II. Section 306 of the WRDA states: “The Secretary [of the Army] shall include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, constructing, operating, and maintaining water resources projects.” 33 U.S.C. § 2316(a). In the event that an administrative agency covered by the strictures of the APA violates a statute, the APA provides 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.” 5 U.S.C. § 702. Both “[a]gency 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. In such an instance, 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; ...” § 706. However, “[t]his chapter” does not “apply ... to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” § 701(a). The Corps does not contend that the WRDA facially precludes judicial review. Rather, the Corps contends that the agency actions with which the Foundation is concerned are impliedly “committed to agency discretion by law.” § 701(a)(2). A. “The APA’s ‘generous review provisions must be given a “hospitable” interpretation.’ ” Hondros v. U.S. Civil Service Comm’n, 720 F.2d 278, 293 (3d Cir.1983) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “[0]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Labs., 387 U.S. at 141, 87 S.Ct. 1507 (quoting Rusk v. Cort, 369 U.S. 367, 379, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962)). “In Citizens to Preserve Overton Park, Inc. v. Volpe, ... 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.” Davis Enters., 877 F.2d at 1184-85. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court first found occasion to apply this exception. Heckler considered whether “a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 501 et seq. (APA).” Id. at 823, 105 S.Ct. 1649. The petitioners were prison inmates sentenced to death by lethal injection who asserted that the use of those “drugs for capital punishment violated the Federal Food, Drug, and Cosmetic Act ... and requested] that the FDA take various enforcement actions to prevent these violations.” Id. Nothing that “[t]he Act’s general provision for enforcement, 372, provides only that ‘[t]he Secretary is authorized to conduct examinations and investigations ...’ (emphasis added),” id. at 835, 105 S.Ct. 1649 (emphasis in original), the Supreme Court reasoned the “Act’s enforcement provisions thus commit complete discretion to the Secretary to decide how and when they should be exercised.” Id. The Court emphasized that the “general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” Id. at 838, 105 S.Ct. 1649. Since Heckler, the Supreme Court has extended its holding to other contexts, concluding that other agency decisions were “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), an employee contested his dismissal by the CIA’s Director pursuant to § 102 of the National Security Act. That Act provided that the “ ‘Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States....’” Id. at 594, 108 S.Ct. 2047 (quoting 50 U.S.C. § 403(c) (current version at 50 U.S.C. § 403^4(h))). The Court found “that the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director’s discretion, and that § 701(a)(2) accordingly precludes judicial review of these decisions under the APA.” Id. at 601, 108 S.Ct. 2047. The petitioners in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) sought to appeal the Interstate Commerce Commission’s denial of reconsideration of an earlier administrative decision solely on what the petitioners asserted had been a “material error.” The statute provided that the “ ‘Commission may ... because of material error, new evidence, or substantially changed circumstances ... (B) grant rehearing.’ ” Id. at 277-78, 107 S.Ct. 2360 (quoting 49 U.S.C. § 10327(g) (current version at 49 U.S.C. § 722(c))). The Court reasoned that because there was no “new evidence” or “changed circumstances” alleged to the I.C.C. after it issued the original order, an appeal [of the order denying reconsideration vis-a-vis an appeal from the original order] places before the courts precisely the same substance that could have been brought there by appeal from the original order-but asks them to review it on the strange, one-step-removed basis of whether the agency decision is not only unlawful, but so unlawful that the refusal to reconsider it is an abuse of discretion. Id. at 278-79, 107 S.Ct. 2360. The Supreme Court reasoned that the appeal was, or would become, a mechanism for evading the statute of limitations applicable to a challenge of the original order and decided that the reconsideration denial was therefore “unreviewable” unless one of the two other bases for reconsideration are asserted. Id. at 279-80, 107 S.Ct. 2360. Later, the Supreme Court also held that the “allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 192, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). To date, the Supreme Court has only applied the Heckler exception on an ad hoc basis. Nonetheless, this Court has set forth [an] 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; 2) the action is the product of political, military, economic, or managerial choices that are not readily subject to judicial review; 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. Davis Enters., 811 F.2d at 1185 (citing Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574 (3d Cir.1979)) (citations omitted). In Local 2855, when we first articulated this framework and applied it to hold an agency action unreviewable, a union challenged the Army's decision to contract out certain services to a private contractor. “[0]bserv[ing] that the statute is, for the most part, ‘written in language of permission and discretion,’ ” the panel reasoned that “on the face of the statute there is simply ‘no law to apply’ in determining if [the] decision is correct.” Local 2855, 602 F.2d at 581 (quoting Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979); Overton Park, 401 U.S. at 410, 91 S.Ct. 814). Applying the foregoing principles, the District Court erred in concluding that the WRDA falls within the APA’s exception from reviewability contained in § 701(a)(2) because the WRDA does not contain “law to apply.” Proffitt Found., 175 F.Supp.2d at 767. There can be no doubt that the text of § 306 grants the Corps very broad discretion. However, “[b]road discretionary powers” are merely “[a] predicate to nonreviewability.” Local 2855, 602 F.2d at 578. The “committed to agency discretion exception to judicial review is intended to be ‘applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Id. at 578-79 (quoting Overton Park, 401 U.S. at 410, 91 S.Ct. 814 (internal citation omitted)) (emphasis added). In count one, the Foundation alleges two separate actions by the Corps which purportedly violate the WRDA. We consider, in turn, whether each of these agency actions are subject to judicial review. B. The Foundation first alleges that the Corps failed to take action to include “environmental protection” as one of the “missions” for the Corps both overall and specifically at the Walter Dam. The statute at issue certainly provides law against which we can consider those allegations. While it appears that the broad language of the WRDA means that few actions the Corps takes with respect to any particular water resources project will violate the APA, the WRDA clearly imposes an affirmative obligation to “include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, constructing, operating, and maintaining water resources projects.” 33 U.S.C. § 2316(a). The one common thread running through the Supreme Court and Third Circuit precedents in this area is that where an agency’s assertion that a decision “committed to agency discretion by law” has been upheld, “on the face of the statute there is simply ‘no law to apply’ in determining if [a] decision is correct.” Local 2855, 602 F.2d at 581 (emphasis added). See, e.g., Heckler, 470 U.S. at 835, 105 S.Ct. 1649 (“ ‘[t]he Secretary is authorized to conduct examinations and investigations ... ’ (emphasis added)”) (emphasis in original); Webster, 486 U.S. at 594, 108 S.Ct. 2047 (the “ ‘Director of Central Intelligence may, in his discretion, terminate the employment ... whenever he shall deem such termination necessary ...’”) (emphasis added); Locomotive Eng’rs, 482 U.S. at 277-78, 107 S.Ct. 2360 (the “ ‘Commission may ... grant rehearing’ ”) (emphasis added); cf. Lincoln, 508 U.S. at 185, 113 S.Ct. 2024 (“the Snyder Act authorizes the Service to ‘expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians,’ ” through “lump-sum appropriations”); Local 2855, 602 F.2d at 581 (“we observe that the statute is, for the most part, ‘written in language of permission and discretion.’ ”). Nonetheless, that is not dispositive. Where a statute itself has been permissive or discretionary as to the agency, this Court has even read an agency’s self-imposed practices or regulations into the statute so as to provide a basis for review. See, e.g., Hondros v. U.S. Civil Service Comm’n, 720 F.2d 278, 294 (3d Cir.1983) (the “Service has a regularized method for evaluating its employees” against which the employee’s service could be compared); Davis Enterps., 877 F.2d at 1185 (the “agency regulations or internal policies provide sufficient guidance to make possible federal review under an .abuse of discretion standard ... even absent express statutory limits on agency discretion.”). In contrast, the statute at issue here states that the “Secretary shall include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, constructing, operating, and maintaining water resources projects.” 33 U.S.C. § 2316(a) (emphasis added). Unlike other statutes where courts have found decisions committed to agency discretion by law, this statute is not “written in language of permission and discretion.” See Local 2855, 602 F.2d at 581. The statute requires the consideration of environmental protection when “operating, and maintaining water resources projects.” See § 2316(a). The Corps admits as much in its brief, stating that the “sole ‘command’ identified by Proffitt under this criterion is Section 306 itself.” Corps Br. at 26. Certainly, how the Corps implements this environmental protection mission appears to be left to the vast discretion of the Corps. There is, however, no discretion granted to the Corps on the issue of whether or not they are supposed to include environmental protection as a mission. They are. Section 306 also fails the specific analytical test this Court established in Local 2855, and reaffirmed post -Heckler in Davis Enterprises, for determining whether a given decision is committed to agency discretion by law. While the Corps’ actions under the WRDA appear to meet two of that test’s three factors, they completely fail the last. “[T]he action [by the Foundation] does ... involve charges that the agency ... decision violates a constitutional, statutory, or regulatory command.” See 877 F.2d at 1185 (emphasis added). In sum, the District Court erred in concluding that the WRDA provides no “law to apply” to the Foundation’s first allegation that the Corps failed to include environmental protection as one its overall missions and as one of the specific missions of the Walter Dam. Raymond Proffitt Found., 175 F.Supp.2d at 767. There is law to apply. As the Corps itself effectively conceded at oral argument, where the Corps has “completely abdicated its environmental protection responsibilities,” then “this statute, broad as it is, provides law to apply.” Because the Foundation’s complaint makes such allegations, we are free to review the Corps’ actions to determine its compliance with § 306. C. In addition to its allegations that the Corps is not including environmental protection as part of its “missions,” the Foundation asserts that, by its actions in the actual operation of the Walter Dam, the “Corps is not fulfilling, or even attempting to fulfill its mission of environmental protection.” Nonetheless, just because the Foundation’s first allegation of unlawful agency action under § 306 is amenable to judicial review, it does not necessarily follow that all of its allegations pursuant to that statute are subject to judicial review. In Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), the Supreme Court established that while agency action pursuant to a general Congressional authorization may be amenable to judicial review in a broad sense, certain specific “categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion’” may not be reviewable within the context of that broader mandate. Lincoln addressed a challenge by an Indian tribe to certain specific expenditures of the Indian Health Service within the context of a lump-sum appropriation from Congress. That appropriation “authorize[d] the Service to ‘expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians,’ for the ‘relief of distress and conservation of health.’ ” Id. at 185, 113 S.Ct. 2024 (quoting 25 U.S.C. § 13). Generally, an aggrieved party can bring an action to challenge an agency’s expenditures as inconsistent with the “permissible statutory objectives” for which Congress appropriated the funds. See id. at 193, 113 S.Ct. 2024; see also Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (considering whether the Bureau of Indian Affair’s implementation of its general assistance program was consistent with Congressional intent in appropriating the program funds). Nonetheless, Lincoln stands for the principle that once that initial level of judicial review is passed, the specific execution by the agency to meet those objectives may still be left entirely within its discretion. The Lincoln Court held that the APA precluded judicial review of the specific allegations of those plaintiffs, reasoning that the “allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion. After all, the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way.” Lincoln, 508 U.S. at 192, 113 S.Ct. 2024. “[A]s long as the agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives, § 701(a)(2) gives the courts no leave to intrude. ‘[T]o [that] extent,’ the decision to allocate funds ‘is committed to agency discretion by law.’ ” Id. at 193 (quoting 5 U.S.C. § 701(a)(2)). As part of its allegations that the specific operational policies of the Corps violate § 306, the Foundation apparently reads § 306 to prohibit the Corps from implementing at each and every water resources project under its administration any policies “causing harm to the aquatic life.” Foundation Br. at 9. However, the WRDA states only that the “Secretary shall include environmental protection as one of the primary missions of the Corps ... [at] water resources projects.” 33 U.S.C. § 2316(a) (emphasis added). Congress did not clearly instruct the agency to “implement” that mission at any specific water resources project, let alone suggest how it should do so. Because § 306 provides “no objective standards” that “dictate how the Agency must implement this mission or how it must balance [environmental protection] with its other responsibilities,” the Corps argues that § 306 “properly committed to the Corps’ discretion” any judgments regarding the implementation of that mission. We need not conclusively decide the proper interpretation of § 306 to determine whether the exception to review contained in APA § 701(a)(2) applies to these allegations. Before us now are not the merits of the Foundation’s allegations, but whether judicial review of these specific actions is precluded because “on the face of the statute there is simply ‘no law to apply.’” Local 2855, 602 F.2d at 581. Courts cannot preclude judicial review simply because a party appears likely to lose on the merits. That would put the cart before the horse. Rather, in determining whether judicial review is available in the first instance, we look for “‘clear and convincing evidence’ of a contrary legislative intent” before we will “restrict access to judicial review.” Abbott Labs., 387 U.S. at 141, 87 S.Ct. 1507 (quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962)). We will now consider § 306 only that far. Compared to some of the more affirmative instructions Congress has given the Secretary and the Corps in later sections of the WRDA, Congress’ use of the phrase “include ... as one of the primary missions” in § 306 if that phrase really is to mean “implement to the fullest at every” water resources project, as the Foundation suggests, strikes us as peculiar. See Whitman v. Am. Trucking Assoc., 531 U.S. 457, 466, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“Words ... are given content, however, by their surroundings”). It would seem more than peculiar, however, to suggest that the Corps can simply develop a generic environmental mission statement and proceed to completely ignore it at every water resources project it administers. But see Nat’l Treasury Employees Union v. Horner, 854 F.2d 490, 495 (D.C.Cir.1988) (Congress may be “indifferent to the choices an agency makes, within a sphere of action delegated to it, and ... reserve oversight exclusively to itself by precluding judicial review”). Granted, requiring the Corps to “include” an environmental protection “mission” does not seem to demand much of the Corps. Arguably then, it may be contrary to Congressional intent for the judiciary to examine whether anything the Corps does, beyond the mere consideration of environmental protection as part of its overall mission, violates this statute. See Lincoln, 508 U.S. at 194, 113 S.Ct. 2024 (“The reallocation of agency resources to assist handicapped Indian children nationwide clearly falls within the Service’s statutory mandate” generally, but the specific “decision to terminate the Program [at issue] was committed to the Service’s discretion” and unreviewable.). We note, however, that Congress did not simply call for the consideration of environmental protection; it directed that the environmental protection mission be “primary,” and directed its inclusion specifically in the context of the Corps’ “planning, designing, constructing, operating, and maintaining” of its “water resources projects.” § 2316. This suggests that actual application of that mission in those specific contexts may well have been contemplated. Overall, we do not see clear and convincing evidence that the Foundation’s interpretation of § 306 — that the Corps shall seek to implement environmental protection when operating its water resources projects — is contrary to legislative intent. Therefore, for purposes of determining whether judicial review is available for the allegation that the Corps’ operational policy violates § 306, the statute (if ultimately given that interpretation) would give us at least some law to apply. “No one doubts that [the Corps] must have ‘very broad discretion’ in the administration of the [project]. But even very broad discretion is not the same as unreviewable discretion.” Nat’l Treasury Employees Union, 854 F.2d at 495. Nonetheless, having determined that these allegations are amenable to judicial review based on the colorable interpretation of § 306 that the Foundation posits, the merits of whether the statute actually requires or prohibits the specific actions the Foundation alleges or whether the agency is abusing any discretion Congress has granted it is an entirely separate matter. III. While the District Court erred in holding that the exception to reviewability contained in § 701 applies to the Foundation’s claims, the District Court acknowledged that “to the extent that plaintiffs claim that the Corps as a whole has failed to take any action to implement § 2316, there is evidence of at least a minimal response by the Corps.” Raymond Proffitt Found., 175 F.Supp.2d at 767. It believed that this would be “enough to satisfy the minimum action required of the agency under the APA.” Id. at 768. We agree. The WRDA demands the inclusion of “environmental protection as one of the primary missions of the Corps of Engineers[’] ... water resources projects.” 33 U.S.C. § 2316 (emphasis added). Stated another way, when the Corps of Engineers is developing and operating its various water resources projects, one of the primary tasks the Corps is to include is environmental protection. Congress has, however, left the meaning of the phrase “environmental protection” undefined for purposes of § 306. This leaves the Corps with discretion to determine what “environmental protection” is appropriate in a given context. That conclusion is reinforced by the fact that § 306 does not itself purport to place any specific, new requirements on the Corps, but expressly recognizes that “[n]othing in this section affects — (1) existing Corps of Engineers’ authorities, including its authorities with respect to navigation and flood control ...” § 2316(b). Under the WRDA, “the discretion Congress gave to” the Corps “is not unfettered.” Nat’l Treasury Employees Union, 854 F.2d at 495. In this situation, however, where Congress is not indifferent to the choices an agency makes, within a sphere of action delegated to it, and does not reserve oversight exclusively to itself by precluding judicial review, then we presume the legislature expected the court to review those choices with a degree of scrutiny calibrated to the issues involved. Id. (emphasis added). Similar to the Snyder Act at issue in the Supreme Court’s decision in Lincoln, the WRDA speaks only of “water resources projects,” plural, in general terms, and does not specifically reference or otherwise elevate any particular projects or class of projects for more detailed consideration. Cf. Lincoln, 508 U.S. at 193-94, 113 S.Ct. 2024 (the “appropriations Acts for the relevant period do not so much as mention the Program, and both the Snyder and the Improvement Act likewise speak about Indian health only in general terms”). Lincoln is not, of course, specifically controlling. Nonetheless, a fortiori, a limited and very deferential review of the Corps’ actions in the absence of some Congressional intent to the contrary is appropriate here. “Courts are ... competent to determine whether an agency has exercised its discretion — broad though it be — in a manner arbitrary and capricious.” Nat’l Treasury Employees Union, 854 F.2d at 496. Nonetheless, “we recognize that our scope of review of the [agency’s] function under [the statute] is severely limited because the statute ... vest[s] rather broad discretion in the [agency].” See Chong v. Director, U.S. Information Agency, 821 F.2d 171, 176 (3d Cir.1987). Applying these principles to the record before us and the specific actions that the Foundation argues are in violation of the WRDA, the Corps did not unlawfully withhold agency action or otherwise act not in accordance with law. First, the Corps has taken steps to include environmental protection as one of the missions of both the Corps, overall, and the Walter Dam specifically. In 1996, the Corps published its current environmental restoration and protection policies in its digest of water resources policies and authorities. These policies were “significantly revised to reflect the increased emphasis being placed upon ecosystem restoration and protection within the Corps of Engineers (Corps) Civil Works Program. In particular,” the policy was a response to “the programs and policies established by recent Water Resources Development Acts.” App. 48. The Corps’ digest specifically states its twenty-seven page “guidance on ecosystem restoration is believed to account for the requirements of’ the WRDA of 1990. Id. at 53. As part of that policy, the Corps acknowledges that, under the Endangered Species Act of 1973, if an “operational activity will negatively impact an endangered or threatened species or its critical habitat,” the Corps “will initiate the preparation of a biological opinion by the USFWS [United States Fish & Wildlife Service] and/or the NMS [National Maritime Service].” Id. at 60. The Corps acknowledges its “responsibilities under the CWA [Clean Water Act].” Id. The policy even states the circumstances under which the Corps will “provide mitigation for adverse impacts on the environment, including fish and wildlife resources.” Id. At the Walter Dam in particular, the 1994 F.E. Walter Reservoir Water Control Manual describes how the Corps will “include environmental protection ... in ... operating, and maintaining [the] water resources project[ ]” specifically at issue here. See 33 U.S.C. § 2316(a). While the “primary objective of the F.E. Walter Reservoir Project is flood control[, o]ther objectives are lake and downstream recreation (whitewater) and drought emergency water supply/waier quality storage.” Supp.App. 64 (emphasis added). Furthermore, the Corps long ago conducted an environmental assessment for the operation and maintenance of the Dam. Nonetheless, at this particular project, the Corps believes “[w]ater control management needs must take precedence over fishery accommodation but the attempt should be made to adjust procedures for fishery purposes whenever possible.” Id. at 80. The record reflects that the Corps has included environmental protection in both its overall operation of its water resources projects and, in particular, at the Walter Dam. The Corps has decided, however, to continue to emphasize flood control as the primary objective of this particular facility, something the WRDA certainly permits it to do. See 33 U.S.C. § 2316(b). While we have no reason to consider whether the Corps actions are “a comprehensive response to the enactment of § 2316,” we agree with the District Court that they are “enough to satisfy the minimum action required of the agency under the APA.” Raymond Proffitt Found., 175 F.Supp.2d at 768. We also conclude that the Corps has not violated § 306 of the WRDA by refusing to operate the Walter Dam in the specific manner proposed by the Foundation. Although there is no longer any claim by the Foundation that the Corps is failing to comply with any federal environmental protection statute, the Foundation asserts that the Corps “causes harm to the environment” by failing to further alter the river’s natural flows. However, absent more particularized language from Com-gress or the agency itself that § 306 demands more, “our scope of review ... is severely limited because the statute ... vest[s] rather broad discretion in the [agency].” See Chong, 821 F.2d at 176. Without dwelling on the question of whether the Foundation’s proposed scheme to further alter the Lehigh River’s natural flows would, itself, constitute harm to the environment, as some would no doubt argue, suffice it to say insofar as § 306 of the WRDA is concerned, Congress has granted vast discretion to the Corps in making this determination. The record does not contain sufficient evidence to show that the Corps’ decision to generally reproduce in the Lehigh River the flows that nature herself would produce, as opposed to “improving” on nature, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or resulted in “agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. IV. We will affirm, but for reasons differing from those offered by the District Court. The WRDA directs that “environmental protection” be included as one of the “primary missions” of the Corps at its “water resources projects.” There is nothing discretionary about this command. The District Court erred in concluding there was no “law to apply” in the WRDA and that the exception to reviewability in 5 U.S.C. § 701(a)(2) precludes judicial review of the actions the Foundation alleges are unlawful. Nonetheless, by failing to give the Corps any particular instructions on how this environmental protection mission is to be included in the Corps’ activities, Congress has vested broad discretion in the Corps to determine where, when, and how much of the WRDA’s environmental protection mission should be implemented at a given water resources project. The Corps has demonstrated that it is making environmental protection one of its primary missions. Furthermore, the Corps has specifically taken actions to facilitate the protection of the environment at the Walter Dam. Therefore, considering the broad discretion § 306 of the WRDA grants the Corps and the correspondingly deferential review that discretion requires of the judiciary, we will affirm the judgment of the District Court. . The Corps' policy is not to fully replicate in the river below the same flow that would result if the dam had never been built. Obviously, as a flood control project, the outflows from the Walter Dam reservoir will be constrained when necessary to prevent downstream flooding. Furthermore, in accordance with the project's secondary recreational purpose, the Corps’ policy is to raise the reservoir’s level 0.7%, five times a year, to facilitate whitewater rafting events on the river below. The Foundation does not assert that either of these practices are unlawful. . The District Court also granted summary judgment on the Foundation's other eleven claims. Worth noting is that the District Court dismissed the claims that the Corps was violating the federal Clean Water Act ("CWA”) and the National Environmental Policy Act ("NEPA”) at the Walter Dam. As noted infra, the Foundation did not appeal from the dismissal of those claims. . Nonetheless, the WRDA provides that "[n]othing in this section affects — (1) existing Corps of Engineers’ authorities, including its authorities with respect to navigation and flood control ...” 33 U.S.C. § 2316(b). . We note that, in actuality, the text of § 306 does not facially impose any duty on the Corps of Engineers. See 33 U.S.C. § 2316(a) ("The Secretary [of the Army] shall include ...”); see also 33 U.S.C. § 2201 (defining the "Secretary”). The Secretary of the Army was not made a defendant in this suit. Nonetheless, the parties, as well as the District Court, all appear to have assumed that § 306 also imposes a direct duty on the Corps of Engineers, disputing only whether the execution of that duty is "committed to agency discretion bylaw.” 5 U.S.C. § 701(a)(2). Therefore, we assume, without deciding, that § 306 applies equally to the Corps. . Neither the Corps nor the Foundation cite to a case where a "shall” statute such as the WRDA has been held to grant unreviewable discretion to an agency. . This assumes, of course, that a plaintiff meets all jurisdictional and administrative prerequisites for bringing such a claim. . See, e.g., WRDA of 1990 § 307(b), 33 U.S.C. § 2317(b) (“The project under this subsection shall be carried out to improve the quality of effluent discharged from publicly owned treatment works ... ”); § 307(d) (establishing a wetland enhancement goal and giving "Factors to consider”); § 313(a), (c), 33 U.S.C. § 2320(a), (c) ("the Secretary shall consider the impact of the project on existing and future recreational and commercial uses ...” and, in doing so, "take such actions as may be necessary to restore such recreational use ...”). . We previously considered § 306’s interpretation only to the extent necessary to determine if judicial review of the Corps’ actions was appropriate. However, because the parties did not brief the actual merits of their proffered interpretations, we will assume without deciding for purposes of this analysis that § 306 does require the Corps to implement its environmental protection mission once "include[d].” 33 U.S.C. § 2316. . As noted, supra, the District Court granted summary judgment to the Corps on the Foundation's claims that the Corps was violating the CWA and NEPA. The Foundation did not appeal from those judgments.

Hells Canyon Alliance v. United States Forest Service

McKEOWN, Circuit Judge: This appeal brings to mind the maxim that you can please all of the people some of the time, and some of the people all of the time, but you can’t please all of the people all of the time. At issue are the regulations for motorized water craft adopted by the United States Forest Service (“Forest Service”) for portions of the Snake River within the diverse and spec-taeular area known as the Hells Canyon National Recreation Area. Balancing the competing and often conflicting interests of motorized water craft users, including jetboaters, and non-motorized water craft users, such as rafters and kayakers, is no easy task. The legislative framework contemplates not only that such craft are legitimate recreational uses in Hells Canyon but that the area should be preserved and conserved for the public benefit. In 1998, after a lengthy environmental impact process and extensive public comment, the Forest Service implemented a recreation management plan that included a “non-motorized window” — a three-day period every other week throughout the primary season during which motorized water craft would be barred from part of the “wild” section of the river. The Hells Canyon Preservation Council (the “Council”), representing the non-motorized craft users or “floaters,” and the Hells Canyon Alliance (the “Alliance”), representing primarily the motorized boaters, challenged the plan under a variety of statutes. We affirm the district court’s grant of summary judgment upholding the plan. BACKGROUND Hells Canyon is the deepest river canyon in North America; through it runs the Snake River, which divides Idaho and Oregon as it flows northward. In 1975, Congress established the Hells Canyon National Recreation Area (the “Hells Canyon NRA”) to preserve this area, designating portions of the Snake River as “wild” and “scenic” and designating certain adjacent areas as wilderness. Hells Canyon National Recreation Area Act (the “Hells Canyon Act” or “the Act”), Pub.L. 94-199, 89 Stat. 1117 (1975) (codified at 16 U.S.C. §§ 460gg-460gg-13). Visitor use has soared since the Hells Canyon NRA was established, increasing 147% during the primary (summer) season from 1979-1991. Motorboat use during the primary season has grown at over 400%, from about 300 launches in 1979 to more than 1500 in 1994. Use of non-motorized water craft has also grown, from less than 100 float trips in 1973 to over 450 in 1992. Use restrictions for non-motorized water craft have been in place since 1977, but motorized use remained essentially unregulated until the Forest Service in 1998 implemented the Wild and Scenic Snake River Recreation Management Plan (“Recreation Management Plan”) prepared in 1994. The Recreation Management Plan, developed in response to litigation challenging the agency’s failure to regulate motorized water craft, has a lengthy and complex history. In 1993, after issuing a notice of intent to prepare such a plan and an environmental impact statement for the river corridor, the agency released a draft environmental impact statement (“EIS”) identifying eight outstandingly remarkable values (“values,” or “ORVs”) in the corridor — -scenic, recreational, geologic, fish, wildlife, cultural, botanic/vegetative, and ecological values — and presenting six alternatives for consideration. Most of these alternatives restricted motorized use levels; two also contemplated the elimination of motorized water craft from the wild part of the river. In response to comments on the draft EIS, Forest Supervisor R.M. Richmond asked the agency to develop a seventh alternative. ‘Alternative G,” denominated the “preferred alternative” in the final environmental impact statement (“FEIS”) issued in July 1994, included not only motorized use-level restrictions - but also a non-motorized window in part of the “wild” river for three-day periods from Monday-Wednesday every other week in July and August for a total of 24 motor-free days. In October 1994, Richmond issued a Record of Decision (“ROD”) selecting Alternative G, with certain modifications we need not enumerate here. Implementation of the Recreation Management Plan was stayed pending the resolution of numerous administrative appeals that followed. On July 19, 1995, Deputy Regional Forester Richard Ferraro partially affirmed and partially reversed the ROD. He affirmed “the programmatic decision to provide a non-motorized window to achieve more primitive conditions in the wild river segment” but delayed implementation of the Recreation Management Plan pending a new assessment of commercial use addressing, among other issues, the “specifics of timing and duration of a non-motorized window.” Ferraro also directed the agency to conduct a new analysis of access to private lands. In December 1995, the Forest Service gave notice of its intent to analyze the issues on remand in an environmental assessment (“EA”) regarding the economic effects of the Recreation Management Plan’s use limitations on individual commercial river permits (the “Outfitter EA”). One month later, in January 1996, the Council filed suit in the District of Oregon, claiming that the agency had unduly delayed implementation of the Recreation Management Plan and had failed to adequately regulate motorized river craft in the Hells Canyon. See Hells Canyon Preservation Council v. Williams, No. CV 96-68-RE (D. Or. 1996). In April 1996, Judge Redden denied the Council’s request for a preliminary injunction ordering the agency to implement the Recreation Management Plan for the 1996 summer season but indicated that: 1) he would retain jurisdiction over the case; 2) the agency’s failure to issue the EA promptly could prove the Council’s case of delay; and 3) the agency should anticipate implementing the plan for the 1997 summer season. By April 1996, agency personnel began to have second thoughts about the wisdom of the window and consequently evaluated options, including its elimination. The Outfitter EA, released in June 1996, contained three alternatives: (1) a no-action alternative, which was windowless, and had no restrictions on motorized water craft; (2) an alternative mirroring Alternative G; and (3) and a new, preferred Alternative C that modified the window by limiting it to 21 days. Following public comment, agency personnel, apparently concerned by opposition to the window, actively researched ways to remove it but ultimately did not alter the options in the EA. Richmond issued a Decision Notice (“DN”) in September 1996, selecting Alternative C and declaring a Finding of No Significant Impact, which obviated any need for a full-blown EIS. In transmitting the numerous administrative appeals that resulted from this decision, Richmond wrote Ferraro a letter, dated November 25, 1996, in which he stated that he “could not eliminate the non-motorized period for the commercial outfitters without going through another NEPA process ... because you upheld the non-motorized period ... in your July 1995 decision.” Explaining that the time necessary to complete such a process “would preclude implementation of the Plan during the 1997 primary use season,” Richmond concluded that he was “unable to resolve the non-motorized issue and also meet Judge Redden’s expectations for implementing the Plan [during the 1997 season].” A month later, on December 23, 1996, Judge Redden dismissed the Williams litigation, noting that the administrative appeals were still ongoing. Referencing Richmond’s November 25 letter, he also expressed concern “about the chilling effect of my earlier rulings.” Another two months later, but still during the administrative appeals process, Ferraro permitted Richmond to review his analysis of the non-motorized window issue. Richmond responded with a letter dated March 17, 1997, and an accompanying document titled “Non-Motorized Period Review Rationale;” in both documents, he concluded that his review revealed no new or significant information establishing a need to eliminate the window and that the window should remain a component of the Recreation Management Plan. Richmond’s decision was affirmed. Restrictions on motorized use levels began in the 1997 summer season, but implementation of the window itself was delayed by Richmond pending completion of the Private Lands EA. This prompted the Council to file suit again, Hells Canyon Preservation Council v. U.S. Forest Serv., No. CV 97-481-RE (D.Or.1997), this time for an order implementing the window during the 1997 season. The district court denied the Council’s request for a preliminary injunction and later dismissed the suit without prejudice to give the agency time to finish the Private Lands EA. Prior to release of the Private Lands EA in March 1998, the new Forest Supervisor, Karyn Wood, announced that full implementation of the Recreation Management Plan would occur in the summer of 1998, leading the Alliance, which opposes implementation of the window, to file suit in the District of Idaho. The Council also sued, again in the District of Oregon, objecting to the Recreation Management Plan on several grounds. The cases were consolidated in the District of Oregon under Judge Redden, the same judge who handled the Council’s 1996 and 1997 lawsuits. Faced with motions for summary judgment from all parties, Judge Redden entered judgment in favor of the Forest Service, concluding that the “voluminous record supports [the] contention that it collected sufficient data and adequately supported its plan.” It is this judgment that the Alliance and the Council both appeal, on different grounds. STATUTORY FRAMEWORK The Hells Canyon Act established the Hells Canyon NRA with the following purposes: to assure that the natural beauty and historical and archaeological values of the Hells Canyon area and the seventy-one mile segment of the Snake River between Hells Canyon Dam and the Oregon-Washington border, together with portions of certain of its tributaries and adjacent lands, are preserved for this and future generations, and [to assure] that the recreational and ecological values and public enjoyment of the area are thereby enhanced.... Hells Canyon Act § 1(a), 16 U.S.C. § 460gg(a). Included in the Hells Canyon NRA was the Hells Canyon Wilderness, as well as 71 miles of the Snake River. Hells Canyon Act §§ l(a)-(b) & 2(a), 16 U.S.C. § 460gg(a), §§ 460gg(b) & 460gg-1(a). Of these 71 miles, Congress designated some 31.5 miles as “wild” and 36 miles as “scenic” under the Wild and Scenic Rivers Act (“WSRA”), Pub.L. 90-542, 82 Stat. 906 (1968), 16 U.S.C. §§ 1271-87; Hells Canyon Act § 3(a) (amending the WSRA, 16 U.S.C. § 1274, to include these portions of the Snake River). The Act directs the Forest Service to promulgate “such rules and regulations as [it] deems necessary to accomplish the purposes of this Act,” including provisions “for the control of the use and number of motorized and nonmotorized river craft: Provided, That the use of such craft is hereby recognized as a valid use of the Snake River within the recreation area.” Hells Canyon Act § 10 & 10(d), 16 U.S.C. § 460gg-7 & 7(d). Except as otherwise provided in §§ 2-3, and subject to § 10, the Act provides for administration of the Hells Canyon NRA “in accordance with the laws, rules, and regulations applicable to the national forests for public outdoor recreation in a manner compatible with ... objectives” such as: (2) conservation of scenic, wilderness, cultural, scientific, and other values contributing to the public benefit; (3) preservation, especially in the area generally known as Hells Canyon, of all features and peculiarities believed to be biologically unique including, but not limited to, rare and endemic plant species, rare combinations of aquatic, terrestrial, and atmospheric habitats, and the rare combinations of outstanding and diverse ecosystems and parts of ecosystems associated therewith; [and] (4) protection and maintenance of fish and wildlife habitat[.] Hells Canyon Act § 7, 16 U.S.C. § 460gg-4. The WSRA instituted a “national wild and scenic rivers system” in order to implement a national policy, 16 U.S.C. § 1271, that “certain selected rivers ... which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values ... be preserved in free-flowing condition, and ... be protected for the benefit and enjoyment of future generations.” 16 U.S.C. § 1271. To achieve this end, the WSRA requires that a river designated as wild and scenic be managed “in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281(a). “[P]rimary emphasis” is to be given to “protecting ... esthetic, scenic, historic, archaeological, and scientific features.” Id. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an EIS is required for all “major Federal actions significantly affecting the quality of the human environment,” id. § 4332(2)(C), to ensure that agencies possess and consider “detailed information concerning significant environmental impacts” and to guarantee “that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA’s implementing regulations therefore require that agencies “insure the professional integrity, including the scientific integrity, of the discussions and analyses” in EISs, identifying any methodologies used and sources relied on. 40 C.F.R. § 1502.24. Agencies must “[Vigorously explore and objectively evaluate all reasonable alternatives.” Id. § 1502.14. STANDARD OF REVIEW We review a grant of summary judgment de novo, see Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998), and may affirm on any ground supported by the record, see Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 n. 17 (9th Cir.1995). Review of agency action under the Hells Canyon Act, the WSRA, and NEPA is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Under the APA, a decision may be set aside only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 573 (9th Cir.1998) (quoting 5 U.S.C. § 706(2)(A)). In determining whether an agency’s decision is arbitrary and capricious, 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. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one.” Morongo Band, 161 F.3d at 573 (citation omitted). Accordingly, we “may not substitute [our] judgment for that of the agency” and “must simply ensure that the agency has adequately considered and disclosed the environmental impact of its actions,” id., bearing in mind that NEPA exists to ensure a process, not particular substantive results, see id. at 575. In assessing the adequacy of an EIS, we employ a “rule of reason” test to determine whether the EIS contains a “reasonably thorough discussion of the significant aspects of probable environmental consequences.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998). Under this standard, our task is to ensure that the Forest Service took a “hard look” at these consequences. Id. We also review the sufficiency of an agency’s methodology under a rule of reason. See Association of Public Customers v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir.1997). DISCUSSION Although they seek different outcomes from the Forest Service process, both the Council and the Alliance attack the agency’s decision-making process from several, sometimes overlapping angles. A. The Council’s Appeal Each of the Council’s challenges pertain to the ROD and the FEIS. In short, the Council argues that the Forest Service has not gone far enough in regulating the areas and levels of motorized water craft use. 1. Substantive statutory challenges The Council argues that the Forest Service’s motorized use restrictions are incompatible with the WSRA and the Hells Canyon Act. According to the Council, the agency has violated the WSRA by allowing motorized use in areas and at levels that have degraded the Snake River’s outstandingly remarkable values, and it has violated the Hells Canyon Act by selecting restrictions incompatible with that Act’s mandate to preserve and conserve the scenic and biological resources of the Area. As analysis of the relevant provisions requires cross-referencing these interrelated statutes, we discuss the Council’s substantive statutory challenges together in this section. As the Council points out, the WSRA requires that a river designated as wild and scenic be managed “in such manner as to protect and enhance the values which caused it to be included in said system.” 16 U.S.C. § 1281(a). Lacking a statutory definition of “protect” or “enhance,” we give these terms their common meaning. The mandate to “protect and enhance” does not, however, lead inexorably to the conclusion that permitting motorized use on both the wild and scenic portions of the river violates the statute. Significantly, the WSRA’s “protect and enhance” language does not stand alone. Congress instructed that designated rivers be managed “without, insofar as is consistent [with the values motivating designation of the river], limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281(a). Congress thus recognized that other uses could “interfere with public use and enjoyment” but that not all such uses were to be prohibited. Only those uses that, consistent with the protection and enhancement of values, “substantially interfere” with enjoyment and use of the values at issue — the values identified in the FEIS — are to be limited. The Forest Service’s decisions with respect to what uses are inconsistent with protection and enhancement and “substantially interfere” with the river corridor’s values must be accorded substantial deference given the standard of review as well as the Act’s mandate that the agency “promulgate ... such rules and regulations as [it] deems necessary to accomplish the purposes of this Act ... including] ... provision for the control of the use and number of motorized river craft.” Hells Canyon Act § 10 & 10(d). The purposes of the Act parallel the WSRA mandate to “protect” and “enhance” the values for which a river was chosen; the Act directs the agency to administer the recreation area “in a manner compatible with,” inter alia, “conservation of scenic, wilderness, ... and other values,” “preservation ... of biologically unique [features],” and “protection and maintenance of ... habitat.” Id. § 7(2-4). Review of the FEIS indicates that the Forest Service took a “hard look” at the environmental impacts of motorized water craft on the various values of the Snake River. The agency devoted 145 pages of the FEIS to exploring the possible environmental consequences of seven alternatives on each of the Snake’s eight outstandingly remarkable values. Within the recreation value alone, the agency analyzed, over some 70 pages, numerous “recreation opportunity spectrum” (“ROS”) settings — categories developed by agency researchers to allocate recreation uses— and then also analyzed each option’s ability “to meet a great variety of visitor expectations by providing many different users with the opportunity to achieve their desired recreation experience.” In page after page, the agency specifically identified and analyzed the possible effects of motorized water craft on each value and ROS setting. Although one may disagree with its conclusions, we cannot conclude that the agency failed in its duty to take the requisite “hard look.” To take just one example, consider the manner in which the Forest Service addressed the fisheries value. With respect to salmon, acknowledging that jetboats might pose risks to fall ehinook redds, the Forest Service conducted its own study (which turned out to be inconclusive) on the effect of jetboat wakes on salmon eggs, requested input from other agencies, and discussed several other studies (including the one cited by the Council). It ultimately concluded that although potential for jetboats to disturb a Chinook redd site was “moderate,” there was only a “low probability” of direct and indirect effects on the fisheries value. Although the Council has identified several examples from the FEIS raising the specter of interference with the values for which the Snake River was included in the wild and scenic river system, it has not shown that the agency’s limitations on motorized use are arbitrary and capricious, or even that the extent to which the agency allows motorized use of the river in fact substantially interferes with the river’s outstandingly remarkable values. For example, although the agency acknowledges that motorized river craft are partly responsible for a “reduction in the unique waterway sound of the Scenic ORV,” the mere existence of some decline in scenic value does not establish that motorized use substantially interferes with this value, nor does it show that the agency’s chosen limitations in striking a balance between the recreation value — which expressly recognizes the legitimacy of motorized boating — and the scenic value are arbitrary and capricious or fail to protect and enhance the river’s value. Nor do the agency’s motorized use restrictions violate the directive in § 7 of the Act to administer the Hells Canyon NRA “in a manner compatible with” conservation of various values, preservation of biologically unique features, and protection and maintenance of habitat (collectively, the “conservation objectives”). In assessing this claim, we bear in mind that § 7 is subject both to § 3 of the Act, which directs the agency to administer the wild and scenic Snake River in accordance with the WSRA, and to § 10 of the Act, which expressly recognizes that use of motorized water craft is a valid use of the Snake. We also bear in mind that the Act established a recreation area, not a pure refuge or wilderness area. Recreation is not only one of the values for which the Snake River was included in the wild and scenic river system, but it is also specifically identified in § 1(a) of the Act as a value to be enhanced. To the extent the Council intimates that jetboats should be barred at least on the “wild” river, this argument is foreclosed by the plain language of the Act. Hells Canyon Act § 3(a), which amends the WSRA to add the portions of the Snake River at issue and directs that the wild and scenic parts be administered in accordance with the WSRA, see id. § 3(b), recognizes the use of motorized water craft as a “valid use” of the river. Id. § 10(d). Congress also vested broad discretion in the agency to provide “for the control of the use and number of motorized ... river craft” on the Snake. Id. Accordingly, the fact that most rivers designated under the WSRA are managed with severe restrictions on jetboat use — if such use is allowed at all— is neither dispositive nor particularly instructive, given the clear congressional mandate with respect to motorized boating on the Snake River. Once again, review of the FEIS reveals that the Forest Service’s restrictions are neither arbitrary nor capricious. The agency’s thorough discussion, as noted above, of the environmental impact of motorized water craft on the various values and ROS settings for the Snake River shows that it took the requisite “hard look.” The examples the Council cites as evidence that the agency failed to conserve the Hells Canyon NRA — reduction in the waterway sounds of the scenic ORV, reduction of the recreation experience for wilderness users, and displacement of wildlife in the event habitat is disturbed by recreation use — do not reveal arbitrary and capricious decision-making. Indeed, the FEIS identified each of these effects as probable consequences that could not be avoided under any of the alternatives, including those that restricted motorized use more significantly in number, duration, and area. Notably, none of these effects was tied exclusively or even primarily to motorized water craft — the ROD specifically recognized that the trend away from a primitive or semi-primitive environment was associated with both motorized and non-motorized river craft, and the FEIS identified aircraft and the sounds generated by the presence of other recreationists as other causes of probable adverse effects. Under the circumstances here, we conclude that the Forest Service did not act arbitrarily and. capriciously in determining that its restrictions were compatible with the Act’s conservation objectives. 2. Compliance with management directives in Land Resources Management Plan We also reject the claim that the Recreation Management Plan does not comply with management directives in the Land Resources Management Plan for the Wallowa-Whitman National Forest (“Forest Plan”). For the Snake River area, that plan states that the “primary emphasis is on maintaining the recreation experiences available at the time the area was established.” The Council contends that the Recreation Management Plan violates this directive because it allows human activities that degrade the primitive and semi-primitive settings that existed in 1975, when the river was designated wild and scenic. The Council interprets the phrase “maintaining the recreation experiences available at the time the area was established” (emphasis added) to refer to use levels in 1975, but this phrase is also susceptible to a different, common sense interpretation — namely, to maintaining the types of recreational experiences available in 1975, which included motorized boating. As such, we cannot impose the Council’s restrictive interpretation of this language on the Forest Service. Nothing in the Forest Plan or the statute requires any particular numeric level or ratio of motorized and non-motorized uses. Because the plan language is susceptible to more than one reasonable interpretation, we defer to the agency’s interpretation. See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (Secretary of Labor’s interpretation of his own regulations is controlling unless “plainly erroneous or inconsistent with the regulation”) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). 3. Exclusion of alternative analyzing jetboat use at pre-1980 levels Finally, we also reject the claim that the Forest Service violated NEPA by failing to include a reasonable. range of alternatives. The Council attacks the agency’s reliance on 1980s use levels and contends that it should have considered setting motorized use at the 1970s levels existing when the Hells Canyon Act was passed. The argument that the agency improperly relied on 1980s use levels to limit the range of alternatives in the FEIS misses the mark. In this regard, the Council quotes Richmond’s statement that he “asked the planning team to focus on the period between the mid to late 1980s. I believe the use levels occurring during this period were generally acceptable to most users as reflected in the results of the University of Idaho’s Visitor Profile and Recreation Use Study which analyzed the perceptions of visitors during the summer of 1988.” This comment, however, was targeted to Alternative G, an option developed for the FEIS as a result of public comment on the draft EIS. The Forest Service did not rely on the study in selecting the range of alternatives to be considered; rather, it relied on the study only to set use levels for the new Alternative G and carried forward to the FEIS each of the original alternatives from the draft EIS (including Alternative C, an option that established use levels lower than those of Alternative G). The Council’s claim that the agency erred in excluding a 1970s use level alternative presents a closer question but is one that ultimately fails in light of the standard of review. Not only did the Forest Service consider a reasonable range of alternatives but inclusion of the low levels for the 1970s would have been unrealistic in light of the statutorily mandated objectives. The Forest Service had a duty to “[s]tudy, develop, and describe appropriate alternatives to recommended courses of action,” 42 U.S.C. § 4332(E), to “[u]se the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment,” 40 C.F.R. § 1500.2(e), and to “[Vigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). The Council argues that a 1970s use-level alternative was needed to provide a “yardstick to measure impacts to the [Outstanding Remarkable Values] and conservation objectives resulting from the high levels of jetboat use in the 1980s and early 1990s.” Given the broad range of alternatives considered by the agency, we cannot, however, say that it violated the rule of reason. See Northwest Env’l Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir.1997) (“We review an agency’s range of alternatives under a ‘rule of reason’ standard that ‘requires an agency to set forth only those alternatives necessary to permit a reasoned choice.’ ”) (citation omitted). The Forest Service’s seven alternatives, as set forth in the FEIS after extensive public comment, provided a range of alternatives sufficient to permit a reasoned choice. See Resources Ltd., 35 F.3d at 1307 (“[a]n agency’s consideration of alternatives is adequate ‘if it considers an appropriate range of alternatives, even if it does not consider every available alternative’ ”). A 1970s alternative would have set levels too low to satisfy the agency’s reasonable goal of striking an appropriate balance between recreational and ecological values; as such, the Forest Service had no obligation to consider this alternative in the FEIS. Indeed, Alternative C, the environmentally preferred option, was rejected because even its use levels were unacceptably low; the FEIS states that it did “not provide the balance between protection of ... [Outstanding Remarkable Values] and the desired recreation experience” given “significant displacement of both motorized and non-motorized users.” Because the 1970s alternative would have set even lower use levels, the agency satisfied the rule of reason in declining to include this option in the FEIS. Having analyzed and rejected a higher use level (Alternative C), the Forest Service had no obligation to consider an alternative unlikely to be implemented and inconsistent with basic policy objectives for managing the area, which included a level of use acceptable to all river users. See Akiak Native Community v. United States Postal Service, 213 F.3d 1140, 1148 (9th Cir.2000) (“[T]he [EA] considers a reasonable range of alternatives given the objectives of the Project. The Postal Service seeks to improve the reliability and efficiency of the mail delivery service to remote Alaskan villages. The Postal Service was not required to consider alternatives that would not serve this reasonable purpose. Therefore, it was permissible for the [EA] to reject the use of alternative transportation modes such as trucks.... It was the inefficiencies of these traditional alternatives that gave rise to the need for the experimental hovercraft Project in the first place.”); Resources Ltd., 35 F.3d at 1307 (“[a]lterna-tives that are unlikely to be implemented need not be considered, nor must an agency consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives for the management of the area”) (internal quotation marks and citation omitted). B. The Alliance’s Appeal The Alliance, which opposes the non-motorized window, attacks the 1994 FEIS, the ROD and the Forest Service’s development of the 1996 Outfitter EA. We reject each of these challenges. 1. Challenges to the 1994 FEIS and ROD The Alliance mounts substantive and procedural challenges to the FEIS and ROD. Its substantive claim focuses on the narrative findings of the FEIS, which it contends are unscientific and undocumented and thus do not justify selection of the window. Its procedural claim arises under NEPA and targets the agency’s alleged failure to disclose its methodology, hard data, expert opinion, or other basis for the window. Because the arguments underpinning these claims overlap substantially, we address both claims in this section. We turn first to the Alliance’s substantive claim that the Forest Service’s analysis of the window was unscientific and inadequate, resulting in a narrative FEIS that lacks the data and analysis necessary to support selection of the window. The Alliance contends that the FEIS and the ROD reveal no rational connection between the facts found and the conclusion reached. This is a harsh indictment that is not supported by the record. Although the agency might have better supported its preferred solution, its analysis is sufficient for reasoned decision-making. The FEIS and ROD show that the agency was well aware of conflict between motorized and non-motorized users, and made a reasoned and reasonably informed decision to institute the window to reduce that conflict and allow diverse recreation opportunities. Although the Alliance is correct that a court should not supply a “reasoned basis for the agency’s action that the agency itself has not given,” 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), there is no need for us to do so here. The Forest Service provided a reasoned basis for its decision to select a non-motorized window — namely, the need to balance various statutory considerations, conflicts between user groups and the expressed preferences of some users for a non-motorized option. The ROD explains that the University of Idaho’s Visitor Profile and Recreation Use Study (the “Idaho study”) revealed “different perceptions of exactly what kind of experience meets [visitors’] personal needs” and that these perceptions “sometimes result in conflicts ... perceived as intrusions on an individual’s personal recreation experience.” It also references a poll showing that “while motorized recreation was among the top compatible activities [compatible with ‘best stewardship’ of the area], it was also the most frequently mentioned incompatible activity.” In addition, given the preference for a non-motorized period in comments received on the draft and final EIS, the ROD concludes that the window appropriately provided “a reasonable non-motorized opportunity to interested private and commercial float-boaters” with “minimal effect on private powerboaters” that also “minimize[d] potentially adverse economic impacts on commercial powerboaters.” The ROD then addresses specifics of the window’s timing and duration, noting that it was scheduled for “the historically low powerboat use period of Monday through Wednesday.” The FEIS also references user conflicts and preferences. The Abstract states that Alternative G was developed “in response to public comments and emphasizes a balance of motorized and non-motorized use ... [with] periods of exclusive non-motorized use in a portion of the wild river.” The description of Alternative G reiterates this point: This alternative is specifically designed to address the significant issues and the diverse public comments received on the DEIS. These issues and public comments are resolved or partially resolved by emphasizing, during July and August of the primary season, a balanced allocation of motorized and non-motorized use levels within the wild section of the river in addition to providing an opportunity for a three-day non-motorized experience within a portion of the wild river ... designed to occur during the historically lowest use periods for motorized users. In discussing the recreation value in particular, the FEIS explains that a significant number of people on float trips say their expectations and desired experiences on a river trip are not met on a river with high levels of powerboat use. Some non-motorized users indicate that any motorized use in a wild and scenic river setting adversely affects their recreation experience. The current mix of motorized and non-motorized activities on the Snake River is an entirely new concept to many non-motorized users.... Meeting the recreational needs of motorized users must be balanced with the need to provide non-motorized users with the type of back country experience they desire. Aside from justifying the need for the window on the basis of user conflict, the FEIS provides detailed discussion of each alternative, analyzing effects based upon each alternative’s “capability to protect and enhance the recreation [Outstanding Remarkable Value] by achieving the desired ROS settings” and each alternative’s “capability to meet a great variety of visitor expectations by providing many different users with the opportunity to achieve their desired recreation experience.” Included in the FEIS is a detailed description of each category and how it was measured. The FEIS also repeatedly references the Idaho study. It ties the “need” for action to the finding that “the increase in recreation use in the river corridor was negatively impacting visitors’ recreation experiences” and concludes that powerboat use levels must be managed in part due to findings that “35% of the recre-ationists surveyed felt the river was crowded. Conflicts and complaints between the diverse user groups are common.” Given this evidence of user conflict and the agency’s documented interest in resolving it, we conclude that the agency made its decision based on a rational connection between the facts found and the conclusion reached. In so holding, we reject the Alliance’s claim that the agency’s analysis of the window was inadequate. In the context of this case, which heavily implicates subjective considerations, we cannot say that the narrative style of the FEIS was inappropriate. Nor can we agree that the FEIS fails adequately to set forth its methodology, as required by 40 C.F.R. § 1502.24. In analyzing the recreation value — the value most relevant to the window analysis — the FEIS incorporates ROS settings; adds categories specifically relevant to the Snake River corridor; outlines the “desired future conditions” for the corridor; and specifies how it rates each option’s potential to meet the desired settings. As we see it, the Alliance’s true quarrel is with the sufficiency of the methodology used. Although the Alliance’s attack on the scientific underpinnings of the FEIS raises reasonable questions, the agency’s methodology does not fail the “rule of reason.” Association of Public Customers, 126 F.3d at 1188. It is implicit throughout the FEIS that the Forest Service relied heavily on its own expertise both in developing the method of analysis outlined above and in conducting that analysis. The agency is entitled to rely on its own expertise. See generally Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (“an agency must have discretion to rely on the reasonable opinion of its own qualified experts” where specialists express conflicting views). The Forest Service’s analysis of the recreation value using ROS settings — a tool it developed for allocating recreation uses but that has not, as the Alliance points out, been validated specifically in the Snake River context — is a decision well within the realm of its expertise. In addition, the agency relied on other sources where such reliance was appropriate, as, for example, in setting forth the need and purpose for the Recreation Management Plan and the window itself. We are not convinced that the agency acted arbitrarily and capriciously in applying this tool to resolve the thorny use issues in this case. Although the agency could have conducted empirical studies, it by and large took a different, and we believe reasonable, approach to analyzing the recreation Outstanding Remarkable Value. Significantly, this is not a case in which the agency’s analysis is simply missing; on the contrary, its analysis goes on for more than 70 pages. Even if the agency’s tools are “primitive,” as the Alliance claims, under the unique circumstances, the decision not to employ a different methodology or particular empirical studies does not suffice to show arbitrary or capricious action. See Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 526 (9th Cir.1994) (upholding EIS under “rule of reason” despite “weaknesses” in its analysis of growth-inducing impacts and explaining that “NEPA does not require us to decide whether an EIS is based on the best scientific methodology available”). 2. 1996 Outfitter EA Finally, the Alliance charges that the Outfitter EA — conducted in 1996 as the agency had second thoughts about the window — “illegally excluded” the “Authorized Officer’s preferred course.” That course “would have eliminated the non-motorized window while imposing restrictions on numbers of private and commercial powerboaters.” The Alliance argues that the Outfitter EA thus failed to present a reasonable range of alternatives. The EA, as noted above, considered three alternatives: (1) a no-action alternative, which was windowless and had no restrictions on motorized water craft use; (2) an alternative mirroring Alternative G; and (3) the new preferred Alternative C that limited the window to a total of 21 days. This argument obscures a critical fact: Richmond, the Authorized Officer, ultimately concluded that a non-motorized window should remain part of the plan. The Alliance’s claim, however, fails on both the law and the facts. First, at this stage of proceedings, the Forest Service had no legal obligation to include this option. Significantly, the concept of the window had already been approved by Ferraro in his July 1995 decision on the administrative appeals of the 1994 ROD and FEIS. Nowhere did Ferraro direct the Forest Service to reconsider the very concept of the window. Rather, in ordering that the “specifics of timing and duration of a non-motorized window ... be considered as part of the analysis of operational limitations for commercial uses,” he simply directed the agency to reevaluate the timing and duration of the window in conjunction with a new analysis of economic impacts to commercial outfitters. Thus, the “range of alternatives” jurisprudence is not applicable in this case. Had the agency failed to include a reasonable range in the FEIS, it might have run afoul of the law. But this did not occur, for the agency included an appropriate range of alternatives in the FEIS. Absent significant new circumstances or information, the Forest Service did not need to repeat this task once it reached the stage of conducting, on remand, the Outfitter EA, which was to focus on economic impacts to commercial outfitters and propose changes to the window only with regard to specifics of timing and duration. That is precisely what the Outfitter EA did. Even assuming that the agency had a duty to include the specific alternative at issue in light of relevant new information, no such information surfaced during the EA process, including on administrative appeal. The Alliance identifies none, and Richmond himself ultimately concluded— after the November 25, 1996, letter that led Judge Redden to fear a chilling effect — that no new or significant information-had surfaced. See Letter of March 17, 1997 (review of the record and recent correspondence revealed “no significant information that establishes a compelling argument to eliminate the non-motorized period. Consequently there is no need for further analysis specific to the non-motorized period.”)- Notably, given the opportunity to expand on the comments he made in his November 25 letter, Richmond endorsed the concept of the window in his March 17 letter and accompanying document. As he explained, having had more time to review the issue — time to “complete” his review— he not only concluded that no new or significant information justified revisiting inclusion of the window but affirmatively concluded that it should be part of the Recreation Management Plan. See Letter of March 17, 1997 (“The non-motorized period should remain as a component of the ... Plan.”); “Non-Motorized Period Review Rationale” (“I find the non-motorized window to be an appropriate mechanism for providing desired recreation experiences on the wild portion of the Snake River.”). Apparently to allay concerns raised by his November 25 letter, Richmond even stated that he “did not intend to imply that the non-motorized period should be eliminated even though I considered that option during the EA process.” The March 17 correspondence cuts the heart out of the Alliance’s argument that the EA omitted the very alternative that Richmond wanted to select. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED . Several organizations join the Council in attacking the Forest Service’s plan. For ease of reference, we refer simply to the Council. . In 1982, the Forest Service adopted a Land Resource Management Plan for the Wallowa-Whitman National Forest that included management objectives for the river corridor, but it did not adopt regulations specific to motorized water craft. . See Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1426 (9th Cir.1989) (duty to promulgate regulations to control the use and number of jetboats), amended on other grounds, 899 F.2d 1565 (9th Cir.1990); Hells Canyon Preservation Council v. Richmond, 841 F.Supp. 1039 (D.Or.1993) (Forest Service unreasonably delayed issuance of final regulations). . This analysis was ultimately conducted separately from the commercial analysis in a document we refer to as the "Private Lands EA.” . The agency concluded, allegedly as a result of legal advice regarding the pending Council lawsuit, that only options including the window were "viable given our position in court.” Despite the Alliance's assertion that the agency believed only windowed options were viable, there is no doubt that the Outfitter EA on which Richmond based his decision contained a windowless option, by virtue of the no-action alternative. . The remaining few miles are part of the Hells Canyon NRA but do not fall under the WSRA. . Review under the "rule of reason” test is essentially the same as review for an abuse of discretion. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). . Examples of such categories include access, sense of remoteness, visitor management, and provision of an appropriate level of social encounters. . These conservation objectives resemble the river corridor's ORVs, except that they apply to the entire recreation area; lacking a statutory definition of terms such as '‘conservation” and "preservation,” we give them their ordinary meaning. . The Council sets up the straw-man argument that motorized use is not a conservation objective nor a factor that may be favored at the expense of conservation objectives. Recognizing that any recreation use necessarily impacts conservation objectives, however, the question we must decide is whether the agency acted arbitrarily and capriciously in imposing its chosen limitations in an effort to implement the Act’s multiple objectives. . The Wilderness Act, Pub.L. 88-577, 78 Stat. 890 (1964), does not enter into our analysis. Although the Hells Canyon NRA includes an area designated as the Hells Canyon Wilderness, Hells Canyon Act § 1(b), 16 U.S.C. § 460gg(b), which is to be administered in accordance with the Wilderness Act or the Hells Canyon Act, whichever is more restrictive, see Hells Canyon Act § 2(b), 16 U.S.C. § 460gg-1(b), the Hells Canyon Act provides for application of the Wilderness Act only in connection with the wilderness area, and the record indicates that the river corridor is adjacent to, not part of, the wilderness area. Accordingly, we do not address the Council’s contention that the Act’s § 2 mandate to conserve wilderness is the more restrictive and therefore applicable provision as between the Act and the Wilderness Act. . We also note in light of the competing objectives at issue here, that exclusion of a 1970s use-level alternative is not the type of egregious omission requiring reversal. Cf. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813-14 (9th Cir.1999) (failure to consider forest swap involving modifications to the acreage involved; range of alternatives — a no-action alternative and two nearly identical action alternatives — was inadequate, especially given that agency failed to consider alternative more consistent with its basic policy objectives); City of Tenakee Springs v. Clough, 915 F.2d 1308, 1311-12 (9th Cir.1990) (failure to consider terminating, modifying, or suspending timber harvest contract contemplating environmentally destructive amount of timber despite subsequent legislation designed to prevent environmental damage to subsistence resources); Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir.1988) (failure adequately to consider abandoned no-leasing option in case where issuance of oil and gas leases could have significant impact on environment). . We also reject the Alliance’s discovery challenge. We are not persuaded by the claim that the Alliance was unable to develop its arguments because the district court denied "essential” discovery. . See Akiak Native Community, 213 F.3d at 1146 ("[T]he agency’s decision-making process is accorded a ‘presumption of regularity.' We consider only whether the Postal Service’s decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Mindful of the limited scope of our review, we conclude that the [EA, considered as a whole,] is sufficiently well-documented and explained.”) (citation omitted). "[S]atisfied that [the] agency’s discretion is truly informed,” we defer to that informed discretion. Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992). .In discussing the non-motorized window in the ROD, Richmond explained that he instructed the agency “to include a period of motor-free time in the preferred alternative [G] in response to comments received on the [draft] EIS” and that comments on both the draft EIS and the FEIS showed that "a distinct group of respondents [existed] that favored some level of non-motorized opportunity.” In fact, that was the "predominant response from regional and national interests on the [draft] EIS.” .Notably, on administrative appeal, a portion of the window analysis — specifics of timing and duration — was remanded for consideration in conjunction with the Outfitter EA, at which point extensive consideration was given to these issues. . In discussing environmental consequences to the recreation ORV specifically, the FEIS cites to the Idaho study, in general terms, relying on it to conclude that: While recreationists often share common reasons for coming to the Snake River, their expectations of how best to achieve their desired experience can be quite different. For instance, powerboaters can have a backcountry experience with significantly higher numbers of encounters with other users and associated sights and sounds than floaters can without adversely affecting their experience. . It bears noting that the Idaho study is referenced at the beginning of the agency’s analysis of the recreation value in discussing differing user expectations. Based on the many citations to the study throughout the FEIS — including on the first page setting forth the purpose and need for the Recreation Management Plan — it requires no leap to conclude that the agency relied (sometimes implicitly) on the study’s findings. Moreover, that the agency relied on the study primarily to show the existence of user conflicts and differing expectations — and thus the need for a non-motorized option' — is appropriate in light of the study’s limited scope. .This is not to say that scientific methods of analysis cannot be applied to the window. Applied recreation research has long employed expert and technical analysis. Where we part ways with the Alliance is in our conclusion that the agency was entitled, in considering the window issue, to rely on the methodology it developed for allocating recreation uses. . Our discussion here applies both to the Alliance’s substantive and procedural claims. We note that the Alliance also contends that the FEIS fails to identify its authors or the experts on which it relies. Although the agency could have been more specific, we reject this claim because the FEIS does contain a list of preparers, along with their qualifications and duties, and a list of consultants, along with their areas of expertise. . Notably, the agency does provide hard data — its own as well as that of other researchers — in other areas of the FEIS that are ■ more readily quantifiable, such as with regard to the effect of the alternatives on the fisheries ORV. . "NEPA imposes on federal agencies a continuing duty to supplement existing EAs and EISs in response to 'significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.' ” Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562, 569 n. 2 (9th Cir.2000) (quoting 40 C.F.R. § 1509(c)(l)(ii)). . See also "Non-Motorized Period Review Rationale” (”[N]o new information was revealed in my review that had not been addressed in the previous two NEPA processes and decisions. Nor was new significant information found that established a need to revisit the^ non-motorized period through a new NEPA process. I conclude that there is no substantive reason that requires further analysis to eliminate the non-motorized window.”).

Newton County Wildlife Ass'n v. United States Forest Service

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”) seeking judicial review of four timber sales in the Ozark National Forest. Parties favoring timber harvesting intervened to support the Forest Service. The Wildlife Association filed sequential motions to preliminarily enjoin the sales as violative of the Wild and Scenic Rivers Act (‘WSRA”), 16 U.S.C. §§ 1271 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703 et seq. The district court separately denied each motion, and the Wildlife Association separately appealed those orders. We consolidated the appeals and now affirm. I. WSRA Issues. Enacted in 1968, WSRA authorizes Congress or a responsible federal agency to designate river segments that possess “outstandingly remarkable” environmental or cultural values as “components of the national wild and scenic rivers system.” 16 U.S.C. §§ 1271, 1274. The responsible federal agency, here the Forest Service, must establish detailed boundaries for each designated segment, including an average of not more than 320 acres of land per mile along both sides of the river. § 1274(b). Under a 1986 amendment, the agency must also prepare a “comprehensive management plan” within three fiscal years after a river segment is designated. The plan “shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary and desirable to achieve the purposes of [WSRA].” § 1274(d)(1). In 1992, Congress designated segments of six rivers within the Ozark National Forest. The Forest Service’s three-year deadline for completing comprehensive management plans for these segments (the “Plans”) was September 30, 1995. It is undisputed that the Plans were not completed on time. Therefore, the Wildlife Association argues that logging under the four timber sales must be preliminarily enjoined until the agency complies with this statutory mandate. The Forest Service issued final agency actions approving the four timber sales between August 23, 1994, and September 12, 1995, before the agency’s WSRA planning deadline. The Wildlife Association fails to relate this subsequent planning delinquency to judicial review of the timber sales. It relies upon cases in which plans or studies were a statutory precondition to the agency actions under review. See Kleppe v. Sierra Club, 427 U.S. 390, 398-402, 96 S.Ct. 2718, 2723-27, 49 L.Ed.2d 576 (1976) (National Environmental Policy Act), LaFlamme v. F.E.R.C., 852 F.2d 389, 402 (9th Cir.1988) (Federal Power Act), and Thomas v. Peterson, 753 F.2d 754, 763-64 (9th Cir.1985) (Endangered Species Act). But WSRA does not mandate completion of § 1274(d)(1) plans before timber sales may be approved. Therefore, the Forest Service did not violate WSRA by approving timber sales during the planning process. That being so, the agency was not required to suspend on-going implementation of the timber sales when it later failed to complete the Plans on time. Absent specific statutory direction, an agency’s failure to meet a mandatory time limit does not void subsequent agency action. See Brotherhood of Ry. Carmen v. Pena, 64 F.3d 702, 704 (D.C.Cir.1995); Kinion v. United States, 8 F.3d 639, 644 (8th Cir.1993). Moreover, because the preparation of WSRA Plans was not a precondition to approving the timber sales, a reviewing court may not enjoin or set aside the sales based upon the failure to prepare the Plans. Although the Forest Service may well have WSRA compliance obligations in approving timber sales (an issue not before us), the agency has substantial discretion in deciding proeedurally how it will meet those .obligations. Cf. Sierra Club v. Cargill, 11 F.3d 1545, 1548 (10th Cir.1993). The Forest Service maintains land and resource management plans for each national forest. Those plans “provide for multiple use and sustained yield of [forest] products and services ... [and] coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1); see 36 C.F.R. Part 219. In 1994, the Forest Service amended its management plan for the Ozark National Forest to take into account the 1992 WSRA designations. In addition, the agency prepared an environmental assessment before approving each of the timber sales in question. Had the Forest Service relied on WSRA Plans as evidencing its compliance with WSRA in approving the timber sales, then we would carefully examine that rationale. But absent a specific statutory directive, we would usurp the agency’s procedural autonomy if we compelled it to channel its compliance efforts into a particular planning format. Finally, a preliminary injunction would be inappropriate in this case because the Forest Service contends that the four timber sales lie outside the boundaries of the WSRA-designated river segments, and the Wildlife Association has not refuted that contention. The district court avoided this issue by ruling that WSRA plans must encompass federally controlled areas that lie outside but may affect a designated river segment. On appeal, the Forest Service argues that WSRA plans need only encompass lands lying within a designated segment and therefore its failure to timely prepare the Plans cannot affect the timber sales in question. We agree. Under WSRA, each designated river segment becomes a “component” of the national system. § 1274(a). Following designation, the responsible agency defines the boundaries of “each component,” determining how much land adjacent to the river is included in the designation. § 1274(b). At that point, the agency “charged with the administration of each component ... shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values.” § 1274(d)(1). In our view, the plain meaning of that provision limits the planning requirement to the boundaries of the designated river segment, because it is the designated “segment” that becomes a “component” of the national system. This reading is confirmed by § 1281(a) of the Act, which links agency planning and administration to the designated component. Because the Forest Service may limit WSRA plans to lands lying within designated river segments, failure to timely prepare the Plans cannot be a basis for enjoining timber sales on lands lying outside any designated area. If a plaintiffs legal theory has no likelihood of success on the merits, preliminary injunctive relief must be denied. See Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 931 (8th Cir.1994). Therefore, the district court properly denied the Wildlife Association’s motion to preliminarily enjoin the timber sales because of the Forest Service’s failure to complete WSRA Plans. II. MBTA Issues. The Wildlife Association seeks judicial review of the timber sales under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. As a matter of pleading, APA review is a single “claim for relief’ under Fed.R.Civ.P. 8(a). But the Wildlife Association’s amended complaint made this lawsuit unnecessarily convoluted by improperly pleading a separate “Claim for Relief’ under each federal statute that, in the Wildlife Association’s view, the Forest Service has violated. Thus, its Sixth Claim for Relief alleged that “approval of the Buffalo River Timber Sales violates the Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.).” After the district court denied preliminary injunctive relief under WSRA, the Wildlife Association filed a second motion for a preliminary injunction, seeking to enjoin implementation of the timber sales on the ground that the Forest Service failed to obtain an MBTA “special purpose” permit from the United States Fish and Wildlife Service. The district court denied the motion, concluding that it does not have jurisdiction over a separate MBTA claim. One week later, the court granted the Forest Service partial summary judgment and dismissed the Wildlife Association’s Sixth Claim for Relief. The Wildlife Association appeals both orders. The Wildlife Association argues that the APA confers jurisdiction to grant injunctive relief “under the MBTA” The district court correctly concluded that the Wildlife Association’s MBTA claim is barred by Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294 (8th Cir.1989). In Defenders, plaintiffs alleged that the agency violated MBTA when it terminated a proceeding commenced under another statute, known as FI-FRA, to cancel strychnine pesticide registrations. After noting that MBTA does not create private rights of action, we rejected plaintiffs’ assertion that the APA conferred jurisdiction to consider this claim. “Although the APA may state the scope of review, 5 U.S.C. § 706, FIFRA still provides the mechanism for obtaining judicial review. Thus, the APA does not operate separately from FIFRA, but instead as a part of FI-FRA” 882 F.2d at 1302-03. In this ease, the Wildlife Association’s Sixth Claim for Relief fails for the same reason. The Forest Service approved the timber sales acting under the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600 et seq. Jurisdiction to review the sales is conferred by NFMA, not the APA See Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir.1996). This ease differs from Defenders in one important respect. In Defenders, EPA declined to take pesticide registration action under the governing statute, FIFRA. Plaintiffs did not seek review of that failure to act under FIFRA, no doubt because such a challenge would be contrary to the general principle that “an agency’s decision not to take enforcement action [is] presumed immune from judicial review under [5 U.S.C.] § 701(a)(2).” Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985), followed in Lincoln v. Vigil, 508 U.S. 182, 192-93, 113 S.Ct. 2024, 2031-32, 124 L.Ed.2d 101 (1993). Here, on the other hand, the timber sales are final agency actions subject to judicial review under NFMA. One issue in conducting that review is whether the Forest Service’s actions under NFMA are arbitrary, capricious, or contrary to law because the agency ignored or violated its obligations under MBTA. The district court did not address this issue in denying preliminary injunctive relief, perhaps because the Wildlife Association did not squarely raise it. But the issue has been raised on appeal and deserves our attention. Congress passed MBTA in 1918 to implement a treaty between the United States and Great Britain protecting migratory birds in North America. See generally Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). MBTA makes it unlawful, “except as permitted by regulations,” to pursue, hunt, take, capture, kill, possess, sell, barter, purchase, ship', export, import, transport, or carry specified migratory birds or their nests or eggs. 16 U.S.C. §§ 703, 704. MBTA is a criminal statute: “any person, association, partnership, or corporation” who violates MBTA or its regulations is guilty of a misdemeanor and may be fined up to $500 and imprisoned for up to six months; those who knowingly take or sell migratory birds in violation of the Act are guilty of a felony. 16 U.S.C. § 707(a), (b). In this case, the Wildlife Association alleges, and the Forest Service concedes, that logging under the timber sales will disrupt nesting migratory birds, killing some. The Wildlife Association argues that the sales therefore violate MBTA’s absolute prohibition against killing or taking nesting birds unless the Forest Service obtains a permit under the Fish and Wildlife Service regulations implementing MBTA. We disagree. Initially, we note that MBTA’s plain language prohibits conduct directed at migratory birds — “pursue, hunt, take, capture, kill, possess,” and so forth. The government argues that the statute imposes “strict liability” on violators, except for felony violations, which under a recent amendment must be done “knowingly.” Strict liability may be appropriate when dealing with hunters and poachers. But it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds. Thus, we agree with the Ninth Circuit that the ambiguous terms “take” and “kill” in 16 U.S.C. § 703 mean “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.” Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir.1991); accord Mahler v. United States Forest Serv., 927 F.Supp. 1559, 1573-74 (S.D.Ind.1996); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F.Supp. 1502, 1509-10 (D.Or.1991). In addition, we agree with the Forest Service that MBTA does not appear to apply to the actions of federal government agencies. MBTA sanctions apply to “any person, association, partnership, or corporation,” 16 U.S.C. § 707(a). “Since, in common usage, the term ‘person’ does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it.” United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941); see Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989). The Wildlife Association argues that MBTA must apply to federal agencies if our Nation is to meet its obligations under the 1916 treaty. But the government’s duty to obey the treaty arises from the treaty itself; the statute extends that duty to private persons. This is confirmed by Article VIII of the treaty: “The High Contracting Powers agree themselves to take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution of the present Convention.” Convention Between the United States & Great Britain for the Protection of Migratory Birds, Art. VIII, 39 Stat. 1702, 1704 (1916) (emphasis added). Our conclusions about the apparent scope of MBTA are necessarily tentative because we lack the views of the Fish and Wildlife Service, the agency charged with administering and enforcing that statute. This regulatory vacuum exposes the most serious flaw in the Wildlife Association’s claim that the timber sales violate MBTA. The Wildlife Association argues that the Forest Service must apply for and obtain the special purpose permit described in the Fish and Wildlife Service’s MBTA regulations. But the permitting regulation, though potentially broad, does not on its face apply to the Forest Service or other federal agencies. See 50 C.F.R. § 21.27. The Wildlife Association has no authority suggesting that the Fish and Wildlife Service generally requires the Forest Service to obtain this permit for its timber sales. Nor has the Fish and Wildlife Service expressed that view in this proceeding, before either the agency or the reviewing courts, for example, by seeking to intervene or submitting a brief amicus curiae. In substance, the Wildlife Association urges this court to enjoin timber sales because the Forest Service did not obtain a permit that the Fish and Wildlife Service does not require. Thus, the Wildlife Association’s real dispute is with the Fish and Wildlife Service, for that agency’s failure to enforce MBTA against Forest Service timber sales in the manner the Wildlife Association desires. But the Wildlife Association has not asserted that claim, which would run afoul of the Heckler v. Chaney presumption that agency failure to take enforcement action is not subject to APA review. Whatever the reason the Fish and Wildlife Service does not require the Forest Service to obtain MBTA permits, this enforcement policy is committed to agency discretion and is not a proper subject of judicial review. For the foregoing reasons, the district court’s orders of April 8, 1996, and July 29, 1996, denying the Wildlife Association’s motions for a preliminary injunction are affirmed. Because the reasons for denying injunctive relief under MBTA are inextricably intertwined with the district court’s August 5, 1996, order dismissing the Wildlife Association’s Sixth Claim for Relief, we have jurisdiction to consider the Wildlife Association’s interlocutory appeal of that order, and it too is affirmed. . The HONORABLE WILLIAM R. WILSON, JR., United States District Judge for the Eastern District of Arkansas. . Of course, a party aggrieved by an agency's failure to meet a statutory planning deadline may seek a court order compelling the agency to complete the required plan. See Brock v. Pierce County, 476 U.S. 253, 260 n. 7, 106 S.Ct. 1834, 1839 n. 7, 90 L.Ed.2d 248 (1986). However, the Wildlife Association has not separately challenged the Forest Service’s failure to prepare WSRA Plans. Compare Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir.1994). . On January 14, 1997, while this appeal was pending, the district court issued a more detailed order confirming its contrary interpretation of WSRA. The court lacked jurisdiction over the issue at that time, and its order is hereby vacated. .WSRA § 1283(a) imposes a general obligation on agencies having jurisdiction over lands “which include, border upon, or are adjacent to” a designated river segment to protect the river in accordance with WSRA. But in our view, § 1283(a) does not require agencies managing adjacent federal land to prepare or join in a WSRA plan. It merely instructs their managers to take actions that protect designated rivers. Whether that standard has been met in a particular case is a question of fact. See Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 820 (9th Cir.1990). . The Wildlife Association’s contention that the district court did not make the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a) is without merit. Under Rule 52(a), the district court must "sufficiently inform the [appellate] court of the basis” of its decision. Scoggins v. Board of Educ., 853 F.2d 1472, 1477 (8th Cir.1988). Here, the court ruled that the failure to complete WSRA Plans did not warrant enjoining performance of the timber sale contracts. Rule 52(a) requires no more.

Wilderness Society v. Tyrrel

FARRIS, Circuit Judge: OVERVIEW The Forest Service appeals the grant of Wilderness Society’s summary judgment motion to permanently enjoin implementation of the South Fork Fire Recovery Sale Project. The district court found that the Forest Service’s plan to allow a sale of burned timber on Forest Service land near the South Fork of the Trinity River, a river protected under the Wild and Scenic Rivers Act, was in violation of that Act. 16 U.S.C. §§ 1271-1287. This case requires us to define the requirements imposed by the Wild and Scenic Rivers Act on the Forest Service in “administering” and “managing” federal land adjacent to or within a river area designated for protection by the Secretary of the Interior pursuant to 16 U.S.C. § 1273(a)(ii). The district court held that the Act requires the Forest Service to create a management plan for the river and enjoined the proposed sale of the burned timber because no such plan had been formulated. There is no dispute that a management plan was not prepared. We take full cognizance of the discussions of management plans contained in the Wild and Scenic Rivers Act and the Forest Service regulations. Nonetheless, we find that the district court erred in holding that the government was required to prepare a comprehensive management plan prior to conducting land management activities on federal land adjacent to or within a Secretary designated river area. Although the Forest Service is obligated to conduct itself in a manner that respects the goals of the Act and preserves the values for which the area received protected status, neither the Act nor the Forest Service’s own regulations require that it prepare a management plan for the South Fork. JURISDICTION The district court had general federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court of appeals has jurisdiction pursuant to 28 U.S.C. § 1291. The notice of appeal was properly filed within 60 days of the district court’s final judgment, pursuant to Fed.R.App.P. 4(a)(1). ISSUES Three issues are before the court: 1) Does the Wild and Scenic Rivers Act require that a federal agency prepare a comprehensive management plan prior to undertaking land management activities on federal land adjacent to or within a Secretary designated river area? 2) Do the Forest Service’s own internal guidelines mandate that a comprehensive plan be prepared? 3) If the Forest Service has no such duty, (a) what is the extent of its legal duty to protect a river that has been designated by the Secretary under the Wild and Scenic Rivers Act and (b) have such obligations been satisfied? FACTS This appeal is from a grant of summary judgment. The facts are not in dispute. The South Fork of the Trinity River is included in the National Wild and Scenic Rivers System. The Forest Service wishes to conduct a sale of fire damaged timber on National Forest land located in the area immediately around portions of the South Fork. In district court, the plaintiffs successfully challenged the proposed salvage sale as violating the Wild and Scenic Rivers Act. Of particular interest in this appeal are sections 1(b), 2, 3, 10, and 12 of the Act. The parties cite no case law interpreting section 2(a)(ii), the pivotal provision, because there is none. The case is one of first impression. DISCUSSION I. Introduction to the Wild and Scenic Rivers Act The purpose of the Wild and Scenic Rivers Act is to select and protect certain rivers “which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife ... or other similar values ... in free-flowing condition.” 16 U.S.C. § 1271. The Wild and Scenic Rivers Act was enacted in 1968. Rivers become part of the National Wild and Scenic Rivers System through one of two methods. They may be included by an Act of Congress after appropriate study reveals that the river warrants protection. 16 U.S.C. § 1273(a)(i). This is by far the most common method by which rivers are included in the national system. A second method is through the application of a state governor to the Secretary of the Interior. Because this method is set forth in section 1273(a)(ii) and requires the approval of the Secretary of the Interior, we refer to it as the (a)(ii), or Secretary designated, method of inclusion. Such rivers must not only meet the federal requirement of “outstandingly remarkable” qualities, see 16 U.S.C. § 1273(b); 47 Fed.Reg. 39,454-59 (Sept. 7, 1982), but the state legislature must designate them as wild, scenic, or recreational, and provide that they will be permanently administered as such by the state. A key requirement is that each Secretary designated river “shall be administered by the State or political subdivision thereof without expense to the United States other than for administration and management of federally owned lands.” 16 U.S.C. § 1273(a). The South Fork of the Trinity River was designated for inclusion in the national system by the Secretary of the Interior in the waning hours of the Carter administration. 46 Fed.Reg. 7484 (Jan. 23, 1981). There were numerous complaints that the process was unduly rushed for political reasons, see Fairfax, Andrews & Buchsbaum, Federalism & the Wild & Scenic Rivers Act: Now You See It, Now You Don’t, 59 Wash.L. Rev. 417 (1984), but legal challenges to the designation were ultimately defeated, see County of Del Norte v. United States, 732 F.2d 1462 (9th Cir.1984). The central benefits extended by Wild and Scenic Rivers Act designation are restrictions on water resource projects by federal agencies, especially the Federal Energy Regulatory Commission, see 16 U.S.C. § 1278, and on federal mining and mineral leasing that affects lands within the system, see 16 U.S.C. § 1280. In addition, the river area’s administration must protect the values that justified the river’s initial designation under the Act. There is limited provision for purchase and exchange of land around the designated river as well as mention of using state and local zoning laws. Restrictions are also placed on federal agencies engaged in projects around designated rivers, requiring respect be paid to the protected values. See 16 U.S.C. § 1283(a). II. The Requirement of a Management Plan Courts have limited authority to impose procedural requirements upon a federal agency which seeks to exercise the responsibilities committed to it by Congress. A history of statutory and decisional law cautions “reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 525, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). In the absence of constitutional constraints or extremely compelling circumstances a court may not fashion procedural obligations beyond those' explicitly enumerated in the pertinent statutes. Id. at 525, 543, 558, 98 S.Ct. at 1202, 1211, 1219. The district court relied primarily upon two textual bases in requiring that the Forest Service have a management plan for the South Fork. It found that the Wild and Scenic Rivers Act, itself, mandated that the Forest Service prepare a management plan prior to conducting land management activities. The district court also garnered support for its holding by reference to the Forest Service’s own manual. We find that, in both instances, the district court read the provisions out of context and failed to analyze them in a manner consistent with established constraints on judicial authority. A. The Wild and Scenic Rivers Act The district court’s finding that the Wild and Scenic Rivers Act requires the Forest Service to prepare a management plan for the South Fork rests upon a misinterpretation of 16 U.S.C. § 1283(a). Section 1283, entitled “Management policies,” states in part: The Secretary of the Interior, the Secretary of Agriculture, and the head of any other Federal department or agency having jurisdiction over any lands which include, border upon, or are adjacent to, any river included within the National Wild and Scenic Rivers System or under consideration for such inclusion ... shall take such action respecting management policies, regulations, contracts, plans, affecting such lands ... as may he necessary to protect such rivers in accordance with the purposes of this chapter. 16 U.S.C. § 1283(a) (emphasis added). In reading the highlighted text to require the Secretary to create “management policies, regulations, contracts, [and] plans” to protect the river, the district court misconstrued the word “respecting.” That the Secretary must take such action “respecting ” policies and plans suggests an interaction between independent federal land policies and the interests and purposes of the Wild and Scenic Rivers Act, not a mandate that all agencies with jurisdiction over federal lands within or adjacent to a protected river system formulate a management plan under the Act. The requirement specified in section 1283(a) is that federal agencies conducting management activities within or near the boundaries of a protected river conform their policies and programs to the purposes of the Wild and Scenic Rivers Act. We recognize that the distinction is subtle; however, it is significant. A requirement to consider river values protected under the Act in the course of undertaking any independent project or plan differs from a procedural requirement that federal agencies prepare a plan under the Act itself. Plaintiffs/Appellees seek to bolster the district court’s interpretation of the Wild and Scenic Rivers Act with reference to 16 U.S.C. §§ 1281 and 1274. Section 1281 states in pertinent part: Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features. Management plans for any such component may establish varying degrees of intensity for its protection and development, based on the special attributes of the area. 16 U.S.C. § 1281(a). This section anticipates the existence of management plans but there is neither an express requirement that such plans be prepared nor a timetable for their preparation. In the absence of such explicit language, we can not infer that the section mandates that a federal agency prepare a comprehensive management plan prior to conducting land management activities on federal land adjacent to or within a Secretary designated river area. Our authority to “interpret” statutory language falls short of permitting us to add requirements that are not mandated by the language used by Congress. Section 1274(d) provides: (1) For rivers designated on or after January 1,1986, the Federal agency charged with the administration of each component of the National Wild and Scenic Rivers System shall prepare a comprehensive management plan for such river segment ... (2) For rivers designated before January 1, 1986, all boundaries, classifications, and plans shall be reviewed for conformity within the requirements of this subsection within 10 years through regular agency planning processes. 16 U.S.C. § 1274(d) (1988). Although paragraph (2) refers to plans for rivers designated prior to 1986, the provision requires only a review of pre-ex-isting plans rather than a requirement that such plans be prepared. Under the statutory scheme preceeding the 1986 amendments, the Wild and Scenic Rivers Act required that management plans be developed only for rivers designated by Act of Congress. Thus, the present section 1274 merely directs that plans developed under the pre-amendment Act for rivers designated by Congress be reviewed for conformity with the requirements of the 1986 amendments. Although supererogatory plans prepared for rivers designated by the Secretary of the Interior prior to January 1, 1986 may be subject to review under section 1274(d), the provision does not require that management plans be developed for such rivers. We do not ignore the references to management plans in the Wild and Scenic Rivers Act. We also recognize that the preparation of comprehensive plans prior to embarking on land management activities would be a prudent measure to ensure that the purposes of the Act are respected. However, we are not free to impose our own notions of procedural propriety upon the Forest Service. Courts must be reluctant to mandate that a federal agency step through procedural hoops in effectuating its administrative role unless such procedural requirements are explicitly enumerated in the pertinent statutes or otherwise necessary to address constitutional concerns. Since the Wild and Scenic Rivers Act does not expressly require a federal agency to prepare a management plan for a river designated by the Secretary of the Interior before January 1, 1986, in order to conduct land management activities on federal land adjacent to or within the protected river area, we can not properly read such a requirement into the statute. B. The Forest Service Manual The district court also relied on the Forest Service Manual to find that a management plan must be prepared. Reliance on these internal guidelines is also misplaced. The government argues that the Forest Service Manual does not constitute a substantive regulation binding upon the agency. However, we need not determine the legal force of the internal guidelines. Even if we assume, arguendothat the Forest Service Manual is binding, the guidelines do not bar the Forest Service from implementing the proposed sale of the burned timber without first preparing a comprehensive plan for the South Fork. Section 2354.32 of the Forest Service Manual, entitled “River Management Plan,” reads in part: Manage river areas which either Congress or the Secretary of the Interior designates as components of the National Wild and Scenic Rivers Systems (NW & SRS) in accordance with the requirements of the Act.... Forest Supervisors shall prepare and approve an implementation plan for each river area included in the NW & SRS by (a) Act of Congress or (b) Secretary of the Interior designation under Section 2(a)(ii) of the Act. When a river crosses more than one National Forest, the Forest Supervisors involved shall jointly prepare and approve the implementation plan. Complete the plan by the date specified in the legislation or within three years after designation by the Secretary of the Interior, for rivers designated on or after January 1, 1986. Forest Service Manual § 2354.32 (Region 5 Supp. 165) (July 1988). The district court viewed the second paragraph of section 2354.32 as a firm statement of the Forest Supervisor’s obligation to create a plan for Secretary designated rivers. However, the specified three year timetable refers only to rivers designated by the Secretary of the Interior on or after January 1, 1986. Because the South Fork was designated in 1981 such strictures are inapplicable. Moreover, we have found that the Wild and Scenic Rivers Act does not require that the Forest Service prepare a plan for federally owned property within or adjacent to a pre-1986 Secretary designated river. Thus the legislation does not specify a date for completion of such a management plan. As such, there is no timetable covering plan preparation for rivers designated by the Secretary prior to January 1, 1986. Notably, section 2354.-32 does not require that a plan be formulated prior to conducting any land management activities on federally owned land. Since (1) no specified timetable for completion of a management plan was included and (2) there was no requirement that such plans be prepared before engaging in land management activities, we must conclude that section 2354.32 was not violated by the Forest Service’s failure to prepare a comprehensive plan of South Fork prior to the proposed sale of burned timber. Section 2354.32 would be violated only if the Forest Service failed to satisfy the first paragraph’s requirement that a Secretary designated river be “manage[d] ... in accordance with the requirements of the Act.” Id. However, such a requirement does not provide an independent basis for disallowing the proposed sale of timber. Rather, the obligation merely duplicates and anticipates the dispositive question remaining in this case: Since the Forest Service is not required to have prepared a plan for the South Fork, what are the Forest Service’s management requirements? III. Requirements under the Act The government contends that the Wild and Scenic Rivers Act is not implicated by the South Fork Fire Recovery Sale Project because the timber at issue rests on lands a quarter of a mile from the river. However, section 12 of the Act directs the federal agency with jurisdiction “over any lands which include, border upon, or are adjacent to, any river included within the National Wild and Scenic Rivers System” take action “to protect such rivers in accordance with the purposes of [the Act].” 16 U.S.C. § 1283(a). The land at issue in this case is either within or adjacent to the South Fork river system. The proposed sale of timber, whether conducted on land within the river area’s boundaries or adjacent to the river area, will impact protected values. Thus, we proceed to address the obligations of the Forest Service under the Wild and Scenic Rivers Act. Seetion 2(a) of the Act provides in pertinent part that: Each river designated under clause (ii) shall be administered by the States or political subdivision thereof without expense to the United States other than for administration and management of federally owned lands. 16 U.S.C. § 1273(a) (emphasis added). Although the state is the principal administrator of a Secretary designated river system, the appropriate federal agency retains management responsibilities for implicated federal lands. The requirements for managing land under the Wild and Scenic Rivers Act are specified in sections 10 and 12. As noted above, section 10 directs that: Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features. 16 U.S.C. § 1281(a). Section 1283 requires that any federal agency with jurisdiction over lands within or adjacent to a Secretary designated river system “take such action ... as may be necessary to protect such rivers in accordance with the purposes of this chapter.” 16 U.S.C. § 1283(a). The provision notes that “[particular attention shall be given to scheduled timber harvesting ... which might be contrary to the purposes of [the Act].” Id. In addition to general requirements designed to ensure that the purposes of the Wild and Scenic Rivers Act are respected, section 1283 specifically requires that federal agencies “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 [designated] river.” 16 U.S.C. § 1283(c). Whether the proposed sale of burned timber undermines the purposes of the Act or jeopardizes the values of the South Fork for which it received protected status is a factual question not presently before this court. The district court held, as a matter of law, that the Forest Service did not “cooperate” with the Secretary of Interior and appropriate state water pollution control agencies as required by 16 U.S.C. § 1283(c). The Secretary of the Interior and state agencies objected to the proposed sale, expressing concern that the plan chosen entails an unacceptable risk to water quality, the primary value prompting the river’s designation under the Act. The Forest Service says it took those concerns into account. In the absence of a definition of cooperation in an applicable statute or regulation, the question of whether the Forest Service “cooperated” is one of fact. Whether the Forest Service cooperated can not be determined on this record as a matter of law. CONCLUSION The narrow issue on appeal is whether the Wild and Scenic Rivers Act requires a federal agency to prepare a comprehensive management plan before conducting land management activities on federal land adjacent to or within a Secretary designated river area. We hold that for those river systems designated by the Secretary prior to January 1, 1986, no such plan is required. However, federal land must be managed so as to ensure that the purposes of the Wild and Scenic Rivers Act are not abrogated. The factual dispute as to the impact of the planned sale, and therefore as to whether the Forest Service has fulfilled its obligations under sections 10 and 12 of the Act, remains before the district court. Whether the record supports the argument of the Forest Service that their plan adequately protects the water quality and other protected values of the South Fork is not yet ripe for review. The district court must also determine whether, as a factual matter, the Forest Service fulfilled its obligation of cooperation under section 12(c). , REVERSED and REMANDED. . The district court found that the "defendants have failed to adopt the ‘management policies, regulations, contracts [and] plans’ affecting such lands as may be ‘necessary to protect such rivers in accordance with the purposes of this chapter.’” Wilderness Soc’y v. Tyrrel, 701 F.Supp. 1473, 1487 (E.D.Cal.1988) (quoting 16 U.S.C. § 1283(a)). . The court noted that “ ‘forest supervisors shall prepare and approve an implementation plan for each river area included in the [National Wild & Scenic Rivers Act] by (a) Act of Congress or (b) Secretary of the Interior designation under section 2(a)(ii) of the Act.’ ” Tyrrel, 701 F.Supp. at 1488 (quoting Forest Service Manual § 2354.32 (Region 5 Supp. 165) (July 1988)). . Before the 1986 amendment, section 1274 provided that: The agency charged with the administration of each component of the national wild and scenic rivers system designated by subsection (a) [an Act of Congress] of this section shall, within one year from October 2, 1968 ... establish detailed boundaries therefor ...; and prepare a plan for necessary developments in connection with its administration in accordance with [its] classification. 16 U.S.C. § 1274(b)(1982) (emphasis added). The highlighted text explicitly restricts the application of the section to rivers designated under section 1273(a)(i). . The Forest Service’s regulation was greatly amended and clarified in 1989, after litigation had begun and the district court had issued its published opinion in favor of the Wilderness Society. In amended form it reads in part: For rivers included in the NW & SRS on or after January 1, 1986 by Secretary of the Interior's designation under Section 2(a)(ii) of the Act, Forest Supervisors shall also prepare and approve a river (implementation) plan within three full fiscal years.... For rivers designated by the Secretary of the Interior before January 1, 1986, Forest Supervisors shall develop boundary descriptions, review the classifications, and prepare and complete the river (implementation) plan within three full fiscal years after approval of the Forest Land and Resource Management Plan (FLRMP), but in no event later than October 27, 1996. Forest Service Manual § 2354.32 (Region 5 Supp. 166) (Mar.1989), Appellees’ Excerpts of Record at Exh. 24. Even were this amended form to apply, the Forest Service would still not have violated the timetable in failing to prepare a plan prior to the proposed sale. . The district court appears also to have read a joint guideline of the Departments of Interior and Agriculture to have barred timber harvest in the South Fork area as a matter of law. The district court stated: As amended, joint regulations of the Departments of Interior and Agriculture indicate that ‘there should be ... no ongoing timber harvest’ in wild areas, 47 Fed.Reg. 38457 (September 7, 1982), and that in scenic areas, any timber harvest must be 'accomplished without a substantial adverse effect on the natural appearance of the river or its immediate environment.' As published regulations promulgated by a national agency, these provisions plainly qualify as official agency interpretation under the indicia suggested in Miller [v. Youakim], 440 U.S. [125,] 145 n. 25, 99 S.Ct. [957,] 969 n. 25, [59 L.Ed.2d 194 (1979)]. 701 F.Supp. at 1484. However, the discussion cited by the court lists criteria governing the selection of rivers for inclusion in the system, rather than criteria governing management of rivers once included. The section of the guideline that discusses management indicates that timbering might be possible, although discouraged, even in areas designated “wild": "Generally, uses more intensive than grazing and hay production are incompatible with wild river classification.... Timber harvest in any river area will be conducted so as to avoid adverse impacts on the river area values.” 47 Fed.Reg. 39,459 (Sept. 7, 1982). The joint guideline does not bar, as a matter of law, the proposed sale of burned timber in the South Fork area.

United States v. Hells Canyon Guide Service, Inc.

KILKENNY, Circuit Judge: The factual background surrounding this controversy is relatively simple and is not disputed. On August 11, 1975, appellant Forest 0. Garrigus, Jr. purchased the Hells Canyon Guide Service. This Service was involved in commercial boating operations on the Snake River in the vicinity of the Hells Canyon National Recreation Area. In 1973, the Forest Service had instituted a moratorium on the issuance of commercial “float” boat permits for the Snake River. In February of 1976, Garrigus filed an application for a permit authorizing float boat trips on the Snake River during the 1976 season. This application was denied by the Forest Service on the grounds that the 1973 moratorium on new float boat permits was still in effect. In March of 1976, the Forest Service did issue a permit to Garrigus which enabled him to conduct “jet” boat trips on the Snake River until December 31, 1976. On April 29, 1976, a letter was sent to Garrigus by the Forest Service informing him of his violation of the terms of his jet boat permit. Specifically, Garrigus was charged with violating clause 32 of the permit by circulating brochures advertising services that were beyond those authorized by his permit. Although the permit authorized only jet boat activities, the brochures additionally advertised both float boat and big game hunting guide trips. This breach was grounds for revocation under the terms of the permit. The Forest Service, however, advised Garrigus that he would not be issued a new permit for 1977 because of this violation. Garrigus applied for three permits (float boat, jet boat, and big game hunting) in December of 1976. All of these applications were denied by the Forest Service. Garrigus pursued an administrative appeal of these denials, and the decisions were affirmed. 36 C.F.R. § 261.10(c) prohibits conducting any business activity within a National Forest or within the boundaries of a component of the National Wild and Scenic Rivers System unless authorized by federal law, regulation, or permit. In addition, on July 25, 1978, the Forest Service published regulations which, when implemented by specific order, prohibit entering or being on lands or waters within the boundaries of a component of the National Wild and Scenic Rivers System. 36 C.F.R. § 261.58(z). On May 22, 1979, pursuant to these regulations, Forest Order 3 was issued jointly by the Forest Supervisors of the Payette, Nez Perce, and Wallowa-Whitman National Forests, prohibiting: “Entering or being on the waters in any rivercraft, amphibious craft, or any other craft, motorized or non-motorized, without a permit.” Garrigus, through his business, Hells Canyon Guide Service, Inc., conducted commercial float boat activities during 1976, 1977, and 1978 without a permit. He also conducted jet boat operations without a permit from 1977 to mid-1979. In July of 1979, the appellee was granted a temporary restraining order compelling Garrigus to cease operating boat services on the Snake River without a permit. A permanent injunction was issued in November of 1979. Appellants appeal from the granting of this injunction. ISSUE Appellants argue that the permit system administered by the Forest Service is invalid and, therefore, the issuance of a permanent injunction based upon their failure to comply with the system was improper. Consequently, the dispositive issue on this appeal is whether the institution of this permit system was a valid exercise of the power of the Secretary of Agriculture to regulate the area and activities in question. DISCUSSION The power of the federal government to regulate the area and activities in question is not in dispute. ' United States v. Lindsey, 595 F.2d 5 (C.A.9 1979). Rather, the appellants claim that this power has not been properly exercised. The Hells Canyon National Recreation Area (Hells Canyon) was established in 1975 in order to preserve the area’s natural beauty and historical and archeological values as well as to enhance the recreational and ecological values and public enjoyment of the area. 16 U.S.C. § 460gg(a). This area was placed under the direct supervision of the Secretary of Agriculture (the Secretary), who was given the following direction: “§ 460gg-7. Rules and regulations The Secretary shall promulgate, and may amend, such rules and regulations as he deems necessary to accomplish the purposes of sections 460gg to 460gg — 13 of this title. . . . ” [Emphasis added] Appellants argue that the use of the word “shall” places an affirmative duty upon the Secretary to promulgate regulations pursuant to this specific direction before he would have the ability to do anything which would tend to limit the use and occupancy of Hells Canyon. Put another way, appellants would have us hold that 16 U.S.C. § 460gg-7 strips the Secretary, in his dealings with Hells Canyon, of his general regulatory authority over the national forests and waterways, leaving him without power to act until he promulgates new regulations. Assuming this to be true, the remainder of appellants’ argument can be phrased as an extended syllogism. The permit system administered by the Forest Service cites the 1897 Organic Act, 16 U.S.C. § 551, as assimilated by the Wild and Scenic Rivers Act, 16 U.S.C. § 1281(d), as the authority for its promulgation. The permit system is not administered pursuant to a regulation promulgated under 16 U.S.C. § 460gg-7. Therefore, the permit system is invalid and without effect since it is an attempt to regulate Hells Canyon without first complying with a necessary precondition to such regulation. We do not agree. The regulation of the use and occupancy of national parks, forests and waterways is a matter of great national importance. The strong national policy regarding the conservation of this country’s natural resources dictates that we must view this legislation from a broad rather than a narrow perspective. When a statute is part of an organic whole, the statute should be viewed in context with the whole of which it is a part. United States v. California Portland Cement Co., 413 F.2d 161, 166 (CA9 1969). 16 U.S.C. § 551 gives the Secretary of Agriculture the authority to regulate the use and occupancy of the national forests. This authority is assimilated into 16 U.S.C. § 1281(d), giving the Secretary the authority to regulate the use and occupancy of components of the Wild and Scenic Rivers System. The portion of the Snake River involved in this dispute is a component of this System. 16 U.S.C. § 1274(a)(12). Section 1281(a) of the Wild and Scenic Rivers System Act illustrates the recurring motivation of Congress by giving the Secretary a clear instruction regarding the administration of his regulatory power: “[PJrimary emphasis shall be given to protecting [the component’s] esthetic, scenic, historic, archeologic, and scientific features.” This emphasis on protection permeates these regulatory schemes, and Hells Canyon is no exception. 16 U.S.C. § 460gg(a). Appellants’ argument would necessarily run contrary to the well expressed intention of Congress to protect the Hells Canyon National Recreation Area, as well as national forests, parks and waterways in general. It would require the Secretary to take an additional, in fact, a redundant, affirmative step before he would be able to take any action to protect an area placed under his direct supervision. We are convinced that in enacting 16 U.S.C. § 460gg-7, Congress did not intend to strip the Secretary of his other regulatory powers. When statutes are capable of co-existence, it is the duty of courts, absent a clearly expressed Congressional intention to the contrary, to regard each as effective. Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976); SDC Development Corp. v. Mathews, 542 F.2d 1116, 1120 (CA9 1976). The authority granted the Secretary under the Hells Canyon National Recreation Area Act was intended by Congress to be cumulative, not independent and exclusive. We, therefore, find that the authority conferred upon the Secretary by 16 U.S.C. § 551 and 16 U.S.C. § 1281(d) is more than sufficient to validate the use of a permit system by the Forest Service to regulate the activities that form the basis of this controversy. Appellants were clearly in violation of this permit system, and thus, the granting of a permanent injunction against appellants’ commercial boating operations was proper. Appellants also complain about the administration of the permit system by the Forest Service. The interpretation of an administrative regulation by the agency or officers charged with its administration is to be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); Ventura-Escamilla v. I.N.S., 647 F.2d 28, 32 (CA9 1981). We find that the administration of the permit system by the Forest Service is neither. AFFIRMED. . At oral argument, counsel for the appellants informed the court that a “float” boat is a rivercraft without a motor. This is to be contrasted with a “jet” boat which is a motorized rivercraft. . The permanent injunction also orders the appellants to remove certain structures and advertising materials from the area in which they conducted their business since their presence is in violation of other Forest Service regulations. The discussion that follows applies equally to these elements of the injunction.

Scenic Hudson Preservation Conference v. Callaway

OPINION PER CURIAM: In this fourth appeal to this court involving the challenged Storm King Project, a hydroelectric facility slated to be built on the west bank of the Hudson River, defendant Consolidated Edison Company of New York, Inc. (“Con Ed”) appeals from a portion of a final judgment entered in the United States District Court for the Southern District of New York, Morris E. Lasker, J. Plaintiffs (collectively “Scenic Hudson”) cross-appeal from other parts of that judgment. In the district court, plaintiffs contended that Con Ed could not dump rock and other fill material into the Hudson River, as planned, without first obtaining a permit from the United States Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1344. They also claimed that an additional permit was required by section 10 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 403. Judge Lasker agreed with Scenic Hudson on the need for a section 404 permit but held that Con Ed was not obliged to obtain a permit under section 10. He therefore granted plaintiffs’ motion for summary judgment as to section 404, awarding them permanent injunctive and declaratory relief, and denied it as to section' 10. The judge also granted Con Ed’s motions for summary judgment dismissing the complaint and for declaratory relief as to the section 10 claim and denied it as to the section 404 claim. Both Scenic Hudson and Con Ed appeal from those portions of the judgment rejecting their respective positions. As to these issues, we affirm the judgment of the district court on the well-considered opinion of Judge Lasker. 370 F.Supp. 162 (1973). Scenic Hudson’s cross-appeal raises one additional question not dealt with in the court’s written decision. Plaintiffs argue that the judge erred in limiting injunctive relief to the actual discharge of fill material into the River rather than enjoining construction activities of any kind. Their rationale for this claim is that commencement of excavation would exert “tremendous pressure” on the licensing agency to grant Con Ed’s application. But there is also pressure on Con Ed to proceed as far and as fast as possible in order to avoid still further cost escalation and to preserve its license against a claim that it has not begun construction within the stipulated period. Under these circumstances, we cannot say that Judge Lasker abused his discretion in confining the injunction as he did. We therefore affirm the judgment below in all respects. . For the prior history of this case in our court, see Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) (“Scenic Hudson I”) and Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972) (“Scenic Hudson II”). See also Hudson River Fishermen’s Ass’n v. FPC, 498 F.2d 827 (2d Cir. 1974). . Plaintiffs moved to amend the judgment to expand the scope of injunctive relief. Judge Lasker denied the motion without opinion.

Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection

OPINION ROTH, Circuit Judge: In this appeal, we are called upon to review water quality-related permitting actions by New Jersey and Pennsylvania for a project by Transcontinental Gas Pipe Line Company, LLC (Transco), which operates the Transcontinental pipeline, a 10,-000-mile pipeline that extends from South Texas to New York City. Transco sought federal approval to expand a portion of the pipeline, called the Leidy Line, which connects gas wells in Central Pennsylvania with the main pipeline. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP and NJDEP, respectively) reviewed Transeo’s proposal for potential water quality impacts and issued permits for construction. The New Jersey Conservation Foundation, Stony Brook-Millstone Watershed Association, and Friends of Princeton Open Space (collectively, the Foundation) petitioned this Court for review of NJDEP’s decision to issue these permits. In a separate petition to this Court, the Delaware Riverkeeper Network and Maya van Rossum (collectively, the Riverkeeper) challenged PA-DEP’s issuance of a Water Quality Certification required under Section 401 of the Clean Water Act. The petitions were consolidated for review. For the reasons that follow, we conclude this Court has jurisdiction to hear these petitions, and NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits. Therefore, we will deny the petitions. I. Statutory Background Under the Natural Gas Act of 1938, the Federal Energy Regulatory Commission (FERC) has exclusive authority to regulate sales and transportation of natural gas in interstate commerce. Section 7 of the Natural Gas Act grants FERC the power to authorize the construction and operation of interstate transportation facilities. Specifically, no company or person may construct or extend any facilities for the transportation in interstate commerce of natural gas without obtaining a “certificate of public convenience and necessity” from FERC. FERC determines whether a project serves “public convenience and necessity” by reviewing a number of factors, such as the project’s impact on competition for the transportation of natural gas, the possibility of overbuilding or subsidization by existing customers, avoidance of unnecessary disruptions to the environment, the applicant’s responsibility for unsubscribed capacity, and the avoidance of unnecessary exercise of eminent domain. The issuance of a “certificate of public convenience and necessity” is conditioned on receipt of state and other federal authorizations required for the proposed project. Other federal authorizations may be required because interstate sales and transmission of natural gas are further regulated through federal environmental laws, including the National Environmental Policy Act (NEPA) and the Clean Water Act. To comply with NEPA, before issuing a certificate of public convenience or necessity, FERC must examine the potential environmental impact of a proposed pipeline project and issue an Environmental Assessment or, if necessary, an Environmental Impact Statement. Although the Natural Gas Act preempts state environmental regulation of interstate natural gas facilities, the Natural Gas Act allows states to participate in environmental regulation of these facilities under three federal statutes: the Clean Air Act, the Coastal Zone Management Act, and the Clean Water Act. As relevant here, the Clean Water Act regulates through a combination of state and federal mechanisms: the U.S. Environmental Protection Agency (EPA) limits the discharge of pollutants into water bodies, and states establish water quality standards, subject to EPA approval, that must at a minimum comply with EPA’s limits. This combination of state and federal mechanisms is apparent when a proposed activity involves discharge of dredged or fill material into the navigable waters of the United States and thus triggers the permitting requirements of Section 404 of the Clean Water Act. Section 404 permits typically are issued by the U.S. Army Corps of Engineers; however, a state may assume the authority to administer these permits. Whether or not the state assumes this authority, a Section 404 permit may be issued only if the state where the discharge will occur issues a Water Quality Certification, governed by Section 401 of the Clean Water Act. A Water Quality Certification confirms that a given facility will comply with federal discharge limitations and state water quality standards. Unlike the Section 404 permit, the Water Quality Certification is by default a state permit, and the issuance and review of a Water Quality Certification is typically left to the states. New Jersey has assumed authority to issue Section 404 permits and delegated administration of the permitting program to NJDEP, which exercises this authority pursuant to the New Jersey Freshwater Wetlands Protection Act. Therefore, for activities that result in discharge of dredged or fill material into New Jersey waters, NJDEP reviews applications for Water Quality Certifications and Section 404 permits. In contrast, Pennsylvania has not assumed Section 404 permitting authority. For activities affecting Pennsylvania waters, Section 404 permits are issued by the U.S. Army Corps of Engineers, and Water Quality Certifications are issued by PADEP. II. Administrative Background In September 2013, Transeo submitted an application to FERC for a certificate of public convenience and necessity for the Leidy Southeast Expansion Project. The Project consists of two major types of improvements to existing natural gas pipelines: the construction of four new pipeline “loops” and the upgrade of turbines at four compressor stations. “Loops” are sections of pipe connected to the main pipeline system that reduce the loss of gas pressure and increase the flow efficiency of the system. Compressor stations serve a similar function, using gas- and electric-powered turbines to increase the pressure and rate of flow at given points along the pipeline’s route. In its application, Transeo proposed installing, within or parallel to existing Transeo pipelines, approximately thirty miles of loops. The Skillman Loop and the Pleasant Run Loop, totaling 13.23 miles, would be located in New Jersey; the Franklin Loop and Dorrance Loop, totaling 16.74 miles, would be located in Pennsylvania. FERC completed the requisite Environmental Assessment in August 2014, and issued the certificate of public convenience and necessity on December 18, 2014. The certificate was conditioned on, inter alia, Transco’s receipt of “all applicable authorizations under federal law” enumerated in the Environmental Assessment, some of which were to be obtained from New Jersey and some from Pennsylvania. A. New Jersey FERC required Transeo to obtain the following authorizations for each loop from NJDEP: a Freshwater Wetlands Individual Permit, a Flood Hazard Area Individual Permit, a Water Quality Certification, and a Letter of Interpretation. Transeo first obtained Letters of Interpretation, in which NJDEP sets forth the boundaries of freshwater wetlands and state-regulated transition areas. Transeo then applied for the remaining permits. In December 2014, NJDEP deemed those applications “administratively complete,” a status that triggered a public notice and comment process. Two months later, NJDEP held a public hearing in Princeton, New Jersey. In light of comments from NJDEP staff and the public, Transeo submitted revised plans. A few days later, NJDEP asked Transeo to address additional comments, and Transeo provided responses. In April, NJDEP issued, for each loop, a Freshwater Wetlands Individual Permit, a Flood Hazard Area Individual Permit, and a Water Quality Certification. In addition, NJDEP released Staff Summary Reports, which set forth the findings and analysis underlying its permitting decisions. Tran-sco began construction on May 6, 2015. Two days later, the Foundation petitioned this Court for review of NJDEP’s decision to issue the permits. Later in May, while the Foundation’s petition was pending, Transco submitted a request to NJDEP for a minor modification to the Freshwater Wetlands Individual Permit for the Skillman Loop, to change the excavation method for a wetland in Princeton, New Jersey. NJDEP approved the request on June 4, 2015, which the Foundation challenged in its opening brief. Later in June, the Foundation filed an emergency motion for a stay of construction. A week later, we denied the motion. At this time, the New Jersey portion of the project is substantially complete. B. Pennsylvania FERC required Transco to obtain from PADEP a Water Quality Certification and a Water Obstruction and Encroachment Permit. The latter, issued under Chapter 105 of PADEP’s regulations, are referred to as “Chapter 105 Permits.” FERC further required Transco to obtain a Section 404 permit from the U.S. Army Corps of Engineers. Each certificate or permit covered both loops in Pennsylvania. Transco applied to PADEP for the Water Quality Certification in June 2014. In the following month, PADEP published notice in the Pennsylvania Bulletin that it intended to issue a Water Quality Certification so long as Transco obtained certain other state permits, including a Chapter 105 Permit. In April 2015, PADEP issued a Water Quality Certification for the project. Shortly thereafter, the Riverkeeper filed a petition in this Court specifically challenging the Water Quality Certification. Three months later, PADEP issued a Chapter 105 permit. After receiving all of its required permits, Transco sought permission from FERC to proceed with construction. FERC granted this request in July 2015, during the pendency of the instant matter. III. Threshold Challenges At the outset, we consider challenges by NJDEP and PADEP regarding this Court’s jurisdiction, the justiciability of the petitions, and whether sovereign immunity shields state agency actions. Specifically, NJDEP and PADEP allege that we lack subject matter jurisdiction to review the petitions and that, even if we had jurisdiction, the petitions are barred by the Eleventh Amendment. NJDEP further argues that because construction in New Jersey is substantially complete, the petition is moot. A. Subject Matter Jurisdiction The Riverkeeper and the Foundation, in petitioning this Court for review, invoke a provision of the Natural Gas Act that confers original jurisdiction on Courts of Appeals over certain state and federal permitting actions for interstate natural gas pipelines. Both PADEP and NJDEP contest whether that provision applies. Our jurisdiction ultimately depends on whether PADEP and NJDEP acted “pursuant to Federal law” in issuing permits to Tran-sco. We begin with the statute. In 2005, Congress amended the Natural Gas Act to subject certain state and federal permitting decisions for interstate natural gas pipeline projects to review by the federal Courts of Appeals. Specifically, under Section 19(d) of the Natural Gas Act, the Courts of Appeals have jurisdiction to review actions undertaken (1) by a State administrative agency; (2) pursuant to federal law; (3) to issue, condition, or deny a permit, license, concurrence, or approval; (4) required for an interstate natural gas facility permitted under the Natural Gas Act; (5) that is located in the jurisdiction of the circuit Court of review. The parties do not dispute that all elements are met except whether NJDEP and PADEP acted “pursuant to Federal law” in issuing Water Quality Certifications, permits, and Letters of Interpretation. NJDEP and PADEP contend that their decisions to issue Water Quality Certifications are not covered by the provision that grants jurisdiction to this Court and, consequently, we lack jurisdiction to hear these petitions. NJDEP further contests our jurisdiction to review those authorizations that “exclusively involv[e] issues of State law,” including the Flood Hazard Area Individual Permits, the Letters of Interpretation, and those portions of the Freshwater Wetlands Individual Permits that address state-regulated issues such as transition areas or state threatened and endangered species. For the following reasons, we hold that we have jurisdiction over these petitions. B. Jurisdiction over Water Quality Certifications 1. Permits Issued by PADEP PADEP argues that this Court does not have jurisdiction over Water Quality Certifications because our jurisdiction under the Natural Gas Act extends only to state agency action taken pursuant to federal law, whereas a Water Quality Certification is required by federal law. This argument does not pass muster. Although the Clean Water Act makes clear that states have the right to promulgate water quality standards as they see fit, subject to EPA oversight, the issuance of a Water Quality Certification is not purely a matter of state law. A state issues a Water Quality Certification for an interstate natural gas facility to certify compliance with state water quality standards, promulgated under federal supervision, as well as with federally-established Clean Water Act requirements. Specifically, a Water Quality Certification confirms compliance with Sections 301, 306, and 307 of the Clean Water Act, all of which involve federal standards. Thus, a Water Quality Certification is not merely required by federal law: it cannot exist without federal law, and is an integral element in the regulatory scheme established by the Clean Water Act. To say otherwise would be to ignore the EPA’s supervisory role in the setting of state water quality standards, the fact that Water Quality Certifications must verify compliance with federal standards, and the role of the federal government in regulating water quality as envisioned by drafters of the Clean Water Act. The conclusion that a Water Quality Certification is issued pursuant to federal law is bolstered by the Natural Gas Act’s provisions that allow states to regulate or subject state action to federal judicial review. The Natural Gas Act preempts state environmental regulation of interstate natural gas facilities, except for state action taken under those statutes specifically mentioned in the Act: the Coastal Zone Management Act, the Clean Air Act, and the Clean Water Act. In other words, the only state action over interstate natural gas pipeline facilities that could be taken pursuant to federal law is state action taken under those statutes. In another provision, Section 19(d), the Natural Gas Act grants jurisdiction to the Courts of Appeals to review state agency action taken pursuant to federal law except for the Coastal Zone Management Act. Applying the statutory construction canon, the express mention of one thing excludes all others, the express exception of the Coastal Zone Management Act from review by the Court of Appeals indicates that Congress intended state actions taken pursuant to the two non-excepted statutes, the Clean Water Act and the Clean Air Act, to be subject to review by the Courts of Appeals. This interpretation is supported by the legislative history of the bill amending Section 19(d), which indicates that the purpose of the provision is to streamline the review of state decisions taken under federally-delegated authority. Thus, a state action taken pursuant to the Clean Water Act or Clean Air Act is subject to review exclusively in the Courts of Appeals. To bar this Court’s review of PA-DEP’s actions in permitting an interstate natural gas facility pursuant to the Natural Gas Act and the Clean Water Act would frustrate the purpose of Congress’s grant of jurisdiction and render superfluous the explicit exception from federal judicial review of the Coastal Zone Management Act. 2. Permits Issued by NJDEP NJDEP argues we have no jurisdiction over the Freshwater Wetlands Individual Permits or the Water Quality Certifications, and even if we had jurisdiction over those two authorizations, we cannot reach issues regarding aspects of the Freshwater Wetlands Individual Permits that concern transition areas and threatened and endangered species, the Letters of Interpretation, or-the Flood Hazard Area Individual Permits. We consider each authorization in turn, and conclude that each is rooted in NJDEP’s exercise of authority that it assumed pursuant to Sections 401 and 404 of the Clean Water Act. First, with respect to NJDEP’s argument that we lack jurisdiction over the Freshwater Wetlands Individual Permits and the Water Quality Certifications, New Jersey’s Freshwater Wetlands Protection Act provides for the state’s administration of Section 404 permits, and its implementing regulations make clear a permit issued under the Act, called the Freshwater Wetlands Individual Permit, “constitutes” the Water Quality Certification. Given that the Natural Gas Act provides this Court with jurisdiction to review state authorizations issued pursuant to the Clean Water Act, this Court has jurisdiction over the Freshwater Wetlands Individual Permits and the Water Quality Certifications. Next, NJDEP argues that those portions of the Freshwater Wetlands Individual Permit that address state threatened and endangered species are governed by state law rather than the Clean Water Act, and thus are not subject to our review. A Freshwater Wetlands Individual Permit may be issued only if the regulated activity “[w]ill not destroy, jeopardize^] or adversely modify a present or documented habitat for threatened or endangered species . In issuing the permits, NJDEP imposed conditions on the proposed activity for the protection of state threatened and endangered species. Given that the Freshwater Wetlands Individual Permit constitutes both the Section 404 permit and the Water Quality Certification, and that, under Section 401 of the Clean Water Act, “any other appropriate requirement of state law set forth in [the] certification” will be treated as a condition on the federal permit affected by the certification — in this case, the Section 404 permit—the conditions that protect threatened and endangered species are part of the Freshwater Wetlands Individual Permit, and we have jurisdiction to review these conditions. Under similar reasoning, we have jurisdiction over the Flood Hazard Area Individual Permits. The Freshwater Wetlands Protection Act requires compliance with the Flood Hazard Act. Accordingly, Transco applied for and obtained Flood Hazard Area Individual Permits, which enumerate conditions on activities in flood hazard areas to protect water quality. The Flood Hazard Area Individual Permit is, in effect, a set of conditions on the Freshwater Wetlands Individual Permit. Given that we have jurisdiction over the Freshwater Wetlands Individual Permit, we have jurisdiction over the Flood Hazard Area Individual Permit as conditions set forth in the Water Quality Certification. Likewise, the Letters of Interpretation are part and parcel of the Freshwater Wetlands Individual Permits, and thus subject to this Court’s review. New Jersey regulations require an applicant for a Freshwater Wetlands Individual Permit to submit the Letter of Interpretation as part of the application package if a Letter has been issued, or “[i]f the applicant applies for [a Freshwater Wetlands Individual Permit] without first obtaining [a Letter of Interpretation], the permit application must include all information that would be necessary for the Department to issue [a Letter of Interpretation] for the site.... The Department will then review the submitted wetland delineation as part of the permit review process.” In other words, a Freshwater Wetlands Individual Permit application must include either an issued Letter of Interpretation .or all the materials' required for NJDEP to issue such a Letter. Therefore, the Letters of Interpretation are integral to the Freshwater Wetlands Individual Permit application and the review process of the permit, and thus subject to our review. B. Mootness We next consider NJDEP and Transco’s argument that the petition for review is moot because construction is complete and Transco has been conducting mitigation and restoration. Thus, any procedural remedy would be ineffectual. The Foundation argues the petition is not moot because we can provide relief in the form of additional analysis of environmental impact and measures to address those effects. Mootness raises both constitutional and prudential concerns. Under Article III, “[i]t is a basic principle ... that a justiciable case or controversy must remain extant at all stages of review. ...” Prudentially, a court may decline to exercise discretion to grant declaratory and injunctive relief if a controversy is “so attenuated” that considerations of prudence and comity counsel withholding relief. The central question in a mootness analysis is “whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” A case becomes moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” When a court can fashion “some form of meaningful relief’ or “impose at least one of the remedies enumerated by the appellant,” even if it only partially redresses the grievances of the prevailing party, the case is not moot. The Foundation challenges NJDEP’s conclusions regarding the proposed pipeline’s environmental impact and the amount of mitigation required. This case is not moot because NJDEP may monitor mitigation outcomes following completion of mitigation. Specifically, pursuant to New Jersey regulation and as set forth in the Freshwater Wetlands Individual Permits and the Flood Hazard Area Individual Permits, Transco must submit annual reports to NJDEP for three years after completing mitigation, and NJDEP may monitor the progress of remedial actions. If mitigation has not met the requirements in the regulations, NJDEP may direct Transco to perform additional mitigation or other remedial action. Therefore, there remains possible effectual relief because further environmental analysis might lead NJDEP to require additional mitigation from Transco. Thus, we conclude that this petition is not moot. C. Sovereign Immunity NJDEP and PADEP contend that any challenge brought under Section 19(d) is barred by the Eleventh Amendment. With respect to the Water Quality Certifications and Section 404 permits, NJDEP and PA-DEP argue that their mere participation in the Clean Water Act permitting process does not waive their sovereign immunity provided by the Eleventh Amendment. NJDEP further argues that when it assumed authority to administer Section 404, it explicitly reserved its sovereign immunity for Section 404 actions through a Memorandum of Agreement with the EPA. Therefore, according to NJDEP, sovereign immunity bars this Court from reviewing the Freshwater Wetlands Individual Permits, Flood Hazard Area Individual Permits, and Letters of Interpretation. These arguments are unavailing. As discussed below, we hold that New Jersey and Pennsylvania’s voluntary participation in the regulatory schemes of the Natural Gas Act and the Clean Water Act constitutes a waiver of sovereign immunity, given the clear language in those statutes subjecting their actions to federal review. 1. Overview The Eleventh Amendment of the United States Constitution states that federal courts may not hear “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State...” Courts have interpreted the amendment as applying to suits against states by their own citizens as well, and have extended the immunity to state agencies. The immunity from suit is not absolute; Congress has limited power to abrogate the states’ immunity. A state may waive its immunity by engaging in conduct that demonstrates the state’s consent to suit in federal court. A state may consent to suit in federal court by accepting a gift or gratuity from Congress when waiver of sovereign immunity is a condition of acceptance. When Congress makes a gift to a state that Congress is not obligated to make and which the state cannot claim as a matter of right, Congress may attach conditions to this gift, including a waiver of sovereign immunity. These “gifts” need not only be monetary awards; a congressional grant of regulatory authority that a state may not otherwise possess is also a gift. We addressed the theory of “gratuity waiver” as applied to a grant of regulatory authority in MCI Telecommunications Corporation v. Bell Atlantic Pennsylvania, where Pennsylvania’s Public Utility Commission argued that a section of the Telecommunications Act of 1996, which provides for federal court review of state-approved interconnection agreements, violated the agency’s Eleventh Amendment immunity. We held that Congress had made federal judicial review a necessary condition of state participation in regulation of telecommunications. A state’s participation in the regulatory scheme constituted acceptance of the gift, and, thus, a waiver of Eleventh Amendment immunity. Nevertheless, mere acquiescence is insufficient to abrogate sovereign immunity. A state’s gratuity waiver must be knowing and voluntary. In other words, Congress must make its intention to condition acceptance of a gratuity on the waiver of Eleventh Amendment immunity “unmistakably clear.” 2. Sovereign Immunity and Section 19(d) Here, the application of the gratuity waiver doctrine is consistent with precedent of our sister courts and supported by the language of Section 19(d) of the Natural Gas Act. In Islander East Pipeline Company v. Connecticut Department of Environmental Protection, the Second Circuit recognized that the Natural Gas Act strips states of any authority to regulate a particular field — in this case, interstate natural gas transmission facilities— save certain “rights of the states” granted under those three enumerated statutes, one of which is the Clean Water Act. Consistent with this doctrine, a state participates in Clean Water Act regulation of interstate natural gas facilities by congressional permission, rather than through inherent state authority. A state may refuse the grant of authority: under the Clean Water Act, a state’s non-participation in water quality regulation returns authority to the EPA. A state also may decline to exercise its authority to issue an applicant a Water Quality Certification, and in so doing waive the requirement for a Water Quality Certification, and the proposed activity proceeds without a Water Quality Certification. In the context of an interstate natural gas facility, a state’s refusal to issue a Water Quality Certification would waive the need for the facility to obtain a Certification in order to satisfy conditions of FERC’s certificate of public convenience and necessity. In effect, such a refusal would return the state’s delegated authority to enforce Section 401 of the Clean Water Act to FERC with respect to the project. Therefore, state participation in the regulatory schemes of the Clean Water Act and under the framework of the Natural Gas Act constitutes a gratuity waiver. We agree with the Islander court that the principle of gratuity waiver applies to the regulatory scheme established by the Natural Gas Act. Section 19(d) grants the Courts of Appeals jurisdiction to review “state agency action.” This language is unambiguous. New Jersey and Pennsylvania’s participation in the regulatory scheme of the Clean Water Act with respect to interstate natural gas facilities, pursuant to the Natural Gas Act and after the amendment of Section 19(d), constitutes a waiver of their immunity from suits brought under the Natural Gas Act. In effect, Section 19(d) creates a small carve out from sovereign immunity. Under this limited carve out, federal judicial review is proper over those state actions regarding interstate natural gas facilities pursuant to the Clean Water Act and the Clean Air Act. For these reasons, we have jurisdiction over the petitions. We therefore turn to the merits of these petitions. IV. Merits Challenges A. Standard of Review The standard of review of state action pursuant to the Clean Water Act for an interstate natural gas facility is a matter of first impression for this Court. Consistent with our precedent in MCI, which dealt with a similar regulatory arrangement, we review de novo state agency interpretation of federal law, and review under the arbitrary and capricious standard state action taken pursuant to federal law. Agency action is arbitrary and capricious when the agency fails to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” When we review an agency action under this standard, the Administrative Procedure Act (APA) directs us to take account of “the rule of prejudicial error.” In other words, we apply a “harmless error” analysis to any administrative action we review; mistakes that have no bearing on the substantive decision of an agency do not prejudice a party. The party challenging the agency determination bears the burden of demonstrating prejudice. Where an agency errs in fact finding, we remand only if the agency relied on the erroneous finding in its decision. B. New Jersey The Foundation alleges four general problems with NJDEP’s issuance of the Freshwater Wetlands Individual Permits, the Flood Hazard Area Individual Permits, the Water Quality Certifications, and the Letters of Interpretation: (1) NJDEP deprived the Foundation of sufficient opportunity to comment, (2) NJDEP issued the Freshwater Wetlands Individual Permits based on unsupported conclusions, (3) NJDEP erred in determining that Transco met the requirements for the Flood Hazard Area Individual Permits and hardship exceptions for those permits, and (4) NJDEP misconstrued regulation in granting a minor modification for the Freshwater Wetlands Individual Permit of the Skillman Loop. We address each in turn and .conclude that NJDEP did not act arbitrarily or capriciously with respect to the first three alleged errors. We hold that the fourth challenge is not properly before this Court. 1. Opportunity for Public Comment State regulations require NJDEP, after determining an application to be administratively complete, to publish a notice of the application in the DEP Bulletin, make the application available at its offices in Trenton, and, in some circumstances, hold a public hearing. The public may comment on the application within 30 days of the notice. The Department “shall consider all written public comments submitted within this time” and “may, in its discretion, consider comments submitted after this date[,]” although state regulations do not define “consider.” The Foundation alleges that NJDEP committed two errors that deprived the Foundation of the opportunity to comment on Transco’s application. First, the Foundation argues that NJDEP prematurely determined that Transco’s application was “administratively complete,” a designation that triggers the public notice and comment process, even though Transco had failed to include a required element of the application. Second, the Foundation argues that NJDEP failed to provide proper notice to the public of Transco’s application because NJDEP’s initial notice of Tran-sco’s application in the DEP bulletin cited only Hunterdon County as the project location and omitted three other affected counties — Somerset, Princeton, and Mercer. Although the Foundation argues that it was deprived of an opportunity to comment on the revisions because Transco submitted the revised analysis after the close of the public comment period, the Foundation reviewed the revised analysis and submitted additional written comments from its members and two drilling experts and had a face-to-face meeting with NJDEP to express its continued concern with the proposal. The record shows that NJDEP asked Transco to respond to the concerns raised. A party challenging the sufficiency of the public comment process bears the burden of showing it was prejudiced by the lack of opportunity to comment. The fact that NJDEP ultimately did not adopt the Foundation’s view does not mean that the Foundation lacked the opportunity to put forth that view. Similarly, petitioners were not harmed by the omission of three counties from the initial notice because Princeton Ridge Coalition and Stony Brook-Millstone Watershed Association — both located in the initially omitted counties — were aware of the proposal well before the offending initial notice was published. As early as 2013, both had met with NJDEP and Transco regarding the proposed project and provided written comments. Therefore, the Foundation has failed to demonstrate that it was deprived of the opportunity to comment. For that reason, NJDEP’s actions were not arbitrary or capricious. 2. Agency Analysis on Environmental Impact of Proposal New Jersey regulations require NJDEP to analyze the environmental impact of the proposed activity, such as the activity’s potential effect on water quality, the aquatic ecosystem, and threatened and endangered animals. The Foundation alleges NJDEP acted in an arbitrary and capricious manner because NJDEP (1) failed to adequately analyze alternatives to the proposed activity that would be less environmentally-adverse or result in the minimum feasible impairment of the aquatic ecosystem, (2) defined the project purpose in such a narrow manner as to exclude potential alternatives to the proposed activity, (3) improperly concluded that the proposed activity in connection with the Skillman Loop will not harm threatened or endangered species or their habitats, and (4) improperly determined that the proposal is in the public interest. a. Consideration of Alternatives New Jersey regulations require NJDEP to issue a Freshwater Wetlands Individual Permit only if certain prerequisites are met. As relevant to this petition, New Jersey regulation requires NJDEP to consider practicable alternatives to the proposed activity that “would have a less adverse impact on the aquatic ecosystem or would not involve a freshwater wetland or State open water” and “would not have other significant adverse environmental consequences. Where Transco rejected alternatives on the basis of constraints such as inadequate zoning, infrastructure, or parcel size, NJDEP must consider whether Transco made reasonable attempts to remove or accommodate those constraints. In addition, when a regulated activity would take place in wetlands or waters deemed of “exceptional resource value” or related to trout production, NJDEP must consider whether there is a compelling public need for the activity and whether denial of the permit would impose extraordinary hardship on the applicant. The Foundation claims that NJDEP insufficiently considered alternatives, including those that would have resulted in the minimum feasible environmental alteration or impairment of the aquatic ecosystem. The Foundation also alleges that NJDEP failed to rebut the presumption that the proposed activity has a practicable alternative — such as in size, scope, configuration, density, or design — that would avoid impact or have a lesser impact, a required analysis because the project is a “non-water dependent activity.” The record shows NJDEP considered potential alternatives, such as replacing the existing pipeline with a larger one rather than constructing a new loop, increasing operating pressure within the existing loop, and building various alternative routes. NJDEP weighed the options, adopted some, and rejected others as impractical. Specifically, NJDEP required Transco to reduce the size of the construetion workspace in regulated areas, substitute less environmentally-adverse crossing techniques for six wetlands, and use specific drilling methods at three locations to reduce impacts. NJDEP provided explanation for those alternatives not adopted. For example, the use of horizontal direct drilling and direct pipe drilling at certain locations would be more costly and carried the risk of equipment failure, damage to the pipe, and inadvertent release of drilling fluid into the soil. Similarly, alternative routes were impracticable because they might interfere with an existing water line or cause greater land or wetland disturbance. Additionally, NJDEP considered whether the proposed activity would affect wetlands or waters categorized as “exceptional resource value” or related to trout production. NJDEP noted that wetlands in the Pleasant Run Loop were neither of exceptional resource value nor trout-producing, and that, although certain wetlands in the Skillman Loop were of exceptional resource value, compelling public need for the project outweighed the impact on wetlands and waters. NJDEP not only considered but also acted upon alternatives, in direct contrast to the Foundation’s allegations. Adoption of alternatives reduced open water and wetland disturbance by 38 percent for the Pleasant Run Loop and 48 percent for the Skillman Loop, according to an NJDEP analysis. For the Skillman Loop, NJDEP consideration of alternatives led to the selection of the shortest proposed route, of which 86 percent is collocated within Tran-sco’s existing pipeline right-of-way. NJDEP also required those portions not collocated to be constructed with a specific drilling technique to reduce wetland disturbance. Therefore, NJDEP’s actions were not arbitrary or capricious. b. Definition of Project Purpose Next, the Foundation charges NJDEP defined the project purpose in such way as to preclude alternatives, by including a durational limitation as part of the purpose. The limitation rendered impracticable those construction methods that are less environmentally-adverse but more time-consuming. The Foundation’s challenge relies on language regarding project purpose in New Jersey regulations on practicable alternatives. Regulations define “practicable alternative” as “other choices available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes.... ” However, neither New Jersey regulations nor case law defines the term “project purpose.” For the present project, NJDEP stated that the project purpose was “to construct the pipeline and ... to begin service through the proposed pipeline by ... December 31, 2015.” A “short construction window” for the project was recommended by the U.S. Army Corps of Engineers to reduce disturbance to water-bodies, and FERC discussed temporal limitations on construction in its order granting the certificate of public convenience and necessity. Given this concern, NJDEP considered the duration of disturbance of water bodies in choosing a drilling method, in addition to other factors, such as the number of trees that would need to be cleared to provide space for worksites. Therefore, NJDEP’s incorporation of a temporal term into the project purpose was not arbitrary and capricious. c. Conclusions Regarding Threatened or Endangered Species in the Skillman Loop The Foundation alleges that NJDEP ignored reports by the Princeton Ridge Coalition that the project would adversely affect the Red-shouldered Hawk and Barred Owl and that it failed to impose conditions in the Freshwater Wetlands Individual Permit for the Skillman Loop to address these impacts. A Freshwater Wetlands Individual Permit may be issued only if NJDEP determines that the regulated activity “[w]ill not destroy, jeopardize[,] or adversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continued existence of a local population of a threatened or endangered species . NJDEP stated in its Staff Summary Reports, “[t]he project right-of-way is documented and suitable habitat for ... Barred Owl, Red-shouldered Hawk, Wood Turtle, Indiana Bat, and Northern Long-eared Bat.” In the Freshwater Wetlands Individual Permit for the Skill-man Loop, NJDEP imposed conditions to protect most of the enumerated species but not the Barred Owl or Red-shouldered Hawk. Nevertheless, NJDEP stated in its Staff Summary Report that “[provided the conditions of the permits are followed ... no adverse impacts are anticipated upon threatened/endangered species.” To explain why it did not impose conditions to protect the species, NJDEP filed with this Court affidavits from a staff member who explained her review of Transco’s application and the Foundation’s reports, and her consideration of factors such as limited sightings of the species, small sizes of the wetlands, and fragmentation of habitat because of open areas and neighboring homes. Based on these considerations, NJDEP determined it would not impose conditions on the permit regarding the Barred Owl or Red-shouldered Hawk. The Foundation argues that NJDEP’s submission constitutes an attempt to supplement the administrative record after the fact. The administrative record is supposed to reflect the information available to the decision maker at the time the challenged decisions were made, as well as the rationale for why the agency acted as it did, but “since the bare record may not disclose the factors that were considered or the [agency’s] construction of the evidence,” it is sometimes appropriate to look to further explanation from agency officials to ascertain this rationale. Here, the affidavits explain staff review conducted ■prior to issuance of the permit. Therefore, the submissions do not constitute post hoc rationalization of agency action. The Foundation has not demonstrated that NJDEP failed to consider potential adverse impacts in issuing the Freshwater Wetlands Individual Permit for the Skillman Loop. d. Public Interest Analysis To issue a Freshwater Wetlands Individual Permit, NJDEP must determine the proposal is “in the public interest” on the basis of seven factors. The Foundation argues NJDEP failed to consider five of the seven factors: The public interest in preservation of natural resources and the interest of the property owners in reasonable economic development ...; The extent and permanence of the beneficial or detrimental effects which the proposed regulated activity may have on the public and private uses for which the property is suited; The quality and resource value classification pursuant to N.J.A.C. 7:7A-2.5 of the wetland which may be affected and the amount of freshwater wetlands to be disturbed; The economic value, both public and private, of the proposed regulated activity to the general area; and The functions and values provided by the freshwater wetlands and probable individual and cumulative impacts of the regulated activity on public health and fish and wildlife.... NJDEP did not fail to consider these factors. Regarding the first factor, the record shows consideration of impact on landowners, surrounding communities, and the environment. For example, NJDEP sought to minimize any adverse economic impact by requiring the use of existing rights-of-way and areas adjacent and the installation and modification of compressors within existing compressor station facilities. As for the second factor, NJDEP considered the extent of any detrimental effects and required Transco to implement best management practices during construction and restoration to limit disturbance to the immediate construction and restoration period and avoid permanent detrimental effects. Likewise, regarding the third factor, NJDEP reviewed submissions, inspected sites to verify wetland and water boundary lines, and made wetlands resource value classifications as set forth in the Letters of Interpretation. In determining whether the proposal is in the public interest, NJDEP considered that wetlands in the Pleasant Run Loop were not of exceptional resource value, and that certain wetlands in the Skillman Loop were of exceptional resource value. Similarly, with respect to the proposed activity’s public and private economic value, NJDEP found that the project would provide public and private economic value by expanding Transco’s pipeline system capacity and serving end-users. Finally, the record shows NJDEP considered the functions and values provided by the freshwater wetlands and probable impact of the activity on public health and fish and wildlife. NJDEP examined the wetlands’ fishery resources, resource value classification, and its role as habitat for endangered and threatened species. The Department also considered the scale and duration of disturbance of the wetlands, and whether the proposed activity would discharge toxic effluent or degrade ground or surface water. The record rebuts the Foundation’s charge that NJDEP reached its public interest determination without considering the appropriate factors. We therefore hold that NJDEP did not act arbitrarily or capriciously in issuing the Freshwater Wetlands Individual Permits. 3. Flood Hazard Area Individual Permits The Foundation claims that NJDEP erred by (1) impermissibly issuing the Flood Hazard Area Individual Permit for the Skillman Loop because the Flood Hazard Area Control Act also prohibits the issuance of permits for activities that would adversely affect state threatened or endangered species and their habitats; and (2) improperly determining that Tran-sco met the requirements of a hardship exception for the permits. Regarding the first allegation, the Flood Hazard Area Control Act, similar to the Freshwater Wetlands Protection Act, requires NJDEP to determine that any proposed activity will not adversely affect threatened or endangered species or their habitats before issuing a Flood Hazard Area Individual Permit. The Foundation alleges that NJDEP failed to consider the expert reports, which concluded that the clearing of forest canopy over riparian zones for construction would increase fragmentation of mature forest and thus damage the habitat of the Red-Shouldered Hawk and the Barred Owl. The record shows that NJDEP considered the expert reports because, after the Foundation submitted its expert reports, in a March 11, 2015, letter, NJDEP directed Transco to address the Department’s concern of “significant adverse impacts” on habitat areas of threatened or endangered species and to consider alternative construction methods. In a March 17, 2015, letter, Transco addressed NJDEP’s concern by developing “a unique construction approach” that allowed Transco to cut “25 feet off of a typical 75 foot [worksite] corridor through environmentally sensitive areas” so that fewer trees would be removed and the impact of construction on the forest would be “half of what is typically required.” That NJDEP directed Transco to revise its application and address the Department’s concerns demonstrates NJDEP considered potential adverse environmental impact on habitats. Therefore, the grant of a Flood Hazard Area Individual Permit for the Skillman Loop was not arbitrary or capricious. As to the second allegation, the Foundation argues that NJDEP incorrectly determined that Transco met the requirements of a hardship exception for the Flood Hazard Area Individual Permits. Transco had requested hardship exceptions in its applications because the Skill-man Loop would affect 13.2 acres of riparian zone vegetation, and Pleasant Run Loop 7.54 acres, both exceeding regulatory limits. A hardship exception requires the applicant to demonstrate: (1) Due to an extraordinary situation of the applicant or site condition, compliance with this chapter would result in exceptional and/or undue hardship for the applicant; (2) The proposed activities will not adversely affect the use of contiguous or nearby property; (3) The proposed activities will not pose a threat to the environment or to public health, safety, or welfare; and (4) The hardship was not created through the action or inaction of the applicant or its agents. In addition, one or more of the following requirements must be met: 1. The Department determines that there is no feasible and prudent alternative to the proposed project, including not pursuing the project, which would avoid or substantially reduce the anticipated adverse effects of the project, and that granting the hardship exception would not compromise the reasonable requirements of public health, safety and welfare, or the environment; 2. The Department determines that the cost of compliance with the requirements of this chapter is unreasonably high in relation to the environmental benefits that would be achieved by compliance; and/or 3. The Department and applicant agree to one or more alternative requirements that, in the judgment of the Department, provide equal or better protection to public health, safety and welfare and the environment. Further, because the proposed construction would cross regulated waters, NJDEP must find that the construction of an open trench through the riparian zone is necessary to install the pipeline. NJDEP’s grant of hardship exceptions was not arbitrary or capricious. Although neither New Jersey regulations nor case law defines the term “hardship” as used here, state regulations indicate that the nature of the hardship may be economic, related to impact from floods, or otherwise subject to NJDEP’s determination. NJDEP determined that Transco addressed all the requirements, namely, that (1) there was not a feasible and prudent alternative;' (2) the method of construction was necessary for safety; (3) granting the exception would not compromise reasonable requirements of public health, safety and welfare, or the environment; and (4) requiring compliance would impose a hardship on Transco, which Transco did not create through action or inaction. Given these determinations, we hold that the Department did not act arbitrarily or capriciously in granting the hardship exceptions to the Flood Hazard Area Individual Permits. 4.Grant of Minor Modification to the Freshwater Wetlands Individual Permit for the Skillman Loop The Foundation challenges NJDEP’s grant of a minor modification for Transco’s Freshwater Wetlands Individual Permit for the Skillman Loop as contrary to New Jersey regulation. After hard rock and boulders under wetlands in the Princeton Ridge damaged drilling equipment, Transco sought a minor modification to the permit to use a different drilling method than the method NJDEP had originally permitted. By regulation, a modification of the Freshwater Wetlands Individual Permit is “minor” if it involves [a] change in materials, construction techniques, or the minor relocation of an activity on a site, if the change is required by another permitting agency. However, this change is not a minor modification if the change would result in additional wetland, State open water or transition area impacts over those of the original permit or waiver. In granting the minor modification, NJDEP concluded FERC was the requisite “permitting agency” that required the change, because in approving the particular route of the Skillman Loop, FERC implicitly required the change in drilling technique to maintain the route. NJDEP also concluded the change in drilling method would not result in additional disturbance. This challenge is not properly before us. At the time of the filing of the petition, the challenged agency action must be ripe for review. The Foundation petitioned for review on May 8, 2015, but the minor modification was not applied for until May 29, 2015, and granted on June 4, 2015. Based on the foregoing, we hold NJDEP did not deprive the Foundation of sufficient opportunity to comment and did not act arbitrarily or capriciously in issuing permits and other authorizations. We further hold the challenge of the minor modification for the Freshwater Wetlands Individual Permit of the Skillman Loop is not properly before this Court. C. Pennsylvania The Riverkeeper raises two challenges to PADEP’s issuance of a Water Quality Certification: (1) PADEP failed to review an environmental assessment prepared by Transco before issuing the Water Quality Certification, as required by state regulations; and (2) the materials that PADEP did review were substantively insufficient. The Riverkeeper has not demonstrated prejudice from these alleged errors. 1. Sequence of Agency Action The Riverkeeper’s first challenge involves whether PADEP was required to engage in an environmental review prior to issuing a Water Quality Certification, or whether PADEP may, as it did here, postpone environmental review until after a Water Quality Certification has been issued. Although PADEP has not published any procedures for issuing Water Quality Certifications, applicants for the Chapter 105 permits who are required to obtain Water Quality Certifications must “prepare and submit” an environmental assessment for PADEP’s review. The River-keeper infers from this requirement that PADEP must review an environmental assessment prepared as part of an application for a Water Quality Certification before issuing a Certification. Based on this inference, and because PADEP did not do so, the Riverkeeper alleges that PADEP erred by failing to review an environmental assessment prior to issuing a Water Quality Certification to Transco. PADEP argues that for complex projects that require a large number of state and federal permits to ensure compliance with state water quality standards — such as interstate natural gas pipelines — this sequence is not mandatory and would cause unnecessary delay if strictly followed. The Riverkeeper has failed to demonstrate that it suffered harm from the sequence of PADEP’s permitting actions. According to FERC’s certificate, Transco could not begin construction until it obtained all applicable authorizations required under federal law. One of these federal authorizations, the Water Quality Certification, was conditioned on the issuance of, inter alia, a Chapter 105 Permit. Prior to issuing a Chapter 105 Permit, PADEP was required to review an environmental assessment prepared by Tran-sco. Thus, construction could not begin until after PADEP had reviewed an environmental assessment, regardless of whether this review occurred before the Water Quality Certification was issued. Because environmental review was required before construction could begin, the Riverkeeper was not harmed by the timing of the required review, and PADEP did not act arbitrarily or capriciously. The Riverkeeper alleges that as a result of PADEP’s failure to review the environmental assessment prior to issuing the Water Quality Certification, FERC prematurely authorized tree clearing activities. According to the Riverkeeper, in delaying review of the environmental assessment, PADEP postponed substantive determinations until after the issuance of the Water Quality Certification, which allowed trees to be felled in contravention of Pennsylvania water quality standards. The record does not support the Riverkeeper’s view of the timeline of events. In fact, FERC authorized tree clearing several weeks before PADEP issued the Water Quality Certification. Therefore, the Water Quality Certification could not have led to tree clearing because such clearing was approved without a Certification. Moreover, the Riverkeeper is incorrect in assuming that tree-clearing is implicated by PADEP’s substantive water quality determinations: the Army Corps of Engineers stated that the tree-clearing activity for which Transco sought authorization would not trigger the need for permits under the Clean Water Act. FERC designated the tree-clearing activity as “pre-construction activity,” while FERC’s certificate requires a Water Quality Certification only for “construction activity.” This suggests that FERC allows tree-clearing activity to be authorized without Transco obtaining any Clean Water Act permits. Thus, there is no nexus between the tree clearing activity and the Water Quality Certification, and the Riverkeeper’s challenge fails. 2. Sufficiency of Factfinding The Riverkeeper alleges that PADEP relied on an incomplete environmental assessment from Transco and failed to correct the assessment’s deficiencies prior to issuing the Water Quality Certification. PADEP and Transco counter that the majority of the Riverkeeper’s arguments relate not to the issuance of the Water Quality Certification, but the issuance of the Chapter 105 Permit. We find this argument unavailing. Because the Chapter 105 Permit was a condition of the Water Quality Certification, it is inextricably intertwined with the Water Quality Certification. Nevertheless, because the River-keeper does not challenge the Chapter 105 Permit specifically and argues only that the Water Quality Certification itself was improperly issued, we will address the Riverkeeper’s challenges only as they pertain to the issuance of the Water Quality Certification. The Riverkeeper alleges two problems with PADEP’s environmental review: (1) PADEP relied on incorrect wetlands classifications without gathering data necessary to correct these classifications; and (2) construction activity was improperly authorized because the faulty wetlands classifications led PADEP to ignore construction impacts on exceptional value wetlands. We will consider these arguments in turn. a. Wetlands Classifications Under Pennsylvania regulations, classifying a wetland as “exceptional value” triggers a number of regulatory protections, including a more stringent permitting process that disallows construction where construction will have an “adverse impact” on these wetlands. The River-keeper contends that Transco improperly classified wetlands in the application it submitted to PADEP for a Water Quality Certification, because Transco (1) used incorrect classification terms, and (2) misca-tegorized wetlands that are of “exceptional value” as belonging to a lesser protected category. As evidence, the Riverkeeper cites to a table in an environmental assessment prepared by Transco that identified affected Pennsylvania wetlands and their state classifications. This table identifies wetlands as “ordinary,” “intermediate,” “exceptional,” and “other.” As the River-keeper correctly points out, these terms are not used by PADEP, which classifies wetlands either as “exceptional value” or “other.” The Riverkeeper argues that Transco’s incorrect classifications frustrated PADEP’s ability to determine the correct classification for the affected wetlands and adhere to state water quality standards. In addition, the Riverkeeper alleges that at least eleven wetlands affected are “exceptional value” wetlands but were marked as “ordinary” or “intermediate” in Transco’s table. According to the River-keeper, PADEP’s failure to address these problems is evidence that it has acted arbitrarily and capriciously. To prevail in its petition, the Riverkeeper must show not only that an error was made but that the error in question prejudiced the Riverkeeper in some way. In this instance, the Riverkeeper can only claim to have suffered prejudice from Transco’s classifications if PADEP actually relied on those classifications; otherwise, the error, if any, was harmless. The prejudice the Riverkeeper alleges is simple: PADEP would not have issued the Water Quality Certification if Transco had properly classified wetlands in its environmental assessment. The Riverkeeper’s argument falls short. PADEP is not required to review a project’s effect on wetlands prior to issuing a Water Quality Certification. In this case, a review was required before PADEP could issue the Chapter 105 Permit, and Transco had to obtain the Chapter 105 Permit as a condition of the Water Quality Certification. Thus, while Transco may have submitted miscategorized information for the Water Quality Certification, that submission was of no consequence since a full review of the appropriate wetland categories was conducted before the Chapter 105 Permit was issued. PADEP had ample time and opportunity to request that Tran-sco remedy any shortcoming in analysis during these review processes, and the Riverkeeper also had the opportunity to submit its comments on the Chapter 105 Permit as well as other state permits not at issue. No additional review was required before PADEP could issue the Water Quality Certification. There is nothing in the record to indicate that PADEP relied on Transco’s miscategorized submission in issuing the Certification. Therefore, we hold that any error in Transco’s initial classification of wetlands did not prejudice the Riverkeeper. Because the Riverkeeper has not demonstrated that PADEP relied on these classifications, we need not address the Riverkeeper’s argument that PADEP failed to collect and analyze the necessary data to make appropriate wetlands classifications following their receipt of Transco’s environmental assessment. b. Authorization of Construction Activity The Riverkeeper also alleges that PADEP erred in authorizing construction activity that violates state water quality standards. This challenge is broader than the Riverkeeper’s challenge regarding FERC’s authorization of tree-clearing: rather than arguing that a sequencing error resulted in some particular activity, the Riverkeeper here alleges that any construction that would follow the issuance of a Water Quality Certification violates Pennsylvania water quality standards. The Riverkeeper contends that this is true because any construction impact on an exceptional value wetland is “adverse.” According to the Riverkeeper, because construction could not begin without the issuance of the Water Quality Certification, and construction would adversely affect what the Riverkeeper alleges are exceptional value wetlands, PADEP’s decision to issue a Water Quality Certification authorized construction activity that violated Pennsylvania water quality standards. However, PADEP itself has no power to “authorize” construction of interstate -natural gas facilities because the only government entity that may do so is FERC. While FERC would not allow construction to occur without a Water Quality Certification, the Certification is only relevant because- it is required by FERC’s certificate of public convenience and necessity. The Natural Gas Act grants FERC exclusive authority to authorize construction by issuing a certificate of public convenience and necessity, as FERC did here. Any interested party may file a petition with FERC for a hearing on the issuance of a certificate, and we note that the Riverkeeper did participate in such a hearing. In contrast, PADEP’s role in the permitting process is to certify that any construction that occurs is in accordance with Pennsylvania water quality standards. PADEP did so here by requiring Transco to obtain various state permits and submit to the review processes associated with these permits. Because the Riverkeeper has not shown that it was prejudiced by PADEP’s permitting actions, we see no reason to disturb PADEP’s decision to issue the Water Quality Certification. VI. Conclusion For the foregoing reasons, we conclude NJDEP and PADEP did not act arbitrarily or capriciously in issuing permits and related authorizations to Transco. We decline to address the challenge of NJDEP’s grant of a minor modification to the Freshwater Wetlands Individual Permit of the Skillman Loop. Accordingly, we will deny the petitions. . 15 U.S.C.'§§ 717-717z. . Id. § 717f. .Id. . Transcontinental Gas Pipeline Co., LLC, 149 FERC ¶ 61,258, 62,676 (2014); see Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999); 90 FERC ¶ 61,128 and 92 FERC ¶ 61,094 (2000) (clarifying policy). . See Islander East Pipeline Co., Algonquin Gas Transmission Co., 102 FERC ¶ 61,054 (2003) ("The Commission routinely issues certificates for natural gas pipeline projects subject to the federal permitting requirements of the ... [Clean Water Act].”). . 42 U.S.C. §§ 4321-4370L . 33 U.S.C. §§ 1251-1388. . 42 U.S.C. § 4332; see 15 U.S.C. §§ 717b-1(a), 717n(b)(l); 40 C.F.R. §§ 1501.1-.8 (implementing NEPA regulations); 18 C.F.R. §§ 380.1-.16 (implementing NEPA regulations for FERC actions). . 15 U.S.C. § 717b(d). . See 33 U.S.C. § 1311. . See id. §1313. . Id. § 1344. . Id. § 1341. . Id. § 1341(a)(1), (d). . See, e.g., Lake Erie All. for Prot. of Coastal Corridor v. U.S. Army Corps of Eng’rs, 526 F.Supp. 1063, 1074 (W.D. Pa. 1981) aff'd, 707 F.2d 1392 (3d Cir. 1983); Roosevelt Campobello Int’l Park Comm’n v. U.S. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982). .N.J. Stat. Ann. § 13:9B-l-30; 33 N.J. Reg. 3045(a); N.J. Admin. Code § 7:7A-2.1(c); Memorandum of Agreement between the New Jersey Department of Environmental Protection and Energy and the United States Environmental Protection Agency (1993). . Transcontinental Gas Pipe Line Co., LLC, 149 FERC ¶ 61,258, 62,687 (2014). . N.J. Admin. Code § 7:7A-3.1 (2008). . Transco submitted the Declaration of John B. Todd, who serves as project manager; Todd indicated that construction along both Skillman and Pleasant Run Loops is between 93 to 100% complete in regulated and non-regulated areas. . Energy Policy Act of 2005, Pub. L. No. 109-58, Sec. 313, 119 Stat. 594, 689-90. . 15 U.S.C. § 717r(d)(l) (2005). This amended section is also referred to as “Section 19(d)” based on where it appears in the Natural Gas Act. . See 33 U.S.C. § 1251(b). . Id. § 1341(a)(1). . Id. §§ 1311, 1316, & 1317. . See id. § 1251(a) (presenting the Clean Water Act’s goals as a matter of "national policy”). . 15 U.S.C. § 717b(d). . Id. § 717r(d)(l). . See Islander East Pipeline Co. v. Conn. Dep’t Envt’l Prot., 482 F.3d 79, 85 (2d Cir. 2006) (discussing the legislative history of the judicial review provision); see also The Energy Policy Act of 2005: Hearing Before the H. Subcomm. on Energy and Air Quality of the Comm. on Energy and Commerce, 109th Cong. 420 (2005) (statement of Donald F. Santa, Jr., President, Interstate Natural Gas Association of America) (observing that “[although state regulatory action [is] preempted” by the Natural Gas Act, "state action pursuant to federally delegated authority” is not, and prior to passage of the Natural Gas Act's amendments, review of state permitting decisions could "frustrate pipeline projects already found by FERC to meet the public convenience and necessity.” (internal quotation marks omitted)). . N.J. Admin. Code § 7:7A-2.1(d). . Id. § 7:7A-7.2(b)(3). . 33 U.S.C. § 1341(d). . N.J. Admin. Code § 7:7A-2.1; see, e.g., id. §§ 7:7A-4.3(b)(8), (9), 7.2(b)(10). . Id. § 7:7A-3.1(h). . Marcavage v. Nat’l Park Serv., 666 F.3d 856, 862 n.1 (3d Cir. 2012) (citing Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987)). . Decker v. Nw. Envtl. Def. Ctr., - U.S. -, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013) (quoting United States v. Juvenile Male, 564 U.S. 932, 936, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011)). . Int’l Bhd. of Boilermakers, 815 F.2d at 915-16 n.3. . Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985) (citing Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). . Decker, 133 S.Ct. at 1335 (quoting Knox v. Serv. Emps. Int’l, - U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)). . In re Cont'l Airlines, 91 F.3d 553, 558 (3d Cir. 1996); Isidor Paiewonsky Assocs. v. Sharp Props., Inc., 998 F.2d 145, 152 (3d Cir. 1993). . N.J. Admin. Code § 7.7A-15:16(c)-(f); see N.J. Admin. Code § 7:13-10.2(u)(5); N.J. JA 18-19, 35-37 ("The permittee shall monitor forested and/or shrub scrub wetland mitigation projects for 5 full growing seasons and emergent wetland or State open water mitigation projects for 3 full growing seasons beginning the year after the mitigation project has been completed ... The permittee shall monitor the riparian project for at least 3 years beginning the year after the riparian zone compensation project has been completed.”) (Freshwater Wetlands Individual Permits and Flood Hazard Area Individual Permits, Pleasant Run Loop and Skillman Loop). . See Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (citing Church of Scientology of Cal. v. U.S., 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). . U.S. Const. Amend. XI. . See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). . See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). . See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). . See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883). . See College Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 686-87, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (holding that while states may not constructively waive immunity to Lanham Act claims based on term in Trademark Remedy Clarification Act, waiver may be a proper condition on authority granted by Congress that the state would not otherwise have). . Id.; see Petty v. Tenn.-Mo. Bridge Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); see also South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (holding that Congress may attach conditions to the receipt of federal funds). . Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.). . MCI v. Bell Atlantic Pennsylvania, 271 F.3d 491 (3d Cir. 2001). . MCI, 271 F.3d at 510. . College Sav. Bank, 527 U.S. at 675, 119 S.Ct. 2219 (citing Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857)). . MCI, 271 F.3d at 506. . 482 F.3d 79 (2d Cir. 2006). . Islander, 482 F.3d at 90. . Id. . 33 U.S.C. § 1341(a)(1). . See 15 U.S.C. § 717b(d) (providing that the NGA does not affect the rights of states under the Clean Water Act); id. § 717f(e) (allowing FERC to attach reasonable conditions to a certificate of public convenience and necessity). . MCI, 271 F.3d at 516; see Islander, 482 F.3d at 93-94. . Motor Vehicle Mfrs. Ass'n of the 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) (internal quotation marks omitted). . 5 U.S.C. § 706. . Shinseki v. Sanders, 556 U.S. 396, 406, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) (comparing a similarly worded provision applying to appeals of Veterans Affairs claims decisions). . See Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964). . Sanders, 556 U.S. at 409, 129 S.Ct. 1696. . See Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 67, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). . N.J. Admin. Code §§ 7:7A-12.1, .3, & .4. . Id. § 7:7A-12.3(d). . Id.; see In re Freshwater Wetlands Gen. Permits, 372 N.J.Super. 578, 860 A.2d 450, 461-462 (N.J. Super. Ct. App. Div. 2004). . Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008). . Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd., 252 F.3d 246, 265 (3d Cir. 2001) (noting the agency was required to consider the comments but was “not required to follow the comments”). . NJ. Admin. Code § 7:7A-7.2(b). . Id. § 7:7A-7.4(c). . Id. § 7:7A-7.5. . Id. § 7:7A-7.4. . Pet. Br. 46. . N.J. Admin. Code § 7:7A-1.4 (emphasis added). . See N.J. JA 1302 (NJDEP Staff Summary Report, Pleasant Run Loop). . E.g., Transcontinental Gas Pipe Line Co. LLC, 149 FERC ¶ 61,258, 62,686 (2014) ("Back Brook ... will be crossed within a 48 hour period ... which will maintain water flow during construction and avoid in-stream construction impacts.”). . N J. Admin. Code § 7:7A-7.2(b)(3). . N.J. JA 1426 (Freshwater Wetlands Individual Permit, Skillman Loop). . Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 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)); see Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50, 103 S.Ct. 2856. . N.J. Admin. Code § 7:7A-7.2(b)(12). . Id. . N.J. Admin. Code § 7:13-10.6(d). . N.J. Admin. Code § 7:13-10.2, Table C, Maximum Allowable Disturbance to Riparian Vegetation. .Id. § 7:13-9.8(b). . Id. § 7:13-9.8(a), 10.2(s). . Id. § 7:13-10.2(k)(l)(i). . See id. § 7:13-9.8. . Id. § 7:7A-14.3(c)(4) (emphasis added). .See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir. 1989) (agency action that was not final at the time of filing of petition may only be reviewed upon the filing of another petition); W. Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir. 1985) (court lacked jurisdiction over a challenge to a now-final agency action that was filed before action became final); Pennzoil Co. v. FERC, 645 F.2d 394, 398 (5th Cir. 1981) (requirement that an agency’s action be ripe for judicial review before merits of any review petition will be addressed is one which applies to action of other agencies as well as that of FERC). . 25 Pa. Code § 105.15(b) (2011). . See Clean Water Act Section 401 State Water Quality Certification: A Water Quality Protection Tool for States and Tribes, EPA Office of Wetlands, Oceans and Watersheds, 25 (April 2010) (stating that states are not required to implement Water Quality Certification procedures). . See Tenn. Gas Pipeline Co. LLC. v. Delaware Riverkeeper Network, 921 F.Supp.2d 381, 387-88 (M.D. PA. 2013). . "Exceptional value” wetlands are those that serve as habitat for a threatened or endangered species, or are hydrologically connected to, or lie within one half mile of, such a wetland; are located in or along the floodplain of a wild trout stream or a national wild or scenic river, or such a tributary; are located along an existing drinking water supply; or are located in an area designated as a "natural” or "wild” area within a state forest or park or a designated federal wilderness or natural landmark. 25 Pa. Code § 105.17(1). . See id. § 105.18a(a). . Id. § 105.17. . See Pa. Trout v. Dep't Envt’l Prot., 863 A.2d 93, 98 (Pa. 2004) (discussing requirements for wetlands classifications). . See supra Section IV.A. . See 25 Pa. Code § 105.14(b)(13) (requiring determination of impact on wetlands for Chapter 105 permits); cf. id. § 92a.21(d)(3) (allowing PADEP to require an applicant for an NPDES permit to provide information on a project’s wetlands impact). .See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 302-04, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) (citing 15 U.S.C. § 717f(c)). . 15 U.S.C. § 717f(c). . See 15 U.S.C. § 717n(e); 18 C.F.R. § 156.10.

Precon Development Corp. v. United States Army Corps of Engineers

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined. OPINION DUNCAN, Circuit Judge: This appeal arises out of a determination made by the Army Corps of Engineers (the “Corps”) that it has jurisdiction, under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., over 4.8 acres of wetlands located on Precon Development Corporation’s (“Precon” ’s) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon’s application for a CWA permit to impact the wetlands through development. Precon appealed these determinations to the United States District Court for the Eastern District of Virginia under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the parties cross-moved for summary judgment. The district court granted summary judgment to the Corps on September 4, 2009, upholding both its jurisdictional determination and its permit denial. On appeal, Precon challenges only the Corps’ jurisdictional determination. Because we find the Corps’ administrative record inadequate to support its conclusion that it had jurisdiction over Precon’s wetlands, we vacate the district court’s grant of summary judgment and remand to the district court with instructions to remand to the Corps for reconsideration of its jurisdiction over the wetlands in question. I. A. Precon is the developer of a 658-acre Planned Unit Development known as Edinburgh (the “Edinburgh PUD”), located in Chesapeake, Virginia. The city of Chesapeake is in southeastern Virginia, a region historically comprised of forested wetlands. Many of these wetlands ultimately drain into the Northwest River, which flows south through the region, passing within five to ten miles of the Edinburgh PUD. The Edinburgh PUD is a mixed-use development that contains both residences and retail establishments. Its construction began in 2001. Precon acquired the Edinburgh PUD from RGM Corporation (“RGM”), the initial developer, in 2003. Since 2003, Precon has pursued the development of several residential areas within the Edinburgh PUD. Between 2004 and 2006, the Corps granted Precon permits to fill 77 acres of wetlands in order to proceed with these developments, based in part on an understanding that this was the totality of the development planned for the Edinburgh PUD. In 2006, Precon announced a plan to develop ten additional residential lots in the Edinburgh PUD. The original plan for developing these lots required filling 10.7 acres of wetlands. However, after discussions with the Corps in which the Corps expressed its displeasure that Precon was separately pursuing additional residential development, Precon limited its proposed design so that it would only impact 4.8 acres of wetlands (the “Site Wetlands”). Precon further suggested that it did not believe the Corps had jurisdiction over these 4.8 acres. The Corps disagreed. A detailed explanation of the geography of the Site Wetlands is critical to understanding the parties’ dispute. The Site Wetlands are in the southwest quadrant of the Edinburgh PUD and sit adjacent to a man-made drainage ditch approximately 2,500 feet long (the “2,500-foot Ditch”). The Site Wetlands do not, however, abut the 2,500-foot Ditch, because when the 2,500-foot Ditch was excavated through the surrounding wetlands in 1977, “[m]ate-rial excavated ... was side-cast on the east bank and therefore creates a berm between the [Site Wetlands] and the ditch.” J.A.264. The 2,500-foot Ditch, which flows seasonally — i.e., from late winter to early spring — joins a larger, perennial drainage ditch, the Saint Brides Ditch, approximately 900 feet downstream of the Site Wetlands. The Saint Brides Ditch runs along the western boundary of the PUD for approximately 3,000 feet before continuing to meet a second perennial tributary about two and one-half to three miles south of the Edinburgh PUD. These merged tributaries flow into the Northwest River approximately three to four miles downstream. The 4.8-acre Site Wetlands comprise only a small portion of the total wetland acreage within the Edinburgh PUD. There are, in total, 166 acres of wetlands in the PUD that are part of the Northwest River watershed. The remainder of the 166 acres are concentrated along the western edge of the PUD and surround the 2,500-foot Ditch and the Saint Brides Ditch. B. In 2007, Precon applied to the Corps for a jurisdictional determination as to whether the Site Wetlands were covered by the CWA, such that a permit would be needed before they could be impacted by development. Precon further requested a permit to fill the Site Wetlands if the Corps determined that a permit was required under the CWA. On May 31, 2007, the Corps determined that it had jurisdiction over the Site Wetlands, on the ground that the wetlands sat adjacent to a ditch which qualified as “waters of the United States.” J.A. 202. It subsequently denied Precon’s request for a CWA permit. Precon administratively appealed both determinations. Around this same time, the Corps and the Environmental Protection Agency (“EPA”) jointly issued new guidance (the “Rapanos Guidance,” issued June 5, 2007) on CWA jurisdiction following the Supreme Court’s jurisdiction-limiting decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In light of the Rapanos Guidance, a Corps appeals officer remanded the Corps’ jurisdictional determination to the Corps’ Norfolk District for reconsideration. i. The Rapanos Guidance instructs Corps and EPA personnel on how to make jurisdictional determinations that comply with the new rules for CWA jurisdiction announced by the Supreme Court in Rapanos. , The Guidance explains that post Rapanos, wetlands, such as the Site Wetlands, which are “adjacent to, but not directly abutting, a relatively permanent tributary (e.g., separated from it by uplands, a berm, dike or similar feature),” are no longer automatically subject to the Corps’ jurisdiction. J.A. 484. Pursuant to the Supreme Court’s decision, the Rapanos Guidance instructs the Corps to evaluate such wetlands, along with “similarly situated” wetlands in the area, in order to determine whether they have a “significant nexus” with traditional navigable waters. Id.; see also Rapanos, 547 U.S. at 780, 126 S.Ct. 2208. The first step in evaluating whether a significant nexus exists, according to the Rapanos Guidance, is to determine the region to be evaluated for significance. To do so, the relevant tributary must first be identified. A “tributary” for these purposes is defined as “the entire reach of the stream that is of the same order (i.e., from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream).” J.A. 486. The pertinent section of the relevant tributary is known as the “relevant reach.” Id. at 261. The Corps must next identify all wetlands adjacent to the relevant reach. Together, the relevant reach and its adjacent wetlands constitute the area to be evaluated for a significant nexus with a traditional navigable water. The Rapanos Guidance explains that such evaluation should focus on the flow and functions of the relevant reach and adjacent wetlands. It instructs the Corps to specifically consider “volume, duration, and frequency” of flow in the relevant reach, as well as hydrologic information, physical characteristics, and functions performed by the relevant reach and its wetlands. Id. at 487. The Guidance then instructs the Corps, “after assessing the flow characteristics and functions,” to evaluate whether these factors “are likely to have an effect that is more than speculative or insubstantial on the chemical, physical, and biological integrity of a traditional navigable water.” J.A. 487. It emphasizes that “[a]s the distance from the tributary to the navigable water increases, it will become increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather than a speculative or insubstantial nexus with a traditional navigable water.” Id. ii. Upon remand and application of this new guidance, the Corps upheld its finding of jurisdiction over the Site Wetlands. Because the Site Wetlands do not abut — -but only sit adjacent to — the 2,500-foot Ditch, the Corps did not treat them as automatically subject to jurisdiction, but instead, as instructed by the Rapanos Guidance, attempted to explain its rationale for upholding jurisdiction through a “Significant Nexus Determination.” First, the Corps’ Significant Nexus Determination identified the relevant reach as the 2,500-foot Ditch and the Saint Brides Ditch, collectively. The Corps considered these ditches collectively because the Saint Brides Ditch and the 2,500-foot Ditch are, historically, part of the same naturally defined wetland drainage feature — a feature that was manipulated into discrete ditches in the late 1970s. Further, the Corps labeled both the Saint Brides Ditch, which undisputedly has perennial flow, and the 2,500-foot Ditch as “relatively permanent waters.” The Corps defines “relatively permanent waters” as tributaries that “typically flow[ ] year-round or ha[ve] continuous flow at least ‘seasonally’ (e.g., typically 3 months).” Id. at 242. The Corps found the 2,500-foot ditch to be a relatively permanent water because photographs supported the conclusion that the tributary flowed from February through April. Together, these two ditches were labeled as “a man-altered, first-order tributary to the Northwest River.” Id. at 259. The Corps then determined that the relevant reach of this tributary extended to the point, downstream 3.11 miles, where the Saint Brides Ditch joined the Pleasant Grove Swamp. In making this determination, the Corps ignored “[mjultiple man-made or manipulated drainage ditches” that carried minor flow to the Saint Brides Ditch at various points downstream of the Edinburgh PUD, and instead selected the point where the Saint Brides Ditch converged with another historically natural drainage. Id. The Corps next took up the task of identifying “similarly situated wetlands.” It first identified all 166 acres of wetlands located within the Edinburgh PUD and the Northwest River watershed as similarly situated. Although the 4.8-acre Site Wetlands are separated from the remaining approximately 161 acres of wetlands by a road that is unfinished (filled but not paved), the Corps focused on this larger area because “the 4.8 acres of wetlands function as one with the remainder of the 166 acres of on site wetlands in the Saint Brides Ditch drainage area.” Id. at 265. A berm separates these 166 acres of wetlands from the Saint Brides Ditch, but it has several breaks along its eastern edge. The Corps then identified 282 more acres of “similarly situated wetlands” adjacent to the relevant reach but not on Precon’s property. In determining that these 448 acres of wetlands should be evaluated in the aggregate, the Corps explained that the 4.8 acres of Site Wetlands and 166 acres of PUD wetlands are part of a “physical, chemical and biological connection of wetlands and streams” that exists, and “has always existed,” in the area. Id. at 267. Again in accordance with the Rapanos Guidance, the Corps’ Significant Nexus Determination analyzed the functions and flow of the Saint Brides Ditch and the 2,500-foot Ditch. With respect to the Saint Brides Ditch, the Corps noted that the channel has a dynamic storage capacity of approximately 1.2 million cubic feet of water, a channel slope of 0.04 percent, and water velocities of approximately 1.3 feet per second — all of which means that it takes a volume of water approximately four hours to move through the relevant reach. Based on these observations, the Corps found that the ditch “greatly moderates the effect of flood flows” on the Northwest River due to its large storage capacity and slow release. Id. at 263. Additionally, it concluded that this low water velocity and extended residence time allowed suspended sediments to settle out of the water. It estimated that approximately 10,540 cubic yards of sediment is stored in the relevant portion of the Saint Brides Ditch rather than downstream in the Northwest River. It explained that this filtered sediment likely includes some quantity of dissolved pollutants that are thus removed from the Northwest River, improving the drinking water and fishing quality of the river. With respect to the 2,500-foot Ditch, the Corps found that its 93,750 cubic feet of water storage capacity and substantial accumulation of woody debris allowed it to slow water velocities to 1.13 feet per second, providing “significant flood flow benefits to downstream traditionally navigable waters.” J.A. 265. Its large woody debris also allowed it to trap at least 2,083 cubic yards of sediment and organic material that would otherwise flow downstream. Decomposed organic matter from these tributaries, the Corps explained, provides a “substantial food source” to fish species in the Northwest River. Id. at 266. The Corps’ Significant Nexus Determination further explained that numerous other ditches, similar to the 2,500-foot Ditch, drain into the Saint Brides Ditch along the relevant reach, each serving similar functions. The Corps concluded that these ditches cumulatively provide significant benefits to the river below, including “retaining a significant amount of flood water/flows, removing large volumes of sediments and pollutants from the system, as well as delivering important food resources to fish and other species living and spawning in the Northwest River.” Id. at 267. The Significant Nexus Determination then analyzed the 448 acres of similarly situated wetlands. Most of these wetlands are mineral flats, which contain unique hydric soils that have large amounts of organics at the surface, allowing them to retain more water than most wetlands. Although berms “have severed the direct surface water connection” among these wetlands in many places, the Corps found that “the berm has a negligible effect on the overall ecological functions that ... all of the adjacent wetlands in the [significant nexus] determination provide to downstream [traditional navigable waters].” Id. at 271. The Corps found the berms to be neither a barrier to wildlife functions nor an inhibitor of wetland functions, and in fact explained that they provide the benefit of “allow[ing] floodwaters to be retained longer within the wetlands prior to being discharged downstream thus moderating and mitigating flood flows.” Id. The Corps also found that subsurface flows exist in the Edinburgh PUD wetlands, explaining that they slowly release groundwater into the Saint Brides Ditch. The Corps then elaborated on the wetlands’ role in flood mitigation. The 166 acres of on-site wetlands are capable of storing up to one and one-half feet of water per acre, and receive approximately 1,222,943 gallons of precipitation a year. Blackened leaves observed on-site evidence the wetlands’ prolonged water storage capabilities. The Corps further explained that expert testimony from a trial between the Corps and the previous developer, RGM, supported the conclusion that the -wetlands “slow release of water maintains base flows to the Northwest River and also moderates downstream flooding during extreme precipitation events.” Id. at 272. Moreover, one expert testified that “loss of wetlands on the Edinburgh PUD would result in a major change to the timing and routing of water from the site,” and that increased water velocities downstream “would cause erosion of sediments, increasing sedimentation and pollution of downstream waters including the Northwest River.” Id. The Corps further observed that such mineral flat wetlands rapidly cycle nutrients, sequester carbon, and help denitrify water, reducing eutrophication. The 448 acres of similarly situated wetlands were found to remove an estimated 448 to 9,403 pounds of nitrogen per acre from the water each year, and also remove an unquantified amount of pollutants and particles. Moreover, the 4.8-acre Site Wetlands and similarly situated wetlands serve as habitat for numerous species, including State endangered species, at least some of which can cross the unfinished road separating the Site Wetlands from remaining wetlands. These species use the area as “a corridor for movement between the Northwest River and points to the north and west.” Id. at 276. On the basis of this evidence, the Corps’ Significant Nexus Determination concluded that the tributaries and their adjacent wetlands have “a significant nexus that has more than a speculative or insubstantial effect on the Northwest River,” and that loss of these wetlands “would have a substantial negative impact on water quality and biological communities of the river’s ecosystem.” Id. at 277-78. Accordingly, the Corps reaffirmed its previous conclusion that it had jurisdiction over the Site Wetlands, such that Precon would be required to obtain a CWA permit before filling them. C. Precon sought judicial review of this determination, along with the Corps’ denial of its permit application, in the United States District Court for the Eastern District of Virginia. The parties filed cross-motions for summary judgment, which were referred to a magistrate judge for a Report and Recommendation (“R & R”). The district court adopted this R & R in full on September 4, 2009, granting the Corps’ motion for summary judgment and denying Precon’s motion for summary judgment. The district court found that the Corps had permissibly defined the scope of its review area as including 448 acres of similarly situated wetlands, and that the Corps’ determination that these wetlands had a significant nexus to the Northwest River was supported by substantial factual findings. The district court also upheld the Corps’ denial of a CWA permit. This appeal followed. II. On appeal, Precon challenges the district court’s finding that the Corps properly asserted jurisdiction over the Site Wetlands under the CWA. Precon argues that there are two major flaws in the Corps’ jurisdictional determination. First, it contends that the Corps’ decision to aggregate 448 acres of surrounding wetlands in determining jurisdiction was impermissible. Second, it argues that even if all 448 acres were appropriately included in the Corps’ jurisdictional determination, the Corps did not provide sufficient evidence that the connection between these wetlands and the Northwest River amounted to a significant nexus. Before reaching Precon’s two substantive arguments, we provide an overview of the Supreme Court’s jurisprudence addressing the parameters of CWA jurisdiction. We then turn to each of Precon’s contentions. A. Congress passed the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. To that end, the CWA prohibits the discharge of pollutants into navigable waters. See id. §§ 1311(a), 1362(12)(A). The CWA defines navigable waters as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Although the Corps initially construed this definition to cover only waters navigable in fact, “in 1975 the Corps issued interim final regulations redefining ‘the waters of the United States’ to include not only actually navigable waters but also tributaries of such waters” and “‘freshwater wetlands’ that were adjacent to other covered waters.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). In Riverside Bayview Homes, the Supreme Court upheld the Corps’ determination that it had jurisdiction over wetlands adjacent to navigable waters. Id. at 139, 106 S.Ct. 455. Even though the plain language of the statute did not compel this conclusion, the Court explained that by including a broad definition of “navigable waters” in the CWA, Congress “evidently intended to ... exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Id. at 133, 106 S.Ct. 455. It further reasoned that the Corps’ decision to include wetlands within its jurisdiction was a reasonable one, given wetlands’ critical importance to the health of adjacent waters. Id. at 133-34, 106 S.Ct. 455. The Supreme Court again interpreted the CWA term “navigable waters” in 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) (“SWANCC”). In SWANCC, it considered whether “isolated ponds, some only seasonal, wholly located within two Illinois counties, f[e]ll under [the CWA’s] definition of ‘navigable waters’ because they serve[d] as habitat for migratory birds.” Id. at 171-72, 121 S.Ct. 675. The Court held that these waters were simply too far removed from any navigable waters to be included within that term. Id. To distinguish these isolated ponds from the wetlands it considered in Riverside Bayview Homes, the Court explained: “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” Id. at 167, 121 S.Ct. 675. Five years later, in Rapanos, the Supreme Court revisited the issue of the Corps’ jurisdiction over adjacent wetlands. 547 U.S. at 715, 126 S.Ct. 2208. Although recognizing the continuing validity of Riverside Bayview Homes, a majority of the Court found troubling the Corps’ assertion of jurisdiction over wetlands adjacent to tributaries far away from, and unimportant to, any traditional navigable water. See id. at 726, 730-33, 106 S.Ct. 455 (plurality opinion); id. at 776, 779-80, 106 S.Ct. 455 (Kennedy, J., concurring in the judgment). Accordingly, a fractured Court proposed two different ways to limit the reach of its earlier ruling so as not to allow jurisdiction over wetlands lying alongside “remote and insubstantial” ditches and drains. Id. at 778, 106 S.Ct. 455 (Kennedy, J., concurring in the judgment). The Rapanos plurality suggested that wetlands should only fall within CWA jurisdiction when they: (1) are adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters”; and (2) have “a continuous surface connection with that water.” Id. at 742, 126 S.Ct. 2208 (plurality opinion). Justice Kennedy, concurring, found this test too limiting. Instead, he borrowed language from SWANCC to establish an alternative new test for jurisdiction over adjacent wetlands. Id. at 779-80, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). Under his formulation, when the Corps “seeks to regulate wetlands based on adjacency to nonnavigable tributaries,” it must establish that a “significant nexus” exists “between the wetlands in question and navigable waters in the traditional sense.” Id. at 779, 782, 126 S.Ct. 2208. The dissent, which drew four votes, found both of these tests too stringent. It thus suggested that in the future, jurisdiction should be established if either the plurality’s or Justice Kennedy’s test is met. Id. at 810, 126 S.Ct. 2208 (Stevens, J., dissenting). The parties here agree that Justice Kennedy’s “significant nexus” test governs and provides the formula for determining whether the Corps has jurisdiction over the Site Wetlands. We therefore do not address the issue of whether the plurality’s “continuous surface connection” test provides an alternate ground upon which CWA jurisdiction can be established. Given that the significant nexus test undisputedly controls, it bears further elaboration. Justice Kennedy derived this test from a recognition that while Congress clearly intended to allow CWA jurisdiction over “at least some waters that are not navigable in the traditional sense,” id. at 767, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment), some meaning had to be given to the term “navigable” as used in the statute, id. at 778-79, 126 S.Ct. 2208. To discern this meaning, he returned to Riverside Bayview Homes, where the Court upheld jurisdiction over some wetlands by explaining that “wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment. ...” Id. at 779, 126 S.Ct. 2208 (quoting Riverside Bayview Homes, 474 U.S. at 135, 106 S.Ct. 455). Drawing upon this purposive rationale for including certain wetlands within the term “navigable waters,” Justice Kennedy explained that “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Id. Wetlands possessing this significant nexus are those that “perform critical functions related to the integrity of other waters — functions such as pollutant trapping, flood control, and runoff storage.” Id. Accordingly, Justice Kennedy set forth the following standards for evaluating the existence of a significant nexus: [WJetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.” Id. at 780, 126 S.Ct. 2208. Justice Kennedy further explained that, in accordance with Riverside Bayview Homes, wetlands adjacent to navigable-in-fact waters necessarily satisfy this significant nexus test. Id. However, for wetlands adjacent to non-navigable tributaries, such as the Site Wetlands we consider here, the Corps must now “establish a significant nexus on a case-by-case basis.” Id. at 782, 126 S.Ct. 2208. As possible indicia of the significance of such wetlands, Justice Kennedy noted that the Corps might consider documenting “the significance of the tributaries to which the wetlands are connected,” a “measure of the significance of [the hydrological connection] for downstream water quality,” and/or “the quantity and regularity of flow in the adjacent tributaries.” Id. at 784, 786, 126 S.Ct. 2208. B. With this framework established, we turn to Precon’s substantive challenges. We review the district court’s decision to grant summary judgment de novo, S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 755 (4th Cir.2010), including its findings on an administrative record, Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 189 (4th Cir. 2009). Precon’s arguments require a careful examination of the Corps’ application of the language Justice Kennedy has engrafted into the statutory requirements of the CWA. See Rapanos, 547 U.S. at 779, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). We therefore treat compliance with Justice Kennedy’s “significant nexus” test as a question of law, as we do any question of statutory interpretation, and review for compliance de novo. See, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir.2009); cf. Kentuckians for Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (“When reviewing a particular agency action ... [t]he court is first required to decide whether the [agency] acted within the scope of [its] authority.” (internal quotations omitted and alterations in original)). However, recognizing the Corps’ expertise in administering the CWA, we give deference to its interpretation and application of Justice Kennedy’s test where appropriate. See United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (“[A]n agency’s interpretation may merit some deference whatever its form, given the ‘specialized experience and broader investigations and information’ available to the agency....”) (quoting Skidmore v. Swift, 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). i. Precon first challenges the Corps’ decision to label 448 acres of surrounding wetlands as “similarly situated” wetlands for purposes of its significant nexus determination. On this point, recognizing the deference due the Corps’ factual findings and interpretation of the phrase “similarly situated,” we uphold the Corps’ finding that 448 acres of wetlands were “similarly situated” to the Site Wetlands. Justice Kennedy’s significant nexus test clearly allows some aggregation of wetlands in determining whether a significant nexus exists. He explained that the significant nexus inquiry should focus on whether “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment) (emphasis added). However, his concurrence provided no further explanation of what “similarly situated,” or, for that matter, “region,” should be taken to mean in this context. To flesh out this concept, the Corps’ Rapanos Guidance interprets “similarly situated” to mean “all wetlands adjacent to the same tributary.” J.A. 486. A tributary, in turn, is defined as “the entire reach of the stream that is of the same order (i.e. from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream).” Id. Applying these definitions to the instant case, the Corps identified the relevant tributary as the 2,500-foot Ditch and the Saint Brides Ditch, collectively, down to the point where the Saint Brides Ditch converged with the Pleasant Grove Swamp. The Corps explained that it considered these ditches together because they were historically part of the same naturally defined wetland drainage feature before human-made ditches altered the area. The Corps then identified the 166 acres of wetlands located on the Edinburgh PUD and an additional 282 acres of wetlands outside of Precon’s property as wetlands sitting “adjacent” to this “relevant reach.” It noted that all 448 acres were part of a “physical, chemical and biological connection of wetlands and streams” that existed, “and had always existed,” in the area. Id. at 267. Precon acknowledges that the Rapanos Guidance’s interpretation of “similarly situated lands in the region” is entitled to Skidmore deference. Under Skidmore, an agency’s interpretation merits deference “to the extent that the interpretation has the power to persuade.” U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 353-54 (4th Cir.2004) (citing Skidmore, 323 U.S. at 140, 65 S.Ct. 161). Precon argues, however, that the Corps’ determination that the 448 acres were “similarly situated” is unpersuasive because (1) adjacent and abutting wetlands cannot reasonably be considered to be “similarly situated,” and (2) the Corps failed to follow its own guidance here. According to Precon, the primary flaw in the Corps’ interpretation of “similarly situated” is its equal treatment of abutting and other adjacent wetlands. Specifically, Precon argues that the plurality and Justice Kennedy in Rapanos “expressly recognize[d] that there is a significant difference in the relationship between abutting and non-abutting wetlands and their nearest ditches.” Appellant’s Br. at 46. Although the Rapanos plurality clearly found the abutting/adjacent distinction meaningful, see 547 U.S. at 740-42, 126 S.Ct. 2208, we find no evidence that Justice Kennedy, in permitting “similarly situated lands” to be included within the significant nexus analysis, intended to differentiate between abutting and other adjacent wetlands. To the contrary, his concurrence explicitly approved of the Corps’ regulatory definition of “adjacent,” which includes both those wetlands that directly abut waters of the United States and those separated from other waters “by man-made dikes or barriers, natural river berms, beach dunes and the like.” 33 C.F.R. § 328.3(c). As Justice Kennedy explained, abutting wetlands are not necessarily any more important than other adjacent wetlands because “filling in wetlands separated from another water by a berm can mean that floodwater, impurities, or runoff that would have been stored or contained in the wetlands will instead flow out to major waterways.” Rapanos, 547 U.S. at 775, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). He thus concluded that “it may be the absence of an interchange of waters ... that makes protection of the wetlands critical to the statutory scheme.” Id. Here, the Corps adopted this precise rationale in aggregating abutting and other adjacent wetlands. It explained that the berm separating the 4.8-acre Site Wetlands from the 2,500-foot Ditch did not disconnect these wetlands from surrounding ones, because it neither inhibited wildlife movement nor wetland functions. It also explained that the berm in fact provided the additional benefit of “allow[ing] floodwaters to be retained longer within the wetlands prior to being discharged downstream thus moderating and mitigating flood flows.” J.A. 271. Given this reasonable explanation for its actions, we see no error in the Corps’ decision to aggregate both abutting and adjacent wetlands in its significant nexus determination. As for Precon’s second argument, we acknowledge that it is difficult to determine whether the Corps precisely adhered to the Rapanos Guidance in identifying “similarly situated” wetlands. Specifically, it is not clear that the Guidance contemplates that multiple tributaries might appropriately be included within the “relevant reach.” Although at oral argument the Corps took the position that its determination to aggregate these two ditches was merely an application of its Rapanos Guidance to the unique geography of the area, we are not convinced that the Guidance is so flexible on this point. However, we conclude that we do not need to determine whether or not the Corps methodically adhered to its nonbinding guidance document in identifying the “similarly situated” wetlands here. Cf. J.A. 481 n.16 (footnote in the Rapanos Guidance explaining that the guidance “does not impose legally binding requirements ... and may not apply to a particular situation depending on the circumstances”). Even if the Corps deviated from its guidance, it provided reasoned grounds for doing so. The Corps explained that it decided to aggregate the wetlands surrounding both the 2,500-foot Ditch and the Saint Brides Ditch because the two ditches were, historically, part of the same naturally defined wetland drainage feature — a feature that was manipulated into discrete ditches in the late 1970s. We accept this finding as true, having no reason to believe it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Aracoma, 556 F.3d at 192 (explaining that we should be at our “most deferential” when reviewing findings of fact based on special expertise). And based on this finding, we are persuaded that the Corps acted reasonably in aggregating these two man-made ditches into a single “tributary.” There is both logical and practical appeal to treating man-made ditches that would naturally be part of the same drainage feature together. Otherwise, a property owner could avoid CWA jurisdiction simply by digging a few well-placed drainage ditches on either side of the wetlands he wished to fill. We find more questionable the Corps’ decision, after determining that it would treat these two ditches together, to include adjacent wetlands stretching over three miles downstream as “similarly situated.” However, we recognize that Justice Kennedy’s instruction — that “similarly situated lands in the region” can be evaluated together — is a broad one, open for considerable interpretation and requiring some ecological expertise to administer. On the basis of this recognition, and with no appropriate limiting principle suggested by Precon as to which wetlands could properly have been considered “similarly situated” here, we uphold the Corps’ finding that all 448 acres of non-contiguous wetlands adjacent to the 2,500-foot Ditch and the Saint Brides Ditch down to Pleasant Grove Swamp were “similarly situated.” However, the Corps’ record on this point gives us a bare minimum of persuasive reasoning to which we might defer. It only notes, somewhat conclusorily, that the Site Wetlands “continue to function as part of the entire” 448 acres. J.A. 271. We urge the Corps to consider ways to assemble more concrete evidence of similarity before again aggregating such a broad swath of wetlands. For the foregoing reasons, we reject Precon’s argument that the Corps impermissibly identified 448 acres of wetlands as “similarly situated lands in the region,” and uphold the Corps’ findings on this point. ii. We now turn to Precon’s argument that the Corps did not adequately establish the existence of a significant nexus between the Site Wetlands — along with similarly situated wetlands — and the Northwest River. The Corps’ factual findings on this point are not in dispute; rather, Precon challenges whether the Corps’ administrative record, if accepted as accurate, suffices to meet Justice Kennedy’s significant nexus test. Upon close examination of the record, we find that it contains insufficient information to allow us to assess the Corps’ conclusion that these wetlands have a significant nexus with the Northwest River, a body of water situated miles away. Precon’s primary argument is that the Corps’ record lacks any “measures” of the effects that these wetlands have on the Northwest River. And, it reasons, without such “measures,” the wetlands’ significance for the river’s health cannot be established. The Corps responds that Justice Kennedy’s significant nexus test does not require empirical or quantitative evidence of “significance,” and that the evidence it provided more than sufficed to establish a significant nexus. We have not yet had occasion to consider the evidentiary requirements of Justice Kennedy’s significant nexus test. The Sixth Circuit has most directly addressed the issue. In United States v. Cundiff, 555 F.3d 200 (6th Cir.2009), it held that Justice Kennedy’s significant nexus test does not require “ ‘laboratory analysis’ of soil samples, water samples, or ... other tests.” Id. at 211. Instead, the Sixth Circuit found that the district court had not clearly erred by finding that a significant nexus was demonstrated through qualitative, rather than quantitative, physical evidence. This evidence included expert testimony that dredging and filling of the wetlands at issue “undermined the wetlands’ ability to store water which, in turn, ... affected the frequency and extent of flooding, and increased the flood peaks in the Green River,” and caused visible acid mine runoff previously stored in the wetlands to flow more directly to the Green River. Id. at 210-11. We agree that the significant nexus test does not require laboratory tests or any particular quantitative measurements in order to establish significance. As Justice Kennedy explained, the significant nexus test is a flexible ecological inquiry into the relationship between the wetlands at issue and traditional navigable waters. See Rapanos, 547 U.S. at 779-80, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). However, in announcing this test, he clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had “significant” effects or merely “speculative or insubstantial” effects on navigable waters. Id. at 780, 126 S.Ct. 2208. Justice Kennedy’s opinion further provides specific examples of the types of evidence that might support a determination of significance. For instance, an adequate record might include documentation of “the significance of the tributaries to which the wetlands are connected,” a “measure of the significance of [the hydrological connection] for downstream water quality,” and/or “indication of the quantity and regularity of flow in the adjacent tributaries.” Id. at 784, 786, 126 S.Ct. 2208. The question is thus whether the Corps’ record contained enough physical evidence — quantitative or qualitative — to allow us to uphold its determination that a significant nexus existed here. Relying on the final example described above, the Corps asserted at oral argument that its documentation of the flow of the adjacent tributaries sufficed, even standing alone, to establish that a significant nexus existed here. According to this theory, a measurement of these tributaries’ flow adequately demonstrated that this area “help[ed] to slow flows/retain floodwaters, releasing them slowly so that downstream waters do not receive as much flow volume and velocity, all working to diminish downstream flooding and erosion,” which led to the conclusion that a significant nexus existed. J.A. 265. We cannot accept this conclusion for two reasons. First, as Precon points out, the Corps’ administrative record does not appear to contain any measurements of actual flow. Nor was counsel able to point to such measurements at oral argument. Instead, the record reflects measures of the water storage capacity and the resultant potential flow rates of the Saint Brides Ditch and the 2,500-foot Ditch, without any indication of how often this capacity is reached or how much flow is typically in the ditches. Second, even if the record had sufficiently documented flow, we do not believe that recitation of the flow of an adjacent tributary alone, absent any additional information regarding its significance, would necessarily suffice to establish a significant nexus. The significant nexus inquiry emphasizes the comparative relationship between the wetlands at issue, their adjacent tributary, and traditional navigable waters. Cf. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment) (drawing a critical distinction between wetlands with “significant” effects versus only “insubstantial” effects on navigable waters). We can therefore imagine, for example, that wetlands next to a tributary with minimal flow might be significant to a river one quarter mile away, whereas wetlands next to a tributary with much greater flow might have only insubstantial effects on a river located twenty miles away. Accordingly, in this case of wetlands approximately seven miles from any navigable water, we cannot say that recitation of the adjacent tributary’s flow, standing alone, would necessarily have sufficed. We acknowledge that the Corps’ Significant Nexus Determination did contain other physical observations about the wetlands and adjacent tributaries. However, there is no documentation in the record that would allow us to review its assertion that the functions that these wetlands perform are “significant” for the Northwest River. In particular, although we know that the wetlands and their adjacent tributaries trap sediment and nitrogen and perform flood control functions, we do not even know if the Northwest River suffers from high levels of nitrogen or sedimentation, or if it is ever prone to flooding. This lack of evidence places the facts here in stark contrast to those in Cundiff, upon which the Corps relies. There, the Sixth Circuit noted that the district court credited expert testimony about the wetlands “in relation to” the navigable river. 555 F.3d at 210-11 (emphasis added). According to that testimony, the challenged actions had undermined the wetlands’ ability to store water, which, in turn, had increased the flood peaks in the Green River. Id. Additional testimony established that acid mine runoff that had previously been stored in the wetlands flowed more directly into the river, causing “direct and significant impacts to navigation ... and to aquatic food webs” in the river. Id. at 211. There is no such testimony here. Accordingly, we must conclude that this record does not support the Corps’ determination that the nexus that exists between the 448 acres of similarly situated wetlands and the Northwest River is “significant.” Particularly given the facts of this case, involving wetlands adjacent to two man-made ditches, flowing at varying and largely unknown rates toward a river five to ten miles away, we cannot accept, without any information on the river’s condition, the Corps’ conclusion that the nexus here is significant. Justice Kennedy created the significant nexus test specifically because he was disturbed by the assertion of jurisdiction over wetlands situated along a ditch “many miles from any navigable-in-fact water,” carrying “only insubstantial flow toward it.” Rapanos, 547 U.S. at 786, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). In support of our request for further information on these wetlands’ significance, we observe that the geography of the wetlands at issue places them squarely in that category of wetlands over which jurisdiction is no longer assured. Cam-bell, one of the consolidated cases in Rapanos, involved wetlands similar to, but less remote than, the Site Wetlands. In Cam-bell, the Corps had asserted jurisdiction over 15.9 acres of forested wetlands, lying along a ditch — but separated from the ditch by a man-made berm — which eventually drained into Lake St. Claire approximately one mile downstream. Id. at 764, 126 S.Ct. 2208. Both the plurality and Justice Kennedy agreed that more evidence was needed about these wetlands’ characteristics before jurisdiction could be established. Id. at 757, 126 S.Ct. 2208 (plurality opinion); id. at 786-87, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). Given that the Site Wetlands are considerably more removed from traditional navigable waters than the wetlands at issue in Carabell, it follows that it would be even more important for the Corps to fully document the significance of their effects on navigable water. Indeed, even the Corps’ own Rapanos Guidance cautions that “[a]s the distance from the tributary to the navigable water increases, it will become increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather than a speculative or insubstantial nexus with a traditional navigable water.” J.A. 487. Recent Ninth and Sixth Circuit cases provide good examples of the types of evidence — either quantitative or qualitative — that could suffice to establish “significance.” In Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir.2007), the Ninth Circuit held the significant nexus test satisfied in part because the district court found increased chloride levels in the relevant navigable water, from 5.9 parts per million to 18 parts per million, due to chlorine seepage from the wetlands in question into the navigable river. Id. at 1001. Alternatively, Cundiff provides an example of the type of qualitative evidence that can establish a significant nexus. As noted earlier, the Sixth Circuit’s opinion in Cundiff rested on evidence that the wetlands’ acid mine drainage storage capabilities and flood storage capabilities had “direct and significant” impacts on navigation in the Green River, via sediment accumulation, and that the diversion of water from the wetlands had “increased the flood peaks” in the Green River. 555 F.3d at 210-11. Thus, in contrast to the present case, both River Watch and Cundiff included some evidence not only of the functions of the relevant wetlands and their adjacent tributaries, but of the condition of the relevant navigable waters. The Corps argues that we must afford deference to its significant nexus finding. We agree that its factual findings are entitled to deference under the APA, and should be reversed only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Corps’ factual findings, however, are not in dispute. The question is instead whether the Corps’ findings were adequate to support the ultimate conclusion that a significant nexus exists. This legal determination is essentially now a matter of statutory construction, as Justice Kennedy established that a “significant nexus” is a statutory requirement for bringing wetlands adjacent to non-navigable tributaries within the CWA’s definition of “navigable waters.” See Rapanos, 547 U.S. at 779-80, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). As we mentioned at the outset, on this question of statutory interpretation, absent the promulgation of new regulations, the Corps’ conclusions are entitled at most to Skidmore deference. See Mead, 533 U.S. at 234-35, 121 S.Ct. 2164; cf. Rivenburgh, 317 F.3d at 439. Because the Corps’ current administrative record contains no evidence of significance for us to review, we cannot find its conclusion that significance existed here persuasive. Cf. Shipbuilders Council of Am. v. U.S. Coast Guard, 578 F.3d 234, 245 (4th Cir.2009) (“Some indicia of reliability and reasonableness must exist in order for us to defer to the agency’s interpretation.”). For these reasons, we reverse the district court’s holding that the Corps’ administrative record adequately demonstrated that a significant nexus existed here, and remand to the Corps for reconsideration of its significant nexus determination. Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (remanding for further agency consideration when the agency’s view of the facts was accepted but the Court “appreciate[d] the limitations of th[e] record in supporting the agency’s decision”); Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir.1986) (remanding for further consideration where it was “impossible to conclude that there [was] substantial evidence to support the Secretary’s determination”). In doing so, we do not intend to place an unreasonable burden on the Corps. We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands’ impacts on downstream water quality. III. For the foregoing reasons, the district court’s grant of summary judgment is reversed and we remand to the district court with instructions to remand to the Corps for further consideration in light of this opinion. REVERSED AND REMANDED . Adjacent, per the Corps' relevant regulations, means "bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.' " 33 C.F.R. § 328.3(c). . A "berm,” as used in this context, is "[a] raised bank or path,” or "[a] mound or bank of earth, used especially as a barrier....” American Heritage Dictionary 171 (4th ed.2006). . The Edinburgh PUD is situated on a drainage divide, meaning that only a portion of the property drains towards the Northwest River. Additional acres of wetlands on the Edinburgh PUD, which drain towards the Intracoastal Waterway, are not relevant for purposes of this opinion. . The version of the Rapanos Guidance utilized by the Corps, and thus the one described here, is the version dated June 5, 2007, and included within the Joint Appendix. The Guidance has since been updated, and the current version of the Guidance is available on the Corps' website. See U.S. Envt’l Prot. Agency & U.S. Army Corps of Eng’rs, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008), available at http://www.usace.army. mil/CECW/Documents/cecwo/reg/cwa_guide/ cwa_juris_2dec08.pdf. . In 2001, the Corps brought a civil enforcement action against RGM for filling wetlands without a CWA permit. In United States v. RGM Corp., 222 F.Supp.2d 780 (E.D.Va.2002), the court found that the Corps had no jurisdiction over the wetlands on the Edinburgh PUD. However, after Precon acquired the Edinburgh PUD, Precon and the Corps settled pending appeal and the district court vacated its earlier judgment. See No. 01-cv-719, 2005 U.S. Dist. LEXIS 1992 (E.D.Va. Jan. 18, 2005). The particulars of this suit and settlement have no bearing on the instant litigation. . Eutrophication is: a process by which [a water body's] nutrient content increases dramatically due to nitrogen- and phosphorus-rich soil that is washed into [it]. These nutrients encourage the growth of algae, which renders the formerly clear blue water green and increasingly opaque. Moreover, the algae depletes oxygen in the water, jeopardizing the survival of fish and other animal life. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1070 (9th Cir.2003). . Precon does not challenge the Corps’ permit denial, which will accordingly not be discussed further. . In Rapanos, the Court specifically considered the validity of the Corps’ regulation defining "waters of the United States," 33 C.F.R. § 328.3(a). Section 328.3(a) broadly defines this term to encompass all wetlands "adjacent to waters,” including "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce” and tributaries of such waters. 33 C.F.R. § 328.3(a). A majority of the justices in Rapanos found this regulation to be overly broad inasmuch as it allowed, as a matter of course, jurisdiction over wetlands adjacent to nonnavigable tributaries. See 547 U.S. at 739, 126 S.Ct. 2208 (plurality opinion); id. at 781-82, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). . We note that in any event, the applicability of the continuous surface connection test is more questionable on these facts, given the presence of a continuous berm separating the 4.8-acre Site Wetlands from the 2,500-foot Ditch. . We do not, however, review the Corps’ interpretation of the phrase "significant nexus” under the greater deference accorded to some agency interpretations 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), because — although it could' — the Corps has not adopted an interpretation of "navigable waters" that incorporates this concept through notice-and-comment rulemaking, but instead has interpreted the term only in a non-binding guidance document. See United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Rapanos, 547 U.S. at 782, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment) (explaining that "[a]bsent more specific regulations ... the Corps must establish a significant nexus on a case-by-case basis”); id. at 758, 126 S.Ct. 2208 (Roberts, J., concurring) (noting that the Corps has broad leeway to interpret the CWA, but that in order to receive Chevron deference, it must engage in rulemaking that interprets "the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the [CWA]”). . Precon also argues that the Corps impermissibly aggregated bottom-land hardwood wetlands and forested mineral flat wetlands. But as the Corps notes in response, the bottomland hardwood wetlands only comprised three of the 448 acres. Accordingly, there is no indication that inclusion of these acres, even if improper, had any material impact on the outcome of the Corps’ significant nexus analysis. . There is one factual dispute between the parties. Precon argues that the Corps improperly characterized the 2,500-foot Ditch as a “relatively permanent water,” given that the ditch was "substantially dry” in January 2008, which it asserts was the wettest time of year. Appellant's Reply Br. at 17. However, the Corps’ determination that the ditch was a reasonably permanent water, which it defines as a tributary that "has continuous flow at least 'seasonally' (e.g. typically three months),” J.A. 242, rested on its conclusion that it seasonally flowed from February to April. The Corps’ Significant Nexus Determination also observed that January 2008 was a period of drought, and that even at this time standing water was observed in the ditch. Id. at 264. Accordingly, we accept the Corps’ factual determination that the 2,500-foot Ditch flowed at least seasonally, finding it not to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); cf. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (applying § 706(2)(A) to “a factual dispute the resolution of which implicates substantial agency expertise"). . In fact, the record suggests that the two ditches are not generally at capacity, such that a measurement of capacity could double as a measure of flow. At the United States v. RGM Corp. trial, a neighbor testified that the Saint Brides Ditch perennially has water in it, but that at times — especially during drought conditions — portions of it have only two to three inches of water and that it is often not possible to discern which way it is flowing. J.A. 415-16. . Specifically, the Corps’ record documents the Saint Brides Ditch’s dynamic storage capacity, channel slope, water velocities, and sediment storage capabilities; the 2,500-foot Ditch's storage capacity, water velocity, and estimated sediment and organic material trapping capabilities; and the 448 acres of similarly situated wetlands' foot/acre water storage capacity, annual amount of precipitation received, and estimated amount of nitrogen stored. These findings support a conclusion that certain amounts of water, sediment, and pollutants migrate, or are prevented from migrating, from these wetlands to the Northwest River, and thus establish that a "nexus” is present here. But they do not speak to the significance of this nexus.

SBT Holdings, LLC v. Town of Westminster

LYNCH, Chief Judge. Plaintiffs SBT Holdings, LLC, and its owners, Brian, Thomas, and Susan Foley, undertook a condominium real estate development project in the Town of Westminster, Massachusetts. After delays caused by environmental regulation demands by the Town, plaintiffs sued the Town, the Town of Westminster Conservation Commission, and various individuals. Suit was brought under 42 U.S.C. § 1983 alleging that the defendants, in violation of plaintiffs’ equal protection rights, intentionally obstructed the development by taking certain actions, actions which a state court had found to be in violation of state law and in bad faith. The district court dismissed plaintiffs’ complaint for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It held that the complaint failed to specify similarly situated others who were treated differently, a necessary element in an equal protection case. SBT Holdings, LLC v. Town of Westminster, 541 F.Supp.2d 405, 413 (D.Mass. 2008). The plaintiffs appeal, and we reverse the dismissal. I. The facts are taken from plaintiffs’ complaint, accepting as true well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiffs. See Rucker v. Lee Holding Co., 471 F.3d 6, 8 (1st Cir.2006). A. Factual Background SBT purchased three adjoining, undeveloped lots in the Town of Westminster on June 27, 2003 and obtained building permits to construct duplexes on the property. On September 23, 2003, heavy rainfalls caused environmental damage, overcoming hay bales that SBT had installed on the property to control erosion. On September 24, a member of the Conservation Commission visited the property and instructed SBT to install additional lines of hay bales. SBT complied. On October 29, 2003, an agent from the Massachusetts Department of Environmental Protection (“DEP”) visited the site and determined that the runoff had affected downstream wetlands. On October 31, the DEP issued a Unilateral Administrative Order, which found violations of state environmental laws, including the Massachusetts Wetlands Protection Act, Mass. Gen. Laws ch. 131, § 40, and required SBT to “take every reasonable step” to avoid future violations. The DEP also requested that SBT develop a plan to restore the impacted areas and prevent future runoff. As a matter of Massachusetts law, once the DEP issued its Order, the DEP had sole jurisdiction to issue remediation orders at the site under its more stringent standard. See DeGrace v. Conservation Comm’n, 31 Mass.App.Ct. 132, 575 N.E.2d 373, 375-76 (1991) (noting that, unless a conservation commission proceeds pursuant to a local ordinance or bylaw that is more stringent than state law, the state agency’s order supersedes any local action); see also FIC Homes of Blackstone, Inc. v. Conservation Comm’n, 41 Mass.App.Ct. 681, 673 N.E.2d 61, 66 (1996). The Commission was aware of the DEP Order and its contents no later than November 2003. Nevertheless, the Commission did not defer to the state DEP. On November 1, Commission representatives visited the site, ordered SBT to install retaining walls on areas of the property where SBT had planned to install utility lines, and stated that the Commission would issue a cease and desist order if SBT did not comply. On November 25, the Commission issued an Enforcement Order against SBT, citing only the Massachusetts Wetlands Protection Act as its source of authority, the same statute the DEP was enforcing. The Commission knew at the time that the property was already subject to an order from the DEP, which meant the Commission could not, as a matter of state law, issue its independent order. SBT representatives met with state DEP officials in December 2003 and tentatively agreed to an administrative consent order. SBT and the DEP entered into the consent order on March 15, 2004; the Commission became aware of this consent order no later than the end of May 2004. In May, Matthew Marro, a Commission consultant, visited the site and requested that SBT remove old hay bale lines and replace them with new ones. Plaintiff Brian Foley informed Marro about the consent order, and stated that the Commission’s direction to SBT would result in a violation of the DEP consent order and would subject SBT to enforcement action from the DEP. SBT installed additional hay bale lines rather than replacing the original hay bales. Notwithstanding the DEP order, the Commission issued a second Enforcement Order, again citing only the state Wetlands Protection Act, on August 25, 2004. The second Enforcement Order included a Cease and Desist Order, which mandated that no further work be performed on the site until a public hearing was held. It also included an order to regulate the work and required that SBT file a Notice of Intent, which under the state Wetlands Protection Act is similar to an application for a building permit, as to its planned remediation work. SBT filed the Notice of Intent. The Commission held a contentious hearing on September 8, 2004, which was continued to September 29. At the September 29 hearing, the Commission demanded that SBT file yet an additional Notice of Intent by the afternoon of the next day. SBT did not comply. The Commission issued another Enforcement Order on September 30, 2004, requiring SBT to cease and desist work on the property. Again, that order cited only to the state law. The Commission did not serve the order on any of the plaintiffs; SBT learned of the Commission’s issuance of this order from a newspaper article. After the story was published, SBT’s lenders learned of the order and cut off funding for the project. The individual plaintiffs were forced to spend their own funds on the project, which experienced delays and cost overruns. SBT filed a state suit in Worcester Superior Court on October 6, 2004 against the Town, Lois Luniewicz, the head of the Commission, Marro, and several town officials. The complaint alleged state law claims of interference with contractual relations, interference with use and enjoyment of personal property, abuse of process, trespass, and interference with prospective business relations. The parties differ over the circumstances under which this suit terminated. On December 7, 2004, a DEP representative visited the site; both Brian Foley and the Commission consultant Marro were present. The DEP representative stated, in Marro’s presence, “that the site was stable and acceptable to the DEP.” Despite the Commission’s knowing the DEP found the site acceptable, the Commission sued SBT in Worcester Superior Court on February 1, 2005, alleging SBT was in violation of the state Wetlands Protection Act and that SBT had failed to comply with the Commission’s orders. The Commission sought a permanent injunction to require SBT to cease all operations on the property until it complied with the Commission’s orders. At the time, the Commission knew that under Massachusetts law, the existence of the DEP consent order barred it from taking this action. The court issued a Temporary Restraining Order on February 9, 2005. Despite a claim the Commission lacked jurisdiction over the site, the Town sought and obtained a preliminary injunction that continued the terms of the TRO. Town counsel informed the members of the Commission of the injunction on March 2, 2006. In response, Luniewicz sent a reply by email that stated: “I’d say-good job! We’ve heard that Mr. Foley is financially insolvent and no longer connected to the project, which is why we started this process in the first place! If that’s true, how will we get what we need done from him ... ?” (Emphasis added.) SBT moved to dismiss the Commission’s state suit on April 13, 2006. After the Commission was served with the motion, defendant Karen Murphy, the Town Coordinator, withheld a Certifícate of Use and Occupancy that the Building Commissioner had issued for units which SBT had offered for sale. Obtaining the certificate had been a precondition for the contracts of sale. The Worcester Superior Court granted SBT’s motion to dismiss on June 21, 2006. The court awarded SBT its costs and attorneys’ fees, stating that the Commission’s claim against SBT was “frivolous and wholly insubstantial,” in part because the Commission “knew that SBT was subject to the DEP’s Consent Order prior to the time it filed its complaint.” Westminster Conservation Comm’n v. SBT Holdings, LLC, No. 050183, 2006 WL 4114310, at *2 (Mass.Super.Ct. Dec. 22, 2006). The Appeals Court of Massachusetts affirmed the award. Westminster Conservation Comm’n v. SBT Holdings, LLC, No. 07-P-497, 2008 WL 3925641, at *2 (Mass.App.Ct. Aug.28, 2008); see also Hamilton v. Conservation Comm’n, 12 Mass.App.Ct. 359, 425 N.E.2d 358, 366 (1981) (where town acts based on state Wetlands Protection Act, it is the state agency which has final authority; town may impose stricter liability by ordinance or by law, and even then, only in a fashion consistent with the Act). B. SBT’s Suit in Federal Court On April 19, 2007, plaintiffs filed this suit in federal court. The complaint asserted, under 42 U.S.C. § 1983, an equal protection claim, as well as several state-law claims. The equal protection claim was styled as a “class of one” claim, that is, a claim in which the plaintiffs do not claim membership in a class or group, but assert that the defendants impermissibly singled them out for unfavorable treatment. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); Cordi-Allen v. Conlon, 494 F.3d 245, 250 (1st Cir.2007). The complaint alleged that the defendants had “intentionally and wrongfully singled out Plaintiffs for adverse treatment” and that the defendants “took ... adverse actions against the Plaintiffs, though the Defendants did not take action against others similarly situated.” Complaint paras. 153-54, SBT Holdings, 541 F.Supp.2d 405 (No. 07-40116-FDS). The allegations about “others similarly situated” focused on the individuals who had purchased the developed duplexes on the property from SBT. The complaint stated that the Town had been informed that it could proceed against the new owners to obtain remediation, but that “[significantly, [the Commission] has never taken any enforcement action against the [new] owners.” Id. ¶. 143. In addition, the complaint referred to the owner of land abutting the property, noting that SBT was forced to construct an engineered swale to prevent erosion “as a result of clearing done by the uphill abutter” and that “[d]espite specific acknowledgement [sic] of this fact, [the Commission] never took any enforcement action against nor required any notice of intent to be filed by that abutter.” Id. ¶ . 123. It also alleged that the difference in treatment had no rational basis and that it was instead due to “malicious and bad faith intent” to injure the plaintiffs. Id. paras. 155-56. Several defendants filed a motion to dismiss or, in the alternative, for summary judgment. The court dismissed the case, finding that the allegations in the complaint failed to establish a plausible § 1983 equal protection violation because the plaintiffs failed to allege adequately that they were “treated differently from ‘others similarly situated ... based on impermissible considerations.’” SBT Holdings, 541 F.Supp.2d at 412 (omission in original) (quoting Clark v. Boscher, 514 F.3d 107, 114 (1st Cir.2008)). The court stated that “[t]he only possible reference in the complaint to a ‘similarly situated’ third party” was the allegation that defendants had “ ‘never taken any action against the owners of [the] Property who purchased it from SBT.’ ” Id. at 413 n. 5 (alteration in original) (quoting Complaint ¶ . 143). The court found this reference insufficient because the complaint did not reveal whether the plaintiffs had even sold the property and did not allege either that “the environmental condition of the property remained unchanged ..., or that the new owners did not undertake site restoration.” Id. The court declined to exercise supplemental jurisdiction over the remaining state law claims, see 28 U.S.C. § 1367(c)(3), and dismissed claims against the remaining defendants as well. II. This court reviews a dismissal under Fed.R.Civ.P. 12(b)(6) de novo. In re New Motor Vehicles Canadian Exp. Antitrust Litig., 533 F.3d 1, 3 (1st Cir. 2008). Plaintiffs’ initial argument is that the court improperly applied a heightened pleading standard to their civil rights complaint. As we stated in Educadores Puer-torriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir.2004), “[a]ll civil rights actions are subject to [Fed.R.Civ.P.] 8(a)’s notice pleading regime.” Id. at 67. The district court here stated it was applying the standard for evaluating the sufficiency of pleading an equal protection claim it thought was set out in Barrington Cove Ltd. Partnership v. Rhode Island Housing & Mortgage Finance Corp., 246 F.3d 1, 8 (1st Cir.2001). The question of whether the court in fact used a heightened pleading standard is hypothetical; whether it did or not, plaintiffs’ claim survives the pleading standard the Supreme Court articulated in Olech. See Olech, 528 U.S. at 565, 120 S.Ct. 1073; see also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1967-69, 167 L.Ed.2d 929 (2007). A claim for a “class of one” equal protection violation “is cognizable when—and only when—a ‘plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ ” Cordi-Allen, 494 F.3d at 250 (quoting Olech, 528 U.S. at 564, 120 S.Ct. 1073); see also Barrington Cove, 246 F.3d at 7 (“[T]o establish its claim, ... [a plaintiff must] allege facts indicating that, ‘compared with others similarly situated, [it] was selectively treated ... based on impermissible considerations such as ... malicious or bad faith intent to injure a person.’ ”) (second omission in original) (emphasis in original) (quoting Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir.1995)). To determine whether two or more entities are “similarly situated,” we ask “whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated,” Barrington Cove, 246 F.3d at 8 (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)). “Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.” Id. (quoting Dartmouth Review, 889 F.2d at 19). Here, the relevant comparison is between the plaintiffs, who developed the condominiums, and the purchasers of the newly developed condominiums, who were the new owners of the property. The defendants rely heavily on the dismissal of plaintiffs complaint in Barring-ton Cove, but the allegations in that complaint were very different from these. In contrast to the situation in Barrington Cove, the complaint here does not itself set forth factual allegations that show the defendants had' “an adequate basis ... for treating the [plaintiffs] differently.” Id. at 9. In Barrington Cove, the complaint included details, such as the fact that the plaintiff began construction on a low-income housing project before funding was entirely secure, that would have provided the governmental defendant with a rational basis for the difference in treatment, and thus with a complete defense to a claim for disparate treatment. Id.', see also Cordi-Allen, 494 F.3d at 250. Here, by contrast, the complaint does not disclose any facts that would have served as a rational basis for the difference in treatment. To the contrary, the complaint states: [I]n [correspondence dated April 4, 2006], Defendant [Seewald, Jankowski & Spencer] advised Defendants Marro, Murphy and Luniewicz that if the Permanent Injunction Litigation was dismissed, the Town could obtain the relief it ivanted relating to compliance with the Wetlands Protection Act by bringing an enforcement action against the new owners of the property. Significantly, the Defendant Conservation Commission has never taken any enforcement action against the owners of [the] Property who purchased it from Plaintiff SBT. Complaint ¶. 143 (emphasis added). In essence, the complaint alleges that those who purchased the developed condominiums during the relevant periods at least in part assumed the plaintiffs’ prior ownership interests but the Town never attempted to apply its ongoing environmental enforcement provisions against the new owners. The defendants argue that the complaint fails to establish similarity because it does not show that the “subsequent purchasers were subject to the same or similar statutory and regulatory requirements as the developer” or that the property remained in the same state. That argument ignores the rule that we draw all rational inferences from the facts alleged in favor of the plaintiffs. We must assume from the facts pled that the environmental obligations ran with the land. See Mass. Gen. Laws, ch. 131, § 40 (“Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of ... any order issued under [the Wetlands Protection Act] shall forthwith comply with any such order.... ”). The purchasers were, as a result, subject to the same environmental obligations. Nonetheless, the Commission selectively chose not to enforce those obligations against those who acquired the real estate. In addition, the complaint more than adequately alleges that defendants’ actions were motivated by “malicious or bad faith intent to injure.” Barrington Cove, 246 F.3d at 7 (emphasis omitted) (quoting Ru-binovitz, 60 F.3d at 910). The correspondence plaintiffs obtained during the permanent injunction litigation demonstrates that the defendants’ actions, “including but not limited to bringing the Permanent Injunction Action, were utterly unjustified, contrary to law and out of malice and bad intent.” Complaint paras. 133-34. The complaint cited Luniewicz’s email and alleged that the correspondence was “never questioned by any Defendant as improper or not reflecting the true reason why the actions ... were instituted and pursued.” Id. ¶. 136. It also alleged that the lack of enforcement action against the new owners led to the “inescapable conclusion” that the Commission’s “primary goal in taking action against the Plaintiffs was ... to render the Plaintiffs financially insolvent.” Id. ¶. 143. Defendants argue that the email can only establish that Luniewicz alone acted from impermissible motives and that this motive cannot be ascribed to the Town or to the Commission. A reasonable inference is that Luniewicz, as head of the Commission, either spoke for the Commission or with knowledge of why the Commission acted as it did. The district court erred in dismissing the plaintiffs’ complaint for failure to state a claim. III. Defendants present alternative arguments for dismissal. We may affirm a judgment of dismissal “on any independently sufficient ground.” Badillo-Santiago v. Naveirar-Merly, 378 F.3d 1, 5 (1st Cir.2004). Defendants argue the plaintiffs’ federal complaint is barred by the doctrine of res judicata. The burden is on the defendants to establish the affirmative defense of res judicata. See Fed.R.Civ.P. 8(c)(1); 5 Wright & Miller, Federal Practice & Procedure § 1270 (3d ed.2004). “As a general rule, a properly raised affirmative defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the defense are definitively ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 12 (1st Cir.2004). The facts provided fail to establish res judicata. See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 62-67 (1st Cir.2008). We look to Massachusetts res judicata principles. Federal courts “must give preclusive effect to state court judgments in accordance with state law.” Mulrain v. Bd. of Selectmen, 944 F.2d 23, 25 (1st Cir.1991). The term res judicata “includes both claim preclusion and issue preclusion,” Kobrin v. Bd. of Registration in Med., 444 Mass. 837, 832 N.E.2d 628, 634 (2005), and “makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” Id. (quoting O’Neill v. City Manager, 428 Mass. 257, 700 N.E.2d 530, 532 (1998)) (internal quotation mark omitted). Defendants must establish three elements: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id. (quoting DaLuz v. Dep’t of Corr., 434 Mass. 40, 746 N.E.2d 501, 505 (2001)) (internal quotation marks omitted). We look to the suit which SBT filed. Defendants have failed to establish that plaintiffs’ federal complaint contains allegations that are “virtually identical” to the allegations made in the suit SBT filed nor even that the federal claims could have been brought at the time. See Puerto Ricans for P.R. Party, 544 F.3d 58, 66. Plaintiffs’ equal protection claim is based on allegations they were treated differently than the new owners, and on allegations of malice and bad faith. Information such as Luniewicz’s email, which was sent on March 3, 2006, was not available to the plaintiffs until after the state suit effectively ended. The complaint also alleges that although the defendants were made aware in April 2006 that they could proceed against the new owners, they failed to do so. These allegations could not have been made earlier, before the suit that SBT filed in Worcester Superior Court effectively ended on May 18, 2005. In addition, the evidence does not establish there has been a final adjudication on the merits in SBT’s suit. IV. Defendants also argue that all claims by plaintiffs Brian, Thomas, and Susan Foley must be dismissed for lack of standing because all the claims alleged in the complaint belong to SBT, not to the individual plaintiffs. They say the individual plaintiffs did not have dealings with the defendants, and that the alleged wrongful conduct was directed to SBT alone. This argument need not detain us long. First, it would not lead to dismissal of the whole suit in any event. Second, the individual plaintiffs have standing. A plaintiff must have Article III standing. Town of Winthrop v. FAA, 535 F.3d 1, 6 (1st Cir.2008). To proceed, he or she must “adequately establish: (1) an injury in fact ...; (2) causation ...; and (3) redressability.” Sprint Commc’ns Co. v. APCC Servs., Inc., — U.S. -, 128 S.Ct. 2531, 2535, 171 L.Ed.2d 424 (2008). The individual plaintiffs have done so here. The complaint alleges that as a result of the September 2004 Enforcement Order, SBT’s lender cut off funding and, “[a]s a result, Plaintiffs Brian Foley, Thomas Foley and Susan Foley were required to devote substantial personal funds” to the project. Complaint, ¶. 81. The plaintiffs also allege that defendants’ action caused cost overruns and delays, causing the individual plaintiffs “direct and consequential financial harm.” Id. paras. 82-83. Further, as the plaintiffs argue, Luniewicz’s email demonstrates that the malice and bad faith alleged in the complaint were directed at the individual plaintiffs. While the defendants proceeded only against SBT, they allegedly did so to achieve their alleged motive of bankrupting the Foleys. Finally, defendants argue that the Commission is not a proper party to this suit. The parties have assumed this question is governed by Fed.R.Civ.P. 17(b)(3), under which state law determines a defendant’s capacity to be sued save for an exception which the parties have not addressed. Defendants assert that Massachusetts law provides “no authority to suggest that a conservation commission is a proper party to a claim for money damages.” They argue that the plaintiffs can only bring claims against the municipality or against the individual members of the Commission. Defendants’ argument overlooks the relevant Massachusetts law. Since at least 1981, Massachusetts courts have recognized that conservation commissions are amenable to suit. See Hamilton, 425 N.E.2d at 366 (noting that local authorities may impose by bylaw or ordinance wetlands protections that are more stringent than state standards under section 40, but that “where a taking is caused by the accomplishment of that purpose, it is the local authority which would bear the liability”). In addition, there are numerous cases where conservation commissions are parties and Massachusetts state courts dismissed claims for damages against them, but not on grounds they are not amenable to suit. See, e.g., Giovanella v. Conservation Comm’n, 447 Mass. 720, 857 N.E.2d 451 (2006) (affirming denial of claim for damages on the merits); First High St. Trust v. Town of Hingham, No. 03-P-681, 2004 WL 615050 (Mass.App.Ct. Mar.29, 2004) (statute of limitations). Such actions have not been limited to takings claims and have included actions for damages. See Kennie v. Natural Res. Dep’t, 69 Mass.App.Ct. 158, 866 N.E.2d 983 (2007). V. Dismissal of plaintiffs’ complaint cannot be justified on grounds that the complaint failed to state a claim or on the alternate grounds asserted. We reverse the judgment of dismissal of the district court and remand for further proceedings consistent with this opinion. So ordered. . The complaint named the Town and the Commission and also named Luniewicz, Mar-ro, Karen Murphy, the Town Coordinator, and the law firm of Seewald, Jankowski & Spencer, P.C., the Town’s counsel. . The district court held that Seewald, Jan-kowski & Spencer was absolutely immune to suit as a town counsel. Plaintiffs do not challenge this determination. . Because the new owners are comparators, we do not reach the question of whether the owner of the abutting land who caused environmental damage is also a comparator. . We do not need to address Cordi-Allen's language that, "the degree of similarity required may be relaxed somewhat if the plaintiff has presented evidence of 'personal malice and 'bad faith’ retaliation,' ” Cordi-Allen, 494 F.3d at 251 n. 4 (quoting Tapalian v. Tusino, 377 F.3d 1, 7 (1st Cir.2004)). Even without relaxing the standard, the degree of similarity pled suffices. . Here, defendants failed to provide certified copies of all the pertinent state court documents. It is not clear whether these uncerti-fied copies are subject to judicial notice, but even if they could be, defendants have still not met their burden. . Defendants incorrectly also argue from the .suit the Town filed. Unless a defendant is subject to a compulsory counterclaim rule, the defendant "should be left free to assert his claims in a court and at a time of his own choosing.” 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4414, at 343 (2d ed.2002). Defendants offer no arguments as to why the federal claims here should be viewed as compulsory counterclaims in the Town's suit. Indeed, as we recount later, certain events which helped give rise to the federal claims did not occur until later. . On March 16, 2005, the superior court entered an Order for Entry of Dismissal Nisi, noting that the matter was reported settled and ordering that an agreement for judgment of stipulation of dismissal be filed by April 15, 2005 and that, if such an agreement were not filed, a judgment of dismissal without prejudice would be entered. On May 18, the court ordered the action dismissed without prejudice, since no stipulation of dismissal had been filed. The docket also stated that the court did receive, on May 18, a "stipulation of dismissal with prejudice & without costs.” (Emphasis added.) A final entry, added on July 26, 2007, stated “judgment vacated— stipulation of dismissal having been filed.” Plaintiffs moved to correct the docket entry or to amend judgment, and at the court's request, defendants filed a cross-motion to vacate the judgment of dismissal nisi and substitute a stipulation of dismissal. On December 7, 2007, the court denied the defendants’ motion, concluding that “[t]here remain[ed] a genuine issue of fact as to whether all parties ... intended to have this case disposed of by a dismissal with prejudice.” . For this reason, defendants' argument that judicial estoppel bars the plaintiffs from arguing against res judicata fails. Judicial estop-pel "prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” 18 Moore et al., Moore’s Federal Practice § 134.30 (3d ed.2008); see also New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). For the doctrine to attach, "the responsible party must have succeeded in persuading a court to accept its prior position.” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir.2004). At this point in the litigation, the record is not clear that the court accepted SBT’s prior position — that the state suit was dismissed with prejudice. Defendants’ equitable estoppel argument also fails. Defendants assert that they reasonably relied on plaintiffs' representation that a stipulation of dismissal with prejudice had been filed. However, for equitable estoppel to attach, defendants must show that at the time, they "did not know nor should [they] have known” that plaintiffs' conduct was misleading. Benitez-Pons v. Puerto Rico, 136 F.3d 54, 63 (1st Cir.1998) (quoting Heckler v. Cmty. Health Servs., 467 U.S. 51, 59, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984)). Here, the record shows that the state court’s clerk sent copies of the dismissal with prejudice to all parties and that defendants could have learned the truth by exercising reasonable diligence. See id.

Big Meadows Grazing Ass'n v. United States

CLIFTON, Circuit Judge. No less than half of the wetlands in the continental United States have been destroyed since 1600. To counter this trend, the Natural Resource Conservation Service of the Department of Agriculture established the Wetlands Reserve Program (the “WRP”) to provide landowners an opportunity to protect, restore, and enhance wetlands on their property.” Big Meadows Grazing Association (“Big Meadows”) sold the United States a conservation easement so that part of Big Meadows’ property could be enrolled in the WRP. When Big Meadows and the United States subsequently disagreed on what conservation activities would occur on the property, the government began unilaterally implementing its proposed conservation plan. Big Meadows sued, seeking in pertinent part a declaratory judgment that implementation of the conservation plan without its approval would violate 16 U.S.C. § 3837a. The district court granted summary judgment for the government, ruling that the government need not obtain Big Meadows’ approval before implementing the conservation plan. Big Meadows timely appealed. Because § 3837a neither requires Big Meadows’ assent to the conservation plan nor requires that the agreement to implement a conservation plan be made apart from the easement, we affirm. I. BACKGROUND Ever since December 1999, the government has held a permanent conservation easement on approximately 1,812 acres of land that Big Meadows owns in Flathead County, Montana. The government paid Big Meadows approximately $1.9 million for the easement, the purpose of which is to “restore, manage, maintain, and enhance” wetlands and to conserve “natural values.” Before the easement was conveyed, the government allegedly informed Big Meadows that the conservation plan would cost around $80,000 to implement. However, the government’s latest conservation plan, from September 2001, is projected to cost over $486,000. The government did not provide Big Meadows with a Preliminary Restoration Plan (“PRP”) before obtaining the easement. Insisting that the latest conservation plan is “radically different” from representations that were made both before and after the easement was conveyed, Big Meadows has refused to agree to its implementation. Big Meadows disagrees with the scope and type of restoration activities that are to take place. For example, according to Big Meadows, the conservation plan originally envisioned restoring a streambed, but now proposes impounding water via a dam, which Big Meadows finds objectionable. Unable to obtain Big Meadows’ agreement, the government informed Big Meadows that its agreement was not necessary and began unilaterally implementing the conservation plan in November 2001. Litigation ensued. Big Meadows sought in district court a declaratory judgment that the government had violated § 3837a by attempting to implement a conservation plan without Big Meadows’ agreement, and an injunction preventing the government from performing any restoration activities until Big Meadows approved of a conservation plan. The district court denied Big Meadows’ requests for a temporary restraining order and for a preliminary injunction. The government then moved to dismiss for failure to state a claim, arguing in relevant part that § 3837a had not been violated. Construing the motion as one for summary judgment, the district court granted summary judgment for the government, holding that § 3837a did not require the government to obtain Big Meadows’ agreement before implementing the conservation plan. Big Meadows timely appealed from that decision. II. DISCUSSION A. Section 3837a Does Not Require the Government to Obtain Big Meadows’ Agreement to the Terms of the Conservation Plan. [1] Leaning on § 3837a, Big Meadows argues that the government may not implement on the easement property a conservation plan to which Big Meadows has not assented. The statute provides in relevant part: (a) In general. To be eligible to place land into the wetland reserve under this subpart, the owner of such land shall enter into an agreement with the Secretary— (1) to grant an easement on such land to the Secretary; [and] (2) to implement a wetland easement conservation plan as provided for in this section .... 16 U.S.C. § 3837a(a) (2000). There is no dispute that subpart (1) has been satisfied. Big Meadows argues, however, that subpart (2) has not been met. Big Meadows reads subpart (2) as requiring the government to obtain Big Meadows’ assent to the particular conservation plan to be implemented. We find no support for this construction in the statute. The language of subpart (2) plainly does not require agreement on the specific terms of the conservation plan. All subpart (2) requires is that Big Meadows enter into an agreement “to implement a wetland easement conservation plan” of some kind. Big Meadows did that when it conveyed the conservation easement here. Scrutiny of the particular terms of this easement reveals that Big Meadows agreed to the implementation of a wetland easement conservation plan. Specifically, Big Meadows relinquished all rights not expressly reserved in Part II of the easement: [T]he Grantor(s), hereby grants and conveys with general warranty of title to the UNITED STATES OF AMERICA and its assigns ... forever, all rights, title and interest in the lands comprising the easement area ... and appurtenant rights of access to the easement area, but reserving to the Landowner only those rights, title and interest expressly enumerated in Part II. It is the intention of the Landowner to convey and relinquish any and all other property rights not so reserved. Part II expressly reserved in Big Meadows only record title, the right of quiet enjoyment, the right to prevent trespass and control public access, the right to undeveloped recreational uses, and the right to subsurface resources. Big Meadows did not reserve, for instance, the right to veto the conservation plan. Expressly granted, in fact, was the right for the government to undertake “any” restoration activities: “The United States shall have the right to enter unto the easement area to undertake ... any activities to restore, protect, manage, maintain, enhance, and monitor the wetland and other natural values of the easement area.” (Emphasis added.) The purpose of the easement was “to restore, protect, manage, maintain, and enhance the functional values of wetlands,” and the easement expressly recognized that “restoration and management activities on the easement area” would occur. This language demonstrates that, in conveying the easement and pursuant to its terms, Big Meadows “enter[ed] into an agreement with the Secretary ... to implement a wetland easement conservation plan.” 16 U.S.C. § 3837a(a) (2000). Notably, § 3837a(c) reserves no role for the landowner in developing a conservation plan, supporting our conclusion that Big Meadows’ approval is not required: (c) Restoration plans. The development of a restoration plan, including any compatible use, under this section shall be made through the local Natural Resources Conservation Service representative, in consultation with the State technical committee. Guidance in support of the government’s position is further provided by § 3837a(b), which reads in pertinent part: (b) Terms of easement. An owner granting an easement under subsection (a) of this section shall be required to provide for the restoration and protection of the functional values of wetland pursuant to a wetland easement conservation plan that— ‡ ‡ ‡ (4) includes such additional provisions as the Secretary determines are desirable to carry out this subpart or to facilitate the practical administration thereof. Subpart (b)(4) vests in the Secretary discretion to include any desirable provisions in the conservation plan. It does not require the Secretary to obtain Big Meadows’ assent. Nor must the conservation agreement be made separate and apart from the easement. While § 3837a(a) requires that Big Meadows both agree to grant an easement and agree to the implementation of a conservation plan, it nowhere prohibits the latter agreement from being contained in the easement. Section 3837a(b) suggests no such prohibition either. Big Meadows relies on the portion of that section stating, “An owner granting an easement under [§ 3837a(a) ] shall be required to provide for the restoration and protection of the functional values of wetland pursuant to a wetland easement conservation plan ... 16 U.S.C. § 3837a(b) (2000). But that language nowhere indicates that agreement to the conservation plan cannot be contained in the easement. In fact, § 3837a(b) is titled “Terms of easement,” suggesting that the agreement to implement a conservation plan may well be part of the easement. Federal regulations prompt no different result. Seven C.F.R. § 1467.4(a) (2003) states in pertinent part, “To participate in WRP, a landowner will agree to the implementation of a Wetlands Reserve Plan of Operations (WRPO) .... ” Like 16 U.S.C. § 3837(a), this regulation requires only that Big Meadows agree to the implementation of a conservation plan. It does not require that Big Meadows assent to the terms of the particular conservation plan chosen. Neither does 7 C.F.R, § 1467.10(d) (2003), which provides in relevant part (emphasis added): (d) The landowner shall: (1) Comply with the terms of the easement; (2) Comply with all terms and conditions of any associated contract; ‡ ‡ ^ ‡ (4) Agree to the long-term restoration, protection, enhancement, maintenance, and management of the easement in accordance with the terms of the easement and related agreements.... Far from indicating that a separate agreement is required, the emphasized portions actually suggest the contrary. Subpart (d)(2)’s reference to “any associated contract” indicates that a separate contract may, but need not, exist. Subpart (d)(4)’s reference to “related agreements” does not indicate that separate related agreements must exist, but merely acknowledges that they may. Finally, we turn to 7 C.F.R. § 1467.12(b) (2003), which specifies in relevant part, “Modifications to the WRPO which are substantial and affect provisions of the easement will require agreement from the landowner and require execution of an amended easement.” At most, this regulation may suggest that the conservation plan (the WRPO) is to exist apart from the easement (though we offer no opinion on this matter). It nowhere indicates that the agreement to implement a conservation plan must exist apart from the easement. In sum, the plain language of § 3837a (with which the underlying regulations are consistent) does not require that Big Meadows assent to a conservation plan before it may be implemented. Nor does it require that the agreement to implement a conservation plan be made separate and apart from the easement. All it requires is that Big Meadows agree to the implementation of a wetland easement conservation plan. Big Meadows did so under the specific terms of the easement it conveyed to the government. We do not hold that the conveyance of an easement pursuant to § 3837a(a)(l) obviates the requirement of § 3837a(a)(2) that there be an agreement “to implement a wetland easement conservation plan.” Rather, our holding is that when, as here, the particular terms of the easement demonstrate an agreement to implement a wetland easement conservation plan, sub-part (a)(2) is met. Subpart (a)(2) neither requires the agreement to be made separate and apart from the easement, nor does it require agreement on the specific terms of the conservation plan. Because the plain language of the statute unambiguously forecloses Big Meadows’ argument, our inquiry ends here. See Cal. Franchise Tax Bd. v. Jackson (In re Jackson), 184 F.3d 1046, 1051 (9th Cir.1999) (‘When the statutory language is clear and consistent with the statutory scheme at issue, the statute’s plain language is conclusive and this Court need not inquire beyond the plain language of the statute.”). B. We Decline to Review Big Meadows’ Allegations of Noncompliance with the Manual. Big Meadows also argues that its assent to the conservation plan is required by the Manual. Yet Big Meadows concedes that the Manual cannot bind the government because it is neither substantive in nature nor was promulgated according to the Administrative Procedure Act. See W. Radio Servs. Co. v. Espy, 79 F.3d 896, 902 (9th Cir.1996) (requiring “agency rules to be substantive and to be promulgated according to certain procedural requirements before they can bind an agency”). Because the Manual is nonbinding, we do not review Big Meadows’ allegations of noncompliance. See id. at 900 (“We will not review allegations of noncompliance with an agency statement that is not binding on the agency.”). III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. .Wetlands are home to nearly 5,000 species of plant life and numerous species of animal life (including such endangered species as the whooping crane, bald eagle, red wolf, and fatmucket mussel). See http://www.nrcs. usda.gov/feature/highlights/wetlands/life.html (last visited August 19, 2003). Wetlands also help prevent floods, control erosion, protect shorelines, and filter water pollutants. See http://www.nrcs.usda.gov/feature/highlights/ wetlands/places.html (last visited August 19, 2003). . See http://h2osparc.wq.ncsu.edu/info/wet-lands/intro.html (last visited August 19, 2003). . See http://www.nrcs.usda.gov/programs/ wrp/ (last visited August 19, 2003); see also 16 U.S.C. § 3837(a) (2000) (the WRP was established ‘‘to assist owners of eligible lands in restoring and protecting wetlands”). . Although the easement does express an "intent of [the United States] to give the Landowner the opportunity to participate in the restoration and management activities on the easement area,” it nowhere grants Big Meadows the power to veto a conservation plan of which it disapproves. . Big Meadows raised this argument in its brief before the district court. We therefore decline the government’s invitation to disregard the argument on the ground that it was raised for the first time on appeal. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985)("The rule is well-established that absent exceptional circumstances, an issue not raised below will not be considered on appeal.”).

Treacy v. Newdunn Associates, LLP

Reversed and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD and Senior Judge BEAM joined. OPINION GREGORY, Circuit Judge: During the summer of 2001, without obtaining a permit from the Army Corps of Engineers (the “Corps”) or the Virginia State Water Control Board (the “Board”), Newdunn Associates, Orion Associates, and Northwest Contractors (collectively “Newdunn”) began ditching and draining wetlands on a forty-three-acre property near Newport News, Virginia (the “New-dunn Property”). Pursuant to its authority under the Clean Water Act (“CWA” or the “Act”), the Corps brought a civil enforcement action in federal district court. The Board initiated its own enforcement action in state court, premised on the Virginia Nontidal Wetlands Resources Act of 2000 (the “Virginia Act”). Newdunn removed the state action to federal court, and- the two cases were consolidated. After a five-day bench trial, the district court ruled for Newdunn in both cases, finding that the Corps lacked jurisdiction over wetlands on the Newdunn Property under the Clean Water Act, and that the jurisdictional reach of Virginia law was merely coextensive with federal law. For the reasons stated below, we reverse. I. In 1978, Newdunn Associates purchased forty-three acres of land located in Newport News, Virginia. It is undisputed that approximately thirty-eight acres of the Newdunn Property (the “Newdunn Wetlands”) were “wetlands,” as that term is defined by the Corps in its CWA regulations. 33 C.F.R. § 328.3(b) (2002) (defining “wetlands” as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions”). Historically, before the construction of Interstate 64 (“1-64”), the wetlands on the Newdunn Property had a natural hydrologic connection to Stony Run, which is a navigable waterway-in-fact. Presently, the New-dunn Wetlands remain connected to the navigable waters of Stony Run by the intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under 1-64). Silt-laden waters from the Newdunn Wetlands merge with clear water flowing south of the manmade ditch on the west side of 1-64. In May of 2001, following the Supreme Court’s ruling in Solid Waste Agency of N. Cook County (“SWANCC”) v. United States, 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), which struck down the Corps’ attempted exercise of jurisdiction under its Migratory Bird Rule, New-dunn informed the Corps that it believed the Corps lacked jurisdiction over the Newdunn Property, and began filling the Newdunn Wetlands without a permit. Newdunn argued that there were no “jurisdictional” wetlands on the property, even though the property contained “scientific” wetlands. The Corps disagreed with Newdunn’s interpretation of SWANCC, and on July 6, 2001, attempted to assert jurisdiction over wetlands on the Newdunn Property by commencing an enforcement action in federal district court, alleging violations of sections 801 and 404 of the Clean Water Act. Based on the same activities, and pursuant to Virginia state law, the Board issued an Emergency Special Order (“ESO”), mandating that Newdunn cease stumping and grading on its property. Va.Code. Ann. § 62.1-44.15(8b). Newdunn ignored the ESO, and as a result, on August 7, 2001, the Board filed a civil enforcement action in state court, alleging violations of Va.Code Ann. §§ 62.1-44.5, 62.1-44.14, 62.1-44.15, 62.1-44.15:5, 62.1-44.23, and 62.1-44.32 (2001). Newdunn removed the Board’s action to federal court. The Board, claiming that the district court was without jurisdiction to consider its case, filed a motion to remand. The court denied the Board’s motion, and the Corps’ and the Commonwealth’s cases were consolidated for a five-day bench trial in March of 2002. As to the federal suit, the district court held that the Corps’ wetlands regulations were invalid because they exceeded Congress’ grant of authority to the Corps under the Clean Water Act. On the state suit, the court ruled that the Commonwealth “has been unable to show that the Virginia Legislature has, at this time, granted regulatory authority independently of the Corps’ jurisdiction.” Accordingly, the district court determined that the Commonwealth lacked jurisdiction over the New-dunn Wetlands, since its authority was presumably coextensive with the Corps’. This consolidated appeal followed. II. We review de novo both the district court’s statutory interpretation of the Clean Water Act, Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 448 (4th Cir.1996), and the district court’s conclusion that it had subject matter jurisdiction over the Commonwealth’s enforcement action, In re Celotex Corp,, 124 F.3d 619, 625 (4th Cir.1997). We review any factual findings of the district court for clear error. Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 284 (4th Cir.2002). III. A. Before reaching the merits of either case, we must first determine whether we have jurisdiction over the Board’s enforcement action premised on Virginia law. In cases where state law creates the cause of action, federal question jurisdiction is “unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (emphasis added). For a federal issue to be both a necessary and disputed element, “the vindication of a right under state law [must] necessarily turn[ ] on some construction of federal law.” Id. at 9, 103 S.Ct. 2841 (emphasis added). In the present ease, the district court noted that both the Virginia state statute and the Corps’ federal regulations define “wetlands” as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b); Va.Code Ann. § 62.1-44.3. Based on this shared scientific definition, the district court concluded “that the state statute is coextensive with the CWA.” In making this finding, however, the district court confused the definition of “scientific wetlands” and “jurisdictional wetlands.” Newdunn concedes, and the district court recognized, that at least thirty-eight acres of the Newdunn Property contained “wetlands” as that term is used in both 33 C.F.R. § 328.3(b) and Va.Code Ann. § 62.1-44.3. Thus, from a scientific perspective, there is no disputed federal question as to whether the Newdunn Property contains wetlands. Because the resolution of this case in no way turns upon any interpretation of 33 C.F.R. § 328.3(b), there can be no federal question jurisdiction based on Virginia’s decision to adopt the Corps’ technical definition of wetlands. See Franchise Tax Bd., 463 U.S. at 9, 103 S.Ct. 2841. Stated differently, the issue is not whether the Newdunn Property contains wetlands, but whether those wetlands are within the jurisdiction of the State Water Control Board. The answer to this question is resolved solely by looking to the Virginia Wetlands Resources Act of 2000, codified at Va.Code Ann. §§ 62.1-44.3, 44.5, 44.15, 44.15:5, 44.29 (2001). The Virginia Act was crafted after this circuit announced its decision in United States v. Wilson, 133 F.3d 251 (4th Cir.1997), and after the D.C. Circuit invalidated the Corps’ Tulloch rule, which had allowed the Corps to regulate incidental fallback as a pollutant added to a wetland, see Nat’l Mining Assoc. v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1404 (D.C.Cir.1998). Following Wilson and National Mining, and the subsequent loss of federal control over Virginia’s wetlands, nearly 10,000 acres of nontidal wetlands were drained or were set to be drained in a period of less than six months. See Tyler Whitley, “Nontidal Wetlands Rules Bill Expected,” Richmond Times-Dispatch, Dec. 1, 1999, at B4. Although Virginia was losing wetlands at a dramatic pace, the State Water Control Board was largely without authority to act. Interpreting then-existing state law, former Attorney General Mark Earley opined, “[T]he Board [did] not have authority to regulate wetlands beyond that contemplated . by the § 401 certification process” found in the CWA.1999 Op. Va. Att’y Gen. 179. Subsequent to this 1999 opinion, environmentalists petitioned the Virginia General Assembly to fill the regulatory vacuum. Delegate L. Preston Bryant, Jr., responded to this call, and co-pa-troned a bill to provide the state with a comprehensive, nontidal wetlands permitting program. In a letter to then-Governor James S. Gilmore, III, Delegate Bryant explained the need for his proposal as follows: For many years, the federal wetlands permitting program has fluctuated in its ability to protect Virginia’s nontidal wetlands. This fluctuation has resulted not only from changing administrations and policies within the federal U.S. Army Corps of Engineers, but more recently from changing federal case law.... A comprehensive state program would remove the uncertainty created by changing federal policies and case law decisions. Letter from L. Preston Bryant, Jr., Delegate, to James S. Gilmore, III, Governor (Dec. 3, 1999) (quoted in Br. of Amici Curiae Sen. Whipple, et al. at 19). Delegate Bryant’s bill was ultimately passed into law, becoming the Virginia Act at issue in this case. See S. 648, 2000 Gen. Assem., Reg. Sess. (Va.2000); H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va.2000) (amending Va.Code Ann. §§ 62.1-44.3, 44.5, 44.15, 44.15:5, 44.29). Newdunn posits that the Virginia Act was crafted narrowly to close only the Tulloch loophole, and not to broaden the' Board’s jurisdiction within the Commonwealth. The plain text of the Virginia Act, however, belies this contention. Virginia law defines “state waters” broadly to include “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.” Va.Code Ann. § 62.1-44.3 (emphasis added). The words “including wetlands” were added to the statute by the Virginia Act, without any jurisdictional limitation. S. 648, 2000 Gen. Assem., Reg. Sess. (Va.2000); H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va.2000). In “state waters,” Virginia law prohibits excavating, draining, filling, dumping, or any other activity that may significantly alter or degrade a wetland without a permit issued by the Board. See Va.Code Ann. § 62.1-44.5. Nothing in the Virginia Act refers to the CWA’s definition of “navigable waters” or the “waters of the United States.” A plain reading of the Virginia Act, therefore, makes it inconceivable that the term “wetlands” as it is used in the state legislation could necessarily turn on the resolution of a question of federal law. Alternatively, Newdunn maintains that the Board’s jurisdiction depends on a resolution of federal law because Va.Code Ann. § 62.1-44.15:5 provides: “Issuance of a Virginia Water Protection Permit shall constitute the certification required under § 401 of the Clean Water Act.” Based on this statute, Newdunn posits that the Board’s jurisdiction must be coextensive with the Corps’. Newdunn’s theory, however, is premised on a fundamental misunderstanding of the relationship between the federal and state permitting procedures. Section 401(a)(1) of the CWA requires an applicant for a federal permit to “provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.... ” The Commonwealth, by enacting § 62.1— 44.15:5, has taken advantage of this federal provision, so that when federal and state laws overlap, applicants may use their state permits to satisfy the certification requirements under section 401 of the CWA. Of course, simply because a state permit carries the added benefit of satisfying a potentially applicable federal requirement does not mean that the state’s jurisdictional reach turns on an interpretation of the CWA. Undoubtedly, situations will arise where a permittee needs a state permit, but no federal permit. In those situations, the state permitting process would apply without reference to the CWA. As the Supreme Court of Virginia recognized, “The CWA and federal regulations allow a state program to operate a discharge elimination system program in place of the federal program, provided that the state program is authorized under state law and has standards that are at least as stringent as the federal ones.” State Water Control Bd. v. Smithfield Foods, 261 Va. 209, 542 S.E.2d 766, 768 (2001) (emphasis added). That is, for a state’s permitting procedure to satisfy the federal requirements of 33 U.S.C. § 1342(a), the state law must be “at least” as exacting as the Clean Water Act, but of course, it may be more demanding. Even when state and federal requirements do overlap, as was the case in Smithfield Foods, the issue of whether the Board has authority to regulate the subject wetlands remains a question of Virginia law. Accordingly, the Board’s jurisdiction cannot “necessarily depend” on any interpretation of federal law, even if it happens that federal and state laws are coextensive on the particular facts of a certain case. See Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841. The Virginia Supreme Court’s finding in Smithfield Foods that “the interests and rights of both the [federal and state] entities [we]re vested in a single permit” does not alter this analysis. See Smithfield Foods, 542 S.E.2d at 770. In Smithfield Foods, because this court had already “affirmed the finding of the district court that Smithfield was liable,” and because the United States Supreme Court denied cer-tiorari, the federal determination was a final judgment for the purposes of res judicata. Id. at 768. In the present case, while the Corps and the Board may ultimately require Newdunn to obtain the same discharge permit, no final judgment in either case has been rendered. Depending upon how the Corps and Newdunn resolve the federal case on remand, the Board’s interest may or may not be satisfied. Accordingly, the Board should be permitted to pursue its rights in a Virginia court. Of course, if either the state or federal actions were to result in a final judgment requiring the issuance of a permit satisfying both federal and state laws, then Newdunn might elect to file a motion to have the unresolved action dismissed on the grounds of res judicata. See Smithfield Foods, 542 S.E.2d at 771. In sum, in light of the Virginia Act’s clear statutory language, it is apparent that “Virginia now regulates activities in wetlands beyond its federal mandate.” Goodwin, Annual Survey of Virginia Law, 37 U. Rich. L. Rev. at 141. It would be perverse, therefore, for this court to conclude that the jurisdictional limits of the Virginia Act depend upon the CWA. Any determination as to the extent of the Board’s jurisdictional reach is purely a question of state law that does not require the resolution of any federal question. Because we lack jurisdiction over the Board’s action, we reverse the district court’s ruling on the Board’s motion to remand, and we remand the state enforcement action to the Virginia court from which it was improperly removed. B. We now turn to the only case for which federal subject matter jurisdiction exists— the Corps’ civil enforcement action premised on the CWA. The Federal Water Pollution Control Amendments of 1972, known collectively as the Clean Water Act, were crafted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2002). To achieve this ambitious goal, Congress mandated that “the discharge of any pollutant by any person shall be unlawful” except as in compliance with the Act’s permitting procedures. Id. § 1311. The permitting scheme at issue in this case is articulated in section 404(a), which gives the Corps the authority “to issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a). The CWA defines “navigable waters” to include “the waters of the United States, including the territorial seas,” id. § 1362(7), and the Corps’ regulatory jurisdiction is limited by this definition. In 1985, the Supreme Court ruled that the Corps possessed the authority to exercise jurisdiction over wetlands that were adjacent to other waters, even though the wetlands themselves were not navigable waters-in-faet. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Court deferred to the Corps’ technical expertise on the matter, noting the considerable difficulty, both for the Corps and for federal courts, in defining the jurisdictional limits of the Act. Id. at 132, 106 S.Ct. 455. The Court explained: In determining the limits of power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. Id. The Corps had determined that wetlands adjacent to other waters should be included in the definition of “waters of the United States,” because “wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water.” Id. at 134-35, 106 S.Ct. 455. The Supreme Court upheld the Corps’ exercise of jurisdiction, concluding, “We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters’ of the United States — based as it is on the Corps’ and the EPA’s technical expertise — is unreasonable.” Id. at 134, 106 S.Ct. 455. The Supreme Court has recently reaffirmed Riverside Bayview Homes, commenting: “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” SWANCC, 531 U.S. at 167, 121 S.Ct. 675; see also United States v. Krilich, 303 F.3d 784, 791 (7th Cir.2002) (observing that the SWANCC Court “reaffirm[ed] its prior holding [in Riverside Bayview Homes ] that Section 404 encompassed non-navigable wetlands adjacent to navigable waters,” but “explicitly declined to further determine the exact meaning of ‘navigable waters’ ”). In SWANCC, the Court struck down the Corps’ so-called “Migratory Bird Rule,” which defined “waters of the United States” to include intrastate waters, “[wjhich are or would be used as habitat by birds protected by Migratory Bird Treaties; or ... [w]hich are or would be used as habitat by other migratory birds which cross state lines.... ” SWANCC, 531 U.S. at 164, 121 S.Ct. 675 (quoting 51 Fed.Reg. 41217). Quoting Riverside Bay-view Homes, the Court held that “Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands ‘inseparably bound up with the “waters” of the United States.’” Id. at 167, 121 S.Ct. 675 (emphasis added). Thus, the Corps’ attempted exercise of jurisdiction over isolated ponds that had no hydrologic connection whatsoever to navigable waters could not stand. Along similar lines, this court has previously held that the phrase “waters of the United States” cannot be used by the Corps to assert jurisdiction over intrastate, nonnavigable waters, solely on the ground that those waters could possibly affect interstate commerce. United States v. Wilson, 133 F.3d 251, 253-54 (4th Cir.1997). We explained, “[T]o include intrastate waters that have nothing to do with navigable or interstate waters, expands the statutory phrase ‘waters of the United States’ beyond its definitional limit.” Id. at 257-58 (emphasis added). Accordingly, we struck down 33 C.F.R. § 328.3(a)(3), because it attempted to give the Corps jurisdiction over any waters, “the use, degradation or destruction of which could affect interstate or foreign commerce.... ” Id. at 257 (quoting 33 C.F.R. § 328.3(a)(3) (1993)). As we held in Wilson, and as the Supreme Court affirmed in SWANCC, the Corps’ jurisdiction does not extend to the limits of the Commerce Clause. Rather, the critical, limiting term is “navigable waters,” as that term is defined in 33 U.S.C. § 1362(7). In the present case, the Corps asserts jurisdiction over navigable waters (33 C.F.R. § 328.3(a)(1)), tributaries of navigable waters (§ 328.3(a)(5)), and “[wjetlands adjacent to waters (other than waters that are themselves wetlands) ...” (§ 328.3(a)(7)). The Corps defines “adjacent” to mean, “bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’” 33 C.F.R. § 328.3(c). This circuit has recently concluded that, pursuant to these regulations, the Corps intends to assert jurisdiction over “any branch of a tributary system that eventually flows into a navigable body of water.” United States v. Deaton, 332 F.3d 698, 711 (4th Cir.2003). In Deaton, the Corps claimed authority to regulate wetlands bordering a “roadside ditch” that took “a winding, thirty-two mile path to the Chesapeake Bay.” Id. at 702. Along the way to the Bay, water flowed from the Deaton’s wetlands to the roadside ditch, and then into a “culvert” on the other side of the road. Id. Water from the culvert drained into a second ditch, which flowed into Beaverdam Creek. Beaverdam Creek was “a direct tributary of the Wicomico River, which [was] navigable.” Id. The distance from the Deaton’s wetlands to a navigable-in-fact river was approximately eight miles. The Deaton court upheld the Corps’ exercise of jurisdiction over all of these waters, finding that “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.” Id. at 708. In dismissing a Commerce Clause challenge to the Corps’ regulations, the Deaton court summarized Congress’ well-articulated purpose for crafting the CWA and concluded, “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.” Id. at 707. In sum, the Corps’ unremarkable interpretation of the term “waters of the United States” as including wetlands adjacent to tributaries of navigable waters is permissible under the CWA because pollutants added to any of these tributaries will inevitably find their way to the very waters that Congress has sought to protect. To the extent that Newdunn challenges the Corps’ decision to label the manmade, 1-64 ditch a “tributary,” that argument has also been foreclosed by Deaton. The Deaton court recognized that the Corps has defined the word “tributary” to include “the entire tributary system,” including roadside ditches. Id. at 710. As explained above, Deaton deferred to the Corps’ definition of “tributary” because “discharges into nonnavigable tributaries and adjacent wetlands have a substantial effect on water quality in navigable waters.” Id. at 712. That the 1-64 ditch at issue in the present case is a manmade rather than a natural watercourse is an irrelevant distinction. As the Corps has explained: The discharge of a pollutant into a waterway generally has the same effect downstream whether the waterway is natural or manmade. Indeed, given the extensive human modification of watercourses and hydrologic systems throughout the country, it would be difficult to identify a principled basis in this case for distinguishing between natural watercourses and watercourses that are wholly or partly manmade or modified. (Br. for the United States at 48-49.) This observation is particularly meaningful in the present case, where the United States has extensively documented the connection between the Newdunn Property’s wetlands and the navigable waters, both before and after the construction of 1-64. Because of this longstanding connection, it would be illogical to conclude that, prior to the existence of 1-64, the Newdunn Wetlands would have been within the ambit of the Corps’ regulations, but that now, with the construction of the highway, the wetlands are no longer jurisdictional. As stated before, the CWA’s primary objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2002). If this court were to conclude that the 1-64 ditch is not a “tributary” solely because it is manmade, the CWA’s chief goal would be subverted. Whether man-made or natural, the tributary flows into traditional, navigable waters. Accordingly, the Corps may permissibly define that tributary as part of the “waters of the United States.” See 33 U.S.C. § 1362(7). Turning our attention to the specific wetlands at issue in this case, it is undisputed that water flows intermittently from wetlands on the Newdunn Property through a series of natural and manmade waterways, crossing under 1-64, draining into the west arm of Stony Run, and eventually finding its way 2.4 miles later to traditional navigable waters. As the district court found, Stony Run is “navigable-in-fact” because the “lower reaches of Stony Run are subject to the ebb and flow of the tide.” The court further found that “Stony Run flows into the Warwick River, which intersects with the James River, which intersects with the Hampton Roads Harbor, which intersects with the Chesapeake Bay.” These factual findings are supported in part by photographic evidence of silt-laden water flowing from the subject property into Stony Run. Because there exists a sufficient nexus between the Newdunn Wetlands and navigable waters-in-fact, the Corps’ jurisdiction in this case is amply supported by the Act and the Corps’ regulations under the Act. IV. For the reasons stated above, the ruling of the district court is reversed. We remand the Board’s state enforcement action directly to the Virginia state court from which it was improperly removed. We remand the Corps’ enforcement action to the district court for further proceedings not inconsistent with this opinion. REVERSED AND REMANDED . It is, of course, unexceptional that Virginia would elect to take advantage of the Corps' vast technical resources in elucidating the scientific meaning of "wetlands,” while at the same time making its own, unrelated decision on when and where to exercise jurisdiction over those wetlands. As Henry R. Butler and Jonathan R. Macey have observed: One real source of economies of scale associated with centralization of environmental regulation could be in centralized research on technical, scientific issues that recur throughout a number of different states.... These economies can be realized by the federal government even when most policy-making and implementation functions are handled by the states. Henry R. Butler & Jonathan R. Macey, Using Federalism to Improve Environmental Policy 26 (1996). . In fact, even if this case did involve a dispute over the scientific definition of wetlands, it is doubtful that the conflict would raise a question of federal law. Importantly, the General Assembly did not reference or cite to federal law in its definition of wetlands. Rather, it merely parroted the language from the federal regulation in Va.Code Ann. § 62.1-44.3. The fact that a state law might mimic the wording of a federal law, of course, does not transform interpretation of the state statute into a federal question. Many states, for example, have "little NE-PAs” on their books, which are based on language found in federal law. See Bradley C. Karkkainen, "Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance,” 102 Colum. L. Rev. 903, 905 (2002) (noting that the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., "has inspired dozens of ‘little NEPAs’ at the state and local levels”). Notwithstanding the presence of mirrored language, courts applying those statutes are interpreting state, not federal, law. . As Wilson and National Mining make clear, the district court erred when it wrongly assumed that, prior to the Supreme Court’s ruling in SWANCC, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), the Corps enjoyed “seemingly unlimited jurisdiction.” . In fact, if there were any doubt as to the meaning of the text, the legislative history of the Virginia Act makes it abundantly clear that the legislation was crafted, not to incorporate the CWA’s jurisdictional limits, but rather to remedy perceived shortcomings with the jurisdictional reach of federal law. During the 2000 General Assembly session, legislators rejected a proposal that would have limited the Board’s jurisdiction to those wetlands “that are subject to federal jurisdiction under the federal Clean Water Act.” See Legislative History of S. 695, Gen Assem. Reg. Sess. (Va.2000), available at http:// leg 1.state.va.us/001/bil.htm; Legislative History of H.D. 1246, 2000 Gen. Assem., Reg. Sess. (Va.2000), available at http:// legl .state, va.us/001/bil.htm. Instead, lawmakers adopted an initiative that defined “wetlands” without any federal jurisdictional limitation and that was crafted not only to close the Tulloch loophole, but also "to protect and enhance the Commonwealth’s wetland resources” by charging the Board with designing regulatory programs "to achieve no net loss of existing wetland acreage and functions.” See Legislative History of S. 648, Gen Assem. Reg. Sess. (Va. 2000), available at http://legl.state.va.us/001/ bil.htm; Legislative History of H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va.2000), available at http://legl.state.va.us/001/bil.htm. As one commenter has observed, “Under Virginia’s new wetlands regulations, impacts that may have been permissible to isolated wetlands under federal regulations will be limited in Virginia. This is because Virginia includes wetlands as part of its definition of 'state waters.’ ” Lisa Spickler Goodwin, Annual Survey of Virginia Law: Environmental Law, 37 U. Rich. L. Rev. 117, 143 (2002). . As is evident from the above discussion, Newdunn’s insistence that SWANCC limited the Corps' jurisdiction solely to those wetlands adjacent to navigable waters-in-fact is plainly incorrect. Unlike the administrative regulation at issue in Riverside Bayview Homes, the "Migratory Bird Rule” before the Court in SWANCC was not developed to clarify the scientifically nebulous point "at which water ends and land begins.” Riverside Bay-view Homes, 474 U.S. at 134, 106 S.Ct. 455. Instead, the Corps' supposed justification for the rule was purely legad — that Congress drafted the CWA with the intention of defining "waters of the United States” as broadly as possible under the Commerce Clause. The Court rejected the Corps' interpretation of the CWA, recognizing that the Corps’ Commerce Clause argument would read the phrase "navigable waters” completely out of the statute. SWANCC, 531 U.S. at 172, 121 S.Ct. 675.

Utahns for Better Transportation v. United States Department of Transportation

PAUL KELLY, Jr., Circuit Judge. This appeal arises from the district court’s order denying the Appellants’ request that the Records of Decision issued by the Federal Highway Administration and the U.S. Army Corps of Engineers (collectively the “Agencies”) concerning the Legacy Parkway project be vacated and that the Legacy Parkway Final Environmental Impact Statement be remanded for further agency action. The district court’s jurisdiction was based upon the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review the district court’s decision de novo. New Mexico Cattle Groivers Ass’n v. United, States Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir.2001). We affirm in part, reverse in part, and remand. Background The Great Salt Lake (“GSL”) and the wetlands surrounding its shoreline serve as an important habitat for a variety of birds, reptiles, amphibians, and mammals, some of which are endangered. The wetlands of the GSL account for 75 percent of all wetlands in the State of Utah, whose total land area consists of only 1.5 percent wetlands. The shores of the GSL are internationally important because they are a link of the Pacific Flyway for migratory waterfowl and a link of the Western Hemisphere Shorebird Reserve Network (“WHSRN”). Some two to five million birds use the GSL yearly and 90 percent of that use is concentrated in the eastern shore. II Aplt.App. at 639. By the year 2020, population and travel demand in the five counties along the eastern shore of the GSL is anticipated to increase by 60 percent and 69 percent, respectively. To prepare the transportation infrastructure to meet this future demand, Utah’s state, local, and regional officials have developed a three-part plan collectively called “Shared Solution.” The plan calls for improving and expanding Interstate 15, expanding transit, and constructing the Legacy Parkway. The Leg-' acy Parkway is to be a four-lane, divided, limited access, state-funded highway. As currently proposed, it is to be 330 feet wide consisting of four lanes, a 65.6-foot median, a 59-foot berm and utility corridor, and a 13.1-foot pedestrian/equestrian/bike trail. It is to start near Salt Lake City (“SLC”), run north along the eastern portion of the GSL, and end fourteen miles later by connecting with U.S. 89. See II Aplee. App. 710(map). Because the Legacy Parkway will connect to the interstate highway system and will require filling in 114 acres of wetland, it must receive approval from the Federal Highway Administration (“FHWA”) and a § 404(b) permit from the U.S. Army Corps of Engineers (“COE”). Because both the approval and the permit qualify as major federal actions, an Environmental Impact Statement (“EIS”) is required. The Utah Department of Transportation (“UDOT”) and its private contractors began preparing a Draft Environmental Impact Statement (“DEIS”) shortly after plans for a new highway were announced by Utah’s governor in July 1996. The FHWA and the COE adopted UDOT’s DEIS and issued it for public comment in September 1998. The Final Environmental Impact Statement (“FEIS”) was released for public comment in June 2000. In December 2000, UDOT awarded the contract for construction of the Legacy-Parkway. On January 9, 2001, the COE released its Record of Decision (“ROD”) issuing the § 404(b) permit to UDOT; and, on October 31, 2000, the FHWA issued its ROD approving UDOT’s request for additions and modifications of access points to the interstate highway system. The Appellants, whose complaints were consolidated by the district court, filed an appeal pursuant to the APA from the RODs as final agency actions. The Appellants asked the district court to vacate the FHWA’s and COE’s RODs that approved construction of the Legacy Parkway, and to order the preparation of a new EIS for the Legacy Parkway. The district court denied the Appellants’ request. After the district court decision was certified as an appealable order, the Appellants appealed to this court and sought an Emergency Motion for Injunction Pending Appeal. On a preliminary record, we granted the motion requiring a $50,000.00 bond. On appeal, Appellants contend that the COE violated the CWA in issuing a permit for the Legacy Parkway where less environmentally damaging “practicable alternatives” existed to the configuration and alignment of the highway. They contend that both the CWA and NEPA were violated when various project impacts were not evaluated correctly and other NEPA requirements were ignored. The Appellants summarize their argument as urging the court to order the Agencies to prepare a new or supplemental EIS and to process a new CWA permit application that adequately addresses the following factors: (1) mass transit alternatives, (2) alternative land use scenarios, (3) land use and growth impacts, (4) impacts on Salt Lake City, (5) wetlands and wildlife impacts, and (6) air quality impacts. Aplt. Br. at 7, 16-17. Statutory Overview The National Environmental Policy Act (“NEPA”) requires federal agencies to prepare an EIS prior to taking major federal action. 42 U.S.C. §§ 4321-4370d. The issuing of either approval of, or a permit for a specific project, when that project’s effects are major and are potentially subject to federal control and responsibility, qualifies as major federal action pursuant to 40 C.F.R. § 1508.18(b)(4). The purpose of NEPA is to require agencies to consider environmentally significant aspects of a proposed action, and, in so doing, let the public know that the agency’s decisionmaking process includes environmental concerns. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); Sierra Club v. United States Dep’t of Energy, 287 F.3d 1256, 1262 (10th Cir.2002). NEPA prescribes the necessary process, but does not mandate particular results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (As long as the procedural requirements were met, the Forest Service would not have violated NEPA if it decided that the benefits of downhill skiing justified issuance of a special use permit, notwithstanding even 100 percent loss of the mule deer herd.); Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1240 (10th Cir.2000). Accordingly, agencies are not required to elevate environmental concerns over other valid concerns. Baltimore Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246. So long as the record demonstrates that the agencies in question followed the NEPA procedures, which require agencies to take a “hard look” at the environmental consequences of the proposed action, the court will not second-guess the wisdom of the ultimate decision. Robertson, 490 U.S. at 350, 109 S.Ct. 1835. “The role of the courts in reviewing compliance with NEPA ‘is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.’” Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1208 (10th Cir.2002) (quoting Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. 2246). We apply a rule of reason standard (essentially an abuse of discretion standard) in deciding whether claimed deficiencies in a FEIS are merely flyspecks, or are significant enough to defeat the goals of informed decisionmaking and informed public comment. Custer County Action Assoc. v. Garvey, 256 F.3d 1024, 1036, 1040 (10th Cir.2001); see also Marsh v. Oregon Nat. Resources Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (noting similarity between the “reasonableness” and “arbitrary and capricious” standards). Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, prohibits the filling or dredging of wetlands without first receiving a § 404(b) permit from the COE. 33 U.S.C. § 1344(a), (d). A permit may not be issued if (i) there is a practicable alternative which would have less adverse impact and does not have other significant adverse environmental consequences, (ii) the discharge will result in significant degradation, (iii) the discharge does not include all appropriate and practicable measures to minimize potential harm, or (iv) there does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with the COE’s Guidelines for permit issuance. 40 C.F.R. § 230.12(a)(3)(i-iv). For non-water dependent projects, it is presumed that a practicable alternative exists and the burden to clearly demonstrate otherwise is on the applicant. Id. § 230.10(a)(3); Resource Inv’s, Inc. v. United States Army Corps of Eng’rs, 151 F.3d 1162, 1167 (9th Cir. 1998). “Practicable” is defined at 40 C.F.R. § 230.10(a)(2) as “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” The presumption for a non-water dependent project that a practicable alternative exists is not an automatic bar on issuance of a permit, but it does require that an applicant make a persuasive showing concerning the lack of alternatives. Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989) (intérnal citation omitted). Finally, a permit may not be issued “unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” 40 C.F.R. § 230.10(d). For actions subject to NEPA, the analysis of alternatives required for the NEPA environmental documents will in most cases provide the information for the evaluation of alternatives under the CWA Guidelines. See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1526 n. 17 (10th Cir.1992). If, however, the NEPA documents do not consider the alternatives in sufficient detail to respond to the requirements of the Guidelines, it may be necessary to supplement NEPA documents with additional information. 40 C.F.R. § 230.10(a)(4). The Administrative Procedure Act (“APA”) makes final agency action for which there is no other adequate remedy in a court subject to judicial review. 5 U.S.C. § 704. The APA empowers a reviewing court 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. 5 U.S.C. § 706(2)(A). In making its determinations, the court shall review the whole record or those parts cited by a party. 5 U.S.C. § 706. If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if 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. [Sierra Club v. Hodel,] 848 F.2d 1068, 1093 (10th Cir.1988) (emphasis added, quotation omitted), overruled on other grounds, Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972 (10th Cir.1992) (en banc). Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1226 (10th Cir.2002) (NEPA). In this case, both parties have filed appendices, 10th Cir. ft. 30, and we decide the case on the basis of the parties’ record submissions. On appeal, this court applies the same standard of review to the record as did the district court. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996) (CWA). The APA’s arbitrary and capricious standard is a deferential one; administrative determinations may be set aside only for substantial procedural or substantive reasons, and the court cannot substitute its judgment for that of the agency. Id. (CWA). The Appellants raise issues under both NEPA, which we address first, and CWA, which we address second. Infra II. Analysis I. NEPA A. D & RG Alignment The Appellants contend that at least three practicable alternatives to the Legacy Parkway exist including (i) a different highway alignment, (ii) a narrower highway configuration, and (iii) a mass transit alternative. They urge that these alternatives are far less environmentally damaging and would have reduced significantly the wetlands impact from the project. We begin with the argument that NEPA was violated by the elimination of the Denver & Rio Grande (“D & RG”) Regional Alignment as an alternative in the FEIS. The FEIS’s chapter on alternatives states that the D & RG Regional Alignment was not selected for further study because of its high cost and high impact on existing development relative to the GSL Regional Alignment. I Aplee. App. at 290. The Appellees assert that, in addition to high cost and high impact, the D & RG was also eliminated because the railroad right of way was under active consideration for future light rail and mass transit. Aplee. Br. at 32. Although the FEIS does mention in its summary of corridor and local planning studies that various organizations have recommended the preservation of the D & RG right of way for future commuter rail use, I Aplee. App. at 228-29, the FEIS does not identify this as a reason for eliminating the D & RG Regional Alignment. We can only affirm agency action, if at all, on grounds articulated by the agency itself. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir.1994). Therefore, we consider this to be a post-hoc rationalization and do not consider it. The Appellants contend that the D & RG Regional Alignment was eliminated in violation of NEPA because the Agencies failed to verify the cost estimates supplied by the Applicant UDOT and failed to respond to comments filed by the Appellants raising this issue. See II Aplt.App. 683-84, III Aplt.App. 950 (comments by Sierra and Utahns questioning the cost estimates used to eliminate D & RG and to select GSL). Both NEPA and the COE regulations for implementing NEPA require that the agency verify the accuracy of information supplied by an applicant, 40 C.F.R. § 1506.5(a); 33 C.F.R. Part 325, App. B § 8(f)(2), and respond to substantive issues raised in comments, 40 C.F.R. § 1503.4(a); 33 C.F.R. Part 325, App. B § 13; Van Abbema v. Fornell, 807 F.2d 633, 639-40 (7th Cir.1986). The record does not reveal, and the Appellees do not assert, that they either verified the cost estimates supplied by the Applicant or responded to the comments submitted by the Appellants on this issue. See IV Aplt.App. at 1243 (letter from COE’s Office of Counsel stating that the COE has no records relating to the estimated cost of the D & RG Regional Alignment or the Legacy Parkway Project). The Agencies, therefore, failed to follow then- own regulations. Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departure. Big Horn Coal Co. v. Temple, 793 F.2d 1165, 1169 (10th Cir.1986) (citation omitted). No rational explanation has been given. This is more than a technical requirement when it comes to the cost of the project and alternatives. The FEIS rejected the D & RG Regional Alignment in part on the basis of comparative costs — a $300 million estimate for the Legacy Parkway and a $460 million estimate for the D & RG Regional Alignment. Ill Aplee. App. 931.2-31.3. Appellants suggest that shortly after the COE permit decision, the estimated cost for the Legacy Parkway was $451 million, significantly closer to the initial $460 million estimate for the DR & G Regional Alignment. They suggest that the COE also relied upon the outdated cost estimates. Appellees counter that had the D & RG Regional Alignment cost estimate been updated, there would have been a proportional increase, and thus, the relative cost relationships would have remained the same. Aplee. Br. at 34-35. This is pure speculation because there is no cost methodology applicable to the D & RG Regional Alignment contained in the record. It also demonstrates why the FEIS is inadequate to meet the NEPA goals of informed decisionmaking and public comment. The second reason for eliminating the D & RG Regional Alignment given in the FEIS was high impact to existing development. Although there is some support that the D & RG Regional Alignment would have a high impact on existing development, we conclude in II.A that the record is insufficiently developed for purposes of rejecting it as impracticable under the CWA. Thus, we do not decide whether the high impact rationale is adequately explored and sufficiently discussed to comply with NEPA. B. Narrower Right of Way The Appellants claim that NEPA was violated by the Agencies’ failure to consider a narrower right of way (“ROW”) for the Legacy Parkway as a reasonable alternative in the FEIS. While the Legacy’s ROW could have been as narrow as 110 feet, I Aplt.App. at 114, the Legacy ROW, at almost 330 feet, will be the widest four lane highway in Utah. Aplt. Br. at 29. The median is to be 65.6 feet wide. The lanes, shoulders, maintenance strips, and fill slopes are collectively to be 176 feet. I Aplee. App. at 112. Additionally, there is to be a berm, utility corridor, and trail system within the ROW. The Appellants adduce that the berm and utility corridor will expand the ROW by 65 to 75 feet, and that the trail system will expand the ROW by about 100 feet. Aplt. Reply Br. at 8 (citing IV ApltApp. at 1373 (letter dated 1997 from Weber Basin Water Conservation District asking UDOT for 65-75 feet in the Legacy ROW for Beaver Pipeline); IV ApltApp. at 1315 (article from newspaper saying ROW was being increased by 35 yards to accommodate trails)). Contrary to the measurements provided by the Appellants in their Reply, Figure 2-9 of the Legacy Parkway June 2000 FEIS allocates only 13.1 feet for trails, 25.9 feet for a future utility corridor, and 33.1 feet for the berm. II ApltApp. at 625; I Aplee. App. at 507 (trails). NEPA requires that the Agencies “[rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a). The range of alternatives that the agency must consider is not infinite, of course, but it does include all reasonable alternatives to the proposed action. The APA’s reasonableness standard applies both to which alternatives the agency discusses and the extent to which it discusses them. City of Grapevine v. De partment of Transp., 17 F.3d 1502, 1506 (D.C.Cir.1994) (citation omitted). 1.Median Width The Appellants argue that the Applicant chose the wide median so that the Legacy Parkway could be expanded in the future from four to six lanes, and that the Agencies have failed to consider whether a narrower median is a reasonable alternative in the FEIS. While acknowledging that there is “ample space” for two additional lanes within the current median, I Aplee. App. at 287 (FEIS), the Appellees insist that the 65.6-foot median is necessary for both water quality and safety. Aplee. Br. at 36-37. While the safety justification does not appear to be discussed in the FEIS, the water quality justification is elaborated on as follows: The median ... would serve as a vegetated buffer to filter runoff and minimize concentrated discharges. These vegetated medians would have to be maintained to satisfy water quality certification requirements. If replacing these vegetated medians with additional highway lanes is ever proposed, environmental clearances would be necessary and replacement of the water quality functions of the vegetated medians would be required. I Aplee. App. at 287 (FEIS § 2.2.1). See also I Aplee. App. at 611-12 (FEIS, table 4^40); II Aplee. App. at 811 (FEIS, App. Q). Although none of the cited materials explain exactly how large a vegetated median is necessary to filter pollutants out of the runoff, the FEIS demonstrates that the Agencies concluded that a narrower median would require a substitute water quality control facility. We hold that the Agencies gave a reasonable explanation for selecting the median width and, therefore, satisfied the requirements of NEPA’s 40 C.F.R. § 1502.14(a). As we discuss in II.B, infra, the explanation is insufficient for CWA purposes, given the different standards involved. 2. Trail System The Appellants allege that the trail system was added to the ROW to gain public support for the Legacy Parkway. Aplt. Br. at 31 (citing to I Aplt.App. at 303 (1997 meeting minutes)). The Appellants have not provided any authority to support the premise that it is a violation of NEPA to consider what will receive public support in designing a project; and, the FEIS discusses the trail system in detail in Chapter 4: Environmental Consequences, I Aplee. App. at 506-10. 3. Berm and Future Utility Corridor The Appellants charge that the berm and the future utility corridor are actually the Beaver River Pipeline in disguise. The Appellees explain that the berm and utility corridor are to serve multiple purposes including protecting the trails and neighborhoods from highway noise and view, and providing a future joint utility corridor. Aplee. Br. at 37; I Aplee. App. at 286, 506-07. Furthermore, the Agencies gave a detailed and reasonable response to comments alleging the intentional concealment of the Beaver River Pipeline’s relationship to the Legacy Parkway. IV Aplee. App. at 1323-24. The Agencies have satisfied the requirements of NEPA as to the berm and future utility corridor components of the Legacy ROW. C. “Maximum Transit” Alternative Appellants assert that the Agencies violated NEPA by inadequately evaluating whether mass transit was a reasonable alternative to the Legacy Parkway. Appellants have raised a host of contentions under this issue. 1.Failure to Respond to Recommendations and Criticism of an FHWA Headquarter’s Expert that No Alternative Analysis had been done on Aggressive Transit Appellants protest that the FHWA approved the Legacy Parkway without responding to the recommendations and stinging criticism of the transit analysis from a leading expert from headquarters. Aplt. Br. at 34. The Appellants identify this headquarters expert as Dr. Bruce Spear, and point out that the Appel-lees have cited to nothing in the record indicating that they made any effort to undertake Dr. Spear’s recommendations or to explain why they rejected them. The Appellants conclude that “[a] decision is arbitrary and capricious if an agency ignores the uncontradicted advice of any expert, let alone its own.” Aplt. Reply Br. at 14 (citing Northern Spotted Owl v. Hodel, 716 F.Supp. 479, 483 (W.D.Wash.1988)). To support their argument, the Appellants cite to a five-page document entitled “Comments on the Sierra Club Critique of the Travel Demand Models for the Legacy Parkway FEIS and WFRC Response.” Ill Aplt.App. at 1137-41. No date or name appears on the document. The Appellants also cite to Dr. Spear’s curriculum vitae which appears at IV Aplt.App. at 1249. While this does establish that Dr. Spear works for the United States Department of Transportation, it does not establish a date or author for the five-page “Comments” document. Consequently, the Appellants have established only that the author of the “Comments” document had a difference of opinion on whether aggressive transit had been adequately considered as a reasonable alternative. The author’s opinion was clearly not “un-contradicted.” I Aplee. App. at 267-80. Even assuming that the author of the “Comments” document was an expert, it is well established that agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious. Custer County, 256 F.3d at 1036. Therefore, the Appellants have failed to establish a violation of NEPA as to this document. 2. Unexplained Failure of Agencies to Perform a More Complete Alternative Transit Analysis Appellants assert that the Agencies violated NEPA by not requiring the more complete alternative transit analysis recommended by the Applicant’s contractor. Aplt. Br. at 34-35. NEPA requires that an agency “[rigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). However, there is nothing in NEPA to suggest that the transit alternative could not be rigorously explored and objectively evaluated absent the alternative transit analysis recommended by an Applicant’s contractor. The FEIS contains four independent methods of analysis to determine what contribution transit could make in serving transportation demand. I Aplee. App. at 275-79. The Appellants have failed to establish that the Agencies acted improperly in not performing the analysis recommended by the contractor. 3. Use of Erroneous Ridership Projections The Appellants next take issue with the light rail ridership estimates. The Agencies assumed only 14,000 daily riders by the year 2010. Yet actual daily ridership of UTA’s new commercial light rail system has been approximately 19,000 since operations commenced in December 2000. The Appellees rebut that while daily ridership has been higher than predicted, the peak-hour ridership has been nearly equal to predictions. I Aplee. App. at 278. The FEIS ridership projections are for peak-hour ridership, not daily ridership. This argument is without merit. 4.Use of Outdated Survey Results The Appellants attest that the Agencies relied on outdated and questionable “household survey” results to determine the public’s interest in using mass transit. As support, the Appellants cite to a document prepared for the Sierra Club by a Ph.D. student and a professor at the University of California, Davis, in September of 1998, reviewing the WFRC’s Travel Forecasting Model, I ApltApp. at 398, and what appears to be a flyer for Envision Utah, III ApltApp. at 985. Due to the poor quality of the copy, the court was unable to read a large portion of the flyer. However, Appellants tell us that it states that a recent survey indicated that 86 percent of residents favor the expansion of transit. Aplt. Br. at 35. The Appellees point out that the Travel Demand Model Peer Review found the household survey to be adequate. Ill Aplee. App. at 1054. The Agencies are entitled to rely on their own experts. Custer County, 256 F.3d at 1036. Additionally, the surveys with which the Appellants take issue were only used in two of four independent methods of projecting transit demand. I Aplee. App. at 275-77 (FEIS). The FEIS relied on the higher projection that was generated by the Financial Constraint Method which did not take into consideration the household survey. I Aplee. App. at 277, 279. We conclude that the attack on the home surveys is unavailing. 5. Failure to Consider both Commuter Rail and Light Rail Appellants’ entire argument on this issue consists only of the statement that “[t]he EIS transit analysis underestimated the potential for mass transit to meet future travel demand by failing to consider implementation of both community light rail and regional commuter rail.” Aplt. Br. at 35. The Appellants cite only to a document entitled “Inter Regional Corridor Alternative Analysis: Preliminary Alternative Screening,” which is dated March 1, 2001, and consists of two maps. I ApltApp. at 205-07. The Appellants fail to explain how maps from March 2001, establish that the Agencies were arbitrary and capricious in not including both community light rail and regional commuter rail as a reasonable alternative in the June 2000 FEIS. We, therefore, deem this argument waived for failure to brief. Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992). 6. Failure to Consider Alternative Sequencing of the “Shared Solution” The Appellants claim that an alternative sequencing of the “Shared Solution,” such that public transit is expanded before the Legacy Parkway is built, is a reasonable alternative and the FEIS is inadequate under NEPA because it failed to explore rigorously and evaluate objectively this alternative. The Shared Solution includes: (1) improving and expanding 1-15, (2) an extraordinary expansion of the public transit system, and (3) constructing the Legacy Parkway. I Aplee. App. at 285. Appendix G of the FEIS contains a detailed discussion of why the Legacy Parkway should be built before 1-15 is improved and expanded. II Aplee. App. at 729-47. However, no mention is made in Appendix G as to when the “extraordinary expansion of the public transit system” should occur relative to the Legacy and 1-15 projects. The Appellants have provided expert opinion and comments submitted to the Agencies on the importance of expanding public transit prior to constructing new roads. Ill Aplt.App. at 924, 914-15, 917, 895-96, 933, 1128. The Appellees respond that the implementation of rail transit is five to fifteen years behind the Legacy Parkway, IV Aplee. App. 1315, and argue that Utah has not begun to meet the requirements for federal rail funding. Aplee. Br. at 23. They conclude that “[rjegional transit choices that may be made in the future are not reasonable alternatives to off-set [sic] the need for new roadway construction now.” Aplee. Br. at 23. There are three problems with Appel-lees’ response. First, the expansion of public transit under consideration is broader than just rail transit. Second, the regional transit choices that are at issue here are not ones “that may be made in the future,” but are being made. The FEIS is relying on public transit to meet 12 percent of the 2020 demand and maybe the additional 10 percent of demand that will not be met under the Shared Solution. A WFRC study on the best modes of mass transit was expected to be completed in 2001. IV Aplee. App. at 1315. There is no question as to whether a regional transit choice will be made. Third, while the project may address a “need for new road construction now,” the decided focus of the FEIS and its evaluation of alternatives “is to provide a solution to meet the 2020 transportation needs of the North Corridor.” Aplee. App. 261. The estimated time to construct the Legacy Parkway and reconstruct 1-15 is seven years. II Aplee. App. at 730. Delaying the Legacy Parkway and 1-15 project until after all or part of the public transit expansion is in place is an alternative that could be reasonable and one the Agencies did not include in the FEIS, thus rendering it inadequate. ■ Appellees rely upon North Blockhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1541-43 (11th Cir.1990), holding that while an agency must consider realistic possibilities, it need not consider unreasonable, speculative possibilities. In that case, however, the panel held that a detailed discussion of a contended-for alternative (heavy rail transit) was unnecessary because nothing suggested it would have a less severe environmental impact, and it would not solve the problem at hand— surface street congestion. Id. at 1543. Here, the Agencies were not faced with an unreasonable or speculative alternative; indeed, the Agencies relied upon public transit to meet part of the demand in 2020, and simply did not take a hard look at whether public transit could alleviate the immediacy of the need for the 1-15 expansion or Legacy Parkway construction. 7. Failure to Consider Integration of the Legacy Parkway and Transit In an argument closely related to an alternative sequencing, the Appellants assert that NEPA was violated by a failure to consider integrating the construction of the Legacy Parkway with the expansion of public transit as a reasonable alternative. As discussed in I.C.6, no mention is made in Appendix G of when public transit should be expanded relative to the Legacy Project. Appellants have cited comments by the FTA and comments submitted to the Agencies discussing the significant savings to be gained by building the Legacy Parkway and expanding public transit simultaneously. I ApltApp. at 227. Appel-lees’ only response is to cite to comments in the COE’s ROD, COE, and FHWA comments made after the FEIS, and a January 2001 letter from the COE to the EPA. Aplee. Br. at 28 (citing I Aplee. App. at 61; IV Aplee. App. at 1315,1428). All of these came after the June 2000 FEIS; none of them demonstrate that integration was considered; and none of them explain why integrating the Legacy Parkway with the expansion of public transit is not a reasonable alternative. We, therefore, conclude that omitting integration as a reasonable alternative in the FEIS renders it inadequate. 8. Failure to Consider Expanding 1-15 and Transit First Appellants argue that the Agencies failed to consider whether 1-15 could be expanded without the Legacy Parkway. Appendix G of the FEIS contains a detailed discussion of options for the construction sequence. II Aplee. App. at 72ÍM7. The FEIS concludes that it would be safer, cheaper, and better for the environment to construct the Legacy Parkway prior to expanding 1-15. II Aplee. App. at 736. Although “[documentation in the administrative record indicates that 1-15 could be expanded without the Legacy Parkway,” Aplt. Br. at 36, it also demonstrates the reasonableness of the Agencies’ conclusion that it would be better to build the Legacy Parkway before reconstructing 1-15. II Aplee. App. at 729-47. As we have noted before, it is well established that agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious. Custer County, 256 F.3d at 1036. 9. Failure to Give Basis for Financial Constraints Estimates on Transit Expansion Appellants suggest that NEPA was violated because the FEIS limited the amount of transit capacity that could be developed based on assumptions of the likely future financial resources of the Utah Transit Authority (“UTA”) without setting forth those assumptions in either the FEIS or the record. Aplt. Br. at 37-38. As discussed at I.A., NEPA regulations require the agency to verify the accuracy of information supplied by an applicant. 40 C.F.R. § 1506.5(a). However, UDOT, not UTA, is the Applicant in this case. Additionally, the FEIS states and the record supports that the information used in the FEIS for projecting UTA’s future financial resources was developed by the Agencies “in consultation with the UTA,” not merely supplied by the UTA without verification by the Agencies. I Aplee. App. at 277. See also III Aplee. App. at 931 (statement made in 1998 by representative of UTA that UTA has reached the limit of its resources), 1110 (letter written in February 2000 from UTA to UDOT stating that it is confident it can meet the 10 percent of 2020 demand allocated to it “if sufficient resources can be found”); II Aplee. App. at 750 (document apparently included in the appendix to the FEIS which gives estimates of the cost and capacity of different forms of transit and citing to the Long Range Transit Analysis done by WFRC); I Aplee. App. at 268 (Table 2-1 of FEIS giving estimates of cost per mile for rail transit based on the North Front Range Transportation Alternative Feasibility Study of 1999). The fact that Appellants disagree with the financial projections that UTA and the Agencies made does not by itself make those projections inadequate. The Appellants also charge that “[t]he Federal Agencies failed to anticipate the hundreds of millions of dollars of additional revenue from the sales tax for transit projects passed by referendum in November 2000.” Aplt. Br. at 38 n. 13. However, Appellants have failed to explain how a FEIS from June 2000 violated NEPA by not anticipating a sales tax that was passed in November 2000, especially when voters had previously rejected a tax increase to support transit. Ill ApltApp. at 1019. D. Reducing Travel Demand and Alternative Land Use Scenario Alternative The Appellants contend that NEPA was violated by the FEIS’s failure to consider reducing travel demand through alternative land use scenarios in combination with mass transit as a reasonable alternative. Aplt. Br. at 40. As has been stated before, NEPA requires the rigorous exploration and objective evaluation of reasonable alternatives. 40 C.F.R. § 1502.14(a). The Agencies argue that reducing travel demand through alternative land use scenarios alone or in combination with mass transit was not a reasonable alternative. To be a reasonable alternative, it must be non-speculative, Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999); North Buckhead, 903 F.2d at 1541, and bounded by some notion of feasibility. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). In finding that a FEIS adequately considered energy conservation as an alternative, the Supreme Court noted that There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of “alternatives” put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197 (quoting Natural Res. Def. Council v. Morton, 458 F.2d 827, 837-38 (D.C.Cir.1972)). Land use is a local and regional matter. The North Corridor includes all or parts of SLC, Salt Lake County, North Salt Lake, Woods Cross, Bountiful, West Bountiful, Centerville, Farmington, Kaysville, and Davis County. I Aplee. App. at 221-22. There are, therefore, a number of local and regional governmental entities whose cooperation would be necessary to make an alternative land use scenario a reality. The Appellees replied to comments made after the FEIS that “[t]o date, [the state, regional and local entities with responsibility for land use planning] have resoundingly declined to alter their plans based upon such comments.” Aplee. Br. at 31 (citing IV Aplee. App. at 1335). We, therefore, conclude that the Agencies’ treatment of the alternative land use was adequate. E. Cumulative Effects of Six Lanes The Appellants allege that NEPA was violated by the FEIS’s failure to consider the cumulative impact of a future expansion of the Legacy Parkway from four lanes to six. “An environmental impact statement must analyze not only the direct impacts of a proposed action, but also the indirect and cumulative impacts.” Custer County, 256 F.3d at 1035 .(internal quotation omitted). See also 40 C.F.R. § 1508.25(a)(2) (scope of EIS is influenced by cumulative actions and impact). Cumulative impact is defined as: 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. The Tenth Circuit has “expressed the test for whether particular actions could be considered cumulative impacts of the proposed action as whether the actions were so interdependent that it would be unwise or irrational to complete one without the others.” Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 430 (10th Cir.1996) (internal quotation omitted). In Airport Neighbors, the City of Albuquerque had a master plan for the city’s airport which set forth a construction schedule in three phases over 20 years. The plan included upgrading one runway to accommodate commercial jet traffic, reconstructing another runway, expanding the terminal facility, constructing a second parking structure, building a new cargo services building, expanding surface access roads, and relocating rental car facilities. Id. at 428. The appellants challenged an environmental assessment covering only the runway upgrade as being inadequate under NEPA because it failed to consider the cumulative impacts of the other components of the plan. The appellees responded that the runway upgrade was independent from the plan and that the other components of the plan were merely elements that might be complemented over a twenty-year period. Id. The court found that the record suggested that the city would upgrade the runway even if the other components of the master plan were not implemented. Id. at 431. The court concluded that the components of the plan were not so interdependent that it would be unwise or irrational to complete the runway upgrade without them. Id. According to the court, requiring a cumulative EIS to analyze possible future actions in a twenty-year master plan would result in a misallocation of resources, and would undercut NEPA’s objective of useful environmental analysis regarding major federal actions. Id. In this case, the Appellants assert that it is reasonably foreseeable that the Legacy Parkway will be expanded to six lanes because of the “Note” in the Evaluation Report that the wide median is necessary for the possible addition of two lanes, I Aplee. App. at 111, the fact that the FEIS points out that there is ample room in the median for two additional lanes, I Aplee. App. at 287, the suggestion that the Legacy Parkway be expanded to six lanes by 2015 in the WTC MIS, ApltApp. at 880, and the fact that the Shared Solutions Plan will only meet 90 percent of the demand projected for the year 2020, I Aplee. App. at 623. The Agencies argue that they reasonably concluded that the FEIS did not need to consider the potential impacts of an expansion to six lanes because the Legacy Parkway has been defined as a four-lane highway in the FEIS, I ApleeApp. at 167, the FHWA’s ROD, I Aplee. App. at 2, the COE’s ROD, I Aplee. App. at 39, the § 404(b)(1) Evaluation Report, I Aplee. App. at 111, and the COE’s Permit, I Aplee. App. at 124. The only place that six lanes were proposed was in the Western Transportation Corridor (“WTC”) MIS. Additionally, the record shows that the Agencies considered whether the cumulative impacts of adding two lanes needed to be included in the FEIS and determined that it did not. IV Aplee. App. at 1191,1253. Under the arbitrary and capricious standard of review, this court must give the Agencies’ decision substantial deference. After an examination of the authority cited by the parties, we conclude that the Legacy Parkway as currently planned and the possible addition of two lanes are not so interdependent that it would be unwise or irrational to complete one without the other. Airport Neighbors, 90 F.3d at 430. Therefore, it was unnecessary to include the cumulative impact of any potential expansion to six lanes in the EIS. F. Failure to Consider Land Use Impacts An EIS must analyze not only the direct impacts of a proposed action, but also the indirect impacts of past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. See Custer County, 256 F.3d at 1035. Indirect impacts are defined by the NEPA regulations as being “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable .... [They] may include growth inducing effects.... ” 40 C.F.R. § 1508.8(b). Appellants consider the FEIS to be inadequate under NEPA because it does not consider the land use impacts that the Legacy Parkway will have on the North Corridor. Aplt. Br. at 47. “In reviewing the adequacy of a final environmental impact statement we merely examine whether there is a reasonable, good faith, objective presentation of the topics [NEPA] requires an [EIS] to cover.” Colorado Envtl. Coalition, 185 F.3d at 1172 (internal quotations omitted). The FEIS states that: Consultations with local planners indicate that ultimate growth patterns and planned land uses would not change as a result of building the Legacy Parkway. However, the type of development that would occur around the area of the Legacy Parkway interchanges (at 500 South and at Parrish Lane) would likely be different than the type of development that would occur without the Parkway. ... [Therefore, the development would occur sooner with the Parkway than without it.” I Aplee. App. at 443. See also I Aplee. App. at 451-52. The Appellants argue that the FEIS’s conclusion that there would be no land use impacts attributable to the Legacy Parkway is circular and illogical “because municipal planners had already modified their land use plans to accommodate the sprawl development that will be caused by construction of the Legacy Parkway.” Aplt. Br. at 47-48. The Legacy Parkway has been under consideration in some form or another since 1996 and most if not all of the local governments in the North Corridor have revised their land use plans in the intervening six years. We reject Appellants’ challenge. First, there is some authority for allowing agencies to rely on local planning documents in an EIS to establish that a proposed highway will not result in further growth. Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 524 n. 6 (9th Cir.1994). Such reliance may readily show that land use impacts may be nil because the surrounding land at issue is already developed or is otherwise committed to uses that were not contingent on the project under consideration. City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1162 (9th Cir.1997). Second, the FEIS states that the Agencies consulted with local planners, not local plans. Appellees’ citations to local plans that reflect the Legacy Parkway does not prove that the local planners were not able to advise the Agencies of what land use would occur without the Legacy Parkway. Appellants additionally note that the FEIS’s finding of no land use impacts was criticized by other agencies. However, NEPA requires agencies preparing an EIS to consider and respond to the comments of other agencies, not to agree with them. Custer County, 256 F.3d at 1038 (citing 40 C.F.R. § 1503.4). The record indicates that the Agencies considered and responded to the comments of other agencies. Many of the criticisms cited by the Appellants in their brief were made early in the NEPA process and do not reflect the agencies’ final positions on this issue. IV Aplee. App. at 1255. The FEIS’s conclusion that the Legacy Parkway would not impact land use does not render the EIS inadequate. G. Failure to Consider Impacts to SLC Appellants assert that the FEIS is inadequate under NEPA because it did not consider the impact construction of the Legacy Parkway will have on SLC. Appellants’ brief contains a list of twelve alleged impacts to SLC that the FEIS failed to consider. Aplt. Br. at 55. As noted above, issues will be deemed waived if they are not adequately briefed. Phillips, 956 F.2d at 954. We do not consider merely including an issue within a list to be adequate briefing. Therefore, we will consider only those impacts Appellants briefed which include (1) the FEIS’s failure to consider whether the' proposed Legacy Parkway is consistent with the SLC Transportation Master Plan, (2) the FEIS’s failure to analyze the impact increased auto congestion will have on SLC, and (3) the FEIS’s failure to consider the social and economic impacts that increased congestion will have on SLC. The Agencies responded on at least one occasion to comments expressing concern about impacts on SLC from the construction of the Legacy Parkway by stating that the purpose of the Legacy Parkway was not to bring more cars to SLC. IV Aplee. App. at 1314.1. As the Appellants point out in their brief, purpose and intent respecting a project’s impacts are irrelevant. Agencies must evaluate all reasonably foreseeable project impacts regardless of whether they are intentional. Aplt. Br. at 57. See also 40 C.F.R. §§ 1502.16(b), 1508.8(b). 1. Consistency with the SLC Transportation Master Plan NEPA regulations require that: To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws ... [w]here an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law. 40 C.F.R. § 1506.2(d). The Appellants charge that the Agencies did not discuss the inconsistency between the SLC Transportation Master Plan and the Legacy Parkway and did not describe the extent to which the Agencies would reconcile the proposed action with the plan. See III ApltApp. 829. The Appellants based their assertion of inconsistency on the fact that the SLC Transportation Master Plan indicated that the City had shifted priorities to mass transit and multiple forms of transportation and away from increasing road capacity and meeting the needs of the single-occupant automobile. Aplt. Br. at 56. The Agencies reviewed and the FEIS describes eight different SLC transportation plans, including the SLC Transportation Master Plan of 1996. I Aplee. App. at 229; see also I Aplee. App. 451. Many of these plans anticipate an increase in travel demand in SLC, and some specifically recommend construction of a new north-south highway. Aplee. App. at 231. Furthermore, a map from the SLC Transportation Master Plan of 1996 shows a proposed West Davis Highway running north from SLC and located west of 1-15. IV Aplee. App. at 1555. The Appellants have not cited any place in the SLC Transportation Master Plan where all new road construction was opposed. Shifting priorities and opposing any and all new construction are different things. Therefore, the EIS is not inadequate on this basis. We find that the FEIS’s apparent conclusion that the Legacy Parkway project was not inconsistent with SLC’s plans does not render the FEIS inadequate. 2. Impact Increased Auto Congestion will have on SLC Appellants assert that the FEIS failed to discuss the impact increased auto congestion caused by construction of the Legacy Parkway will have on parking, arterial and side streets, and pedestrian and bicycle safety in SLC. The Agencies only have a duty to discuss in the FEIS impacts that are reasonably foreseeable. Even as to impacts that are sufficiently likely to occur such that they are reasonably foreseeable and merit inclusion, the FEIS need only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project. Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992). See also Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C.Cir.1981) (“NEPA does not require federal agencies to examine every possible environmental consequence. Detailed analysis is required only where impacts are likely.”). Both the Agencies’ comments and the FEIS note that with or without the Legacy Parkway there will be a substantial increase in travel demand in SLC by 2020. The FEIS calculated the percentage of the total demand in 2020 that will be caused by the construction of the Legacy Parkway at 3.3 percent or less. I Aplee. App. at 258-59. The 3.3 percent estimate includes all traffic in both directions. When adjusted for the directional split, the fact is that while a portion of the traffic is headed in the peak direction, the other portion is traveling in the off-peak direction, and only 1.98 percent of the travel demand going to SLC in 2020 will be caused by the construction of the Legacy Parkway. While the Appellants still consider this to be a significant amount, the Agencies reasonably concluded that this amount was too small for its inclusion in the FEIS to be reasonably necessary under the circumstances for evaluation of the project. Sierra Club, 976 F.2d at 767. 3. Social and Economic Impacts that Increased Congestion will have on SLC. As discussed above, the Agencies reasonably concluded that construction of the Legacy Parkway would not increase congestion in SLC sufficiently to merit inclusions in the FEIS. Therefore, the failure to consider the social and economic impacts of this insignificant increase does not render the EIS inadequate. H. Failure to Consider Growth and Land Use Impacts on Areas North of the Legacy Parkway Appellants take issue with the FEIS’s failure to consider the growth and land use impacts construction of the Legacy Parkway will have on the areas north of the project area. To show that this omission was unreasonable and in violation of NEPA, they quote from an undated, untitled, anonymous document which states “It is more likely that the [Legacy Parkway and 1-15] projects will influence growth and property build-out in areas further north of the projects [than in the project corridor].” Ill ApltApp. at 1118. In contrast, the FEIS states that “it is expected that growth patterns and planned land use north of the Legacy Parkway would not change as a result of building the Legacy Parkway.” I Aplee. App. at 443. Additionally, the Appellants note that, according to the minutes of the April 26, 2000 Federal Agency Meeting to Review FEIS Comments, while discussing Issue 12: land use discussion between the build and no-build scenarios, the EPA expressed more concern about growth and land use impacts caused by the construction on the area north of the project than on the project area. Ill ApltApp. at 1048. First, Appellants’ document shows only that at some unknown point in the process an unknown participant felt that the Legacy and 1-15 projects were more likely to cause growth and land use impacts north of the project area than within the project area. Differences of opinion during the process between some participants does not by itself make the final conclusion of the Agencies unreasonable. Second, the NEPA requires Agencies to consider and respond to the comments of other agencies, not agree with them. Custer County, 256 F.3d at 1038 (citing 40 C.F.R. § 1503.4). The Appellees counter that at an April 27, 2000 meeting, while discussing Issue 12: discussion of land use impacts between the no-build and build scenarios, the timing of development for lands north of the study area was discussed and revisions to the FEIS were made. IV Aplee. App. at 1194,1205. Additionally, at a June 8, 2000 meeting which the EPA attended, Issue 12 was again discussed and the issue was resolved. IV Aplee. App. at 1255. The FEIS is not inadequate on this basis. I. Impacts to Wetlands An EIS must analyze the indirect impacts of a proposed action. Custer County, 256 F.3d at 1035. Indirect impacts are defined as being caused by the action and are later in time or farther removed in distance but still reasonably foreseeable. 40 C.F.R. § 1508.8(b). The Appellants allege that the Agencies violated NEPA by their inadequate analysis of impacts on wetlands. After reviewing the FEIS, especially chapters three and four, we find that the indirect impact on wetlands analysis is not inadequate to the point of being arbitrary and capricious. I Aplee. App. at 325-441; 442-617. The Appellants also contend that NEPA was violated because the Agencies: (1) failed to classify the wetlands into subcategories, (2) failed to take actual field data, (3) assumed that land use changes within 1000 feet of a wetland perimeter adequately predicted the wetlands’ level of functionality, and (4) used the Everglades HGM Regional Guidebook. 1. Failed to classify wetlands into subcategories as required by HGM protocols The Appellants argue that the Appellees acted arbitrarily and capriciously by violating the hydrogeomorphic methodology (“HGM”) protocols by only classifying the wetlands into the general categories of groundwater slope, basin de-pressional, and lacustrine fringe without providing an explanation in the record. Aplt. Br. at 64 (citing 62 Fed.Reg. 33,609-10 (“NAP”)). The Appellees assert that the Legacy HGM was merely guided rather than limited by the NAP and point out that early analyses that included sub-classifications did not increase the accuracy of the model over the use of the basic classifications. The Appellants’ contention that the subcategories were omitted without explanation in the record is simply inaccurate. The FEIS states that: Initially, the wetlands were characterized by HGM category and then each category was subdivided into subclasses, based upon the primary wetland vegetative community. These subclasses were used in the development of various HGM models. Many of these vegetative communities were mapped separately, but are part of a larger depression or basin. After the HGM model was initially developed, it was found that using these subclasses of smaller vegetative communities produced results that do not accurately reflect the way these wetlands are performing their functions. Consequently, subdivision into vegetative subclasses was eliminated and the wetlands functional models are now based on the more general HGM categories (lacustrine fringe, groundwater slope and basin depressional wetlands). I Aplee. App. at 390-91. It is arbitrary and capricious not to follow a protocol without giving a rational explanation. Big Horn Coal Co., 793 F.2d at 1169 (citations omitted) (“Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures.”). See also Midwestern Transp., Inc. v. Interstate Commerce Comm’n, 635 F.2d 771, 777 (10th Cir.1980) (“[T]he court must require the agency to adhere to its own pronouncements or explain its departure from them;....”); Squaiu Transit Co. v. United States, 574 F.2d 492, 496 (10th Cir.1978) (same). Here, however, even accepting the contention that protocols were not followed, a rational explanation was given. I Aplee. App. at 390. The Appellants respond in their reply brief that “[i]f Agencies’ initial subclassifi-cation was inadequate, the appropriate response was to improve, not abandon the necessary work.” Aplt. Reply Br. at 25. It is well established that agencies are entitled to rely on their own experts so long as them decision is not arbitrary and capricious. Custer County, 256 F.3d at 1036. The fact that the Appellants consider the experts’ decision to be an inappropriate response does not render the FEIS inadequate. 2. Failed to take actual field data for developing the functional profile. The Appellants contend that NEPA was violated by the Agencies’ failure to develop functional profiles for each wetlands subclass within the affected region and to identify and collect field data on measurable ecological attributes. Aplt. Br. at 65. As discussed immediately above, the Agencies gave a rational explanation for not classifying the wetlands into subcategories. It would not be rational to require the Agencies to develop functional profiles for each subclass when they were not required to identify subclasses. See supra I.I.l. The Appellants’ claim that the Agencies failed to identify and collect field data on measurable ecological attributes is contradicted by the record. IV Aplee. App. at 1378, 1379, 1380, 1557; III Aplee. App. at 1122.4. Additionally, we find it significant that the NAP states, “The functional profile is based on the experience and expertise of the A-team [assessment team] and information collected from reference wetlands.” 62 Fed.Reg. 33,607, 33,610 (June 20, 1997). 3. Assumed land use changes within 1000 feet predicted the wetlands’ level of functionality. The Appellants allege that the Agencies violated the HGM protocols by treating all three types of wetlands as having the same functions and associated indicators based on the assumption that land use changes within 1000 feet of the wetlands’ perimeter adequately explains variations in the wetlands’ function. Aplt. Br. at 66. Appellants cite to a 1993 Wetlands Research Program Technical Report that states, “Each population of wetland types or classes would be identified with a unique list of functions and associated indicators. (If the list is not unique in some way for the wetland type, then it is probably not adequate for assessment. In other words, the classification was not specific enough and the functional profile was not adequately prepared.)” I Aplt.App. at 82 (Mark Brinson, “A Hydrogeomorphic Classification for Wetlands”). The NAP instructs that “[t]he functional profile is based on the experience and expertise of the A-team and information collected from reference wetlands.” 62 Fed.Reg. at 33,610. Based on their experience and expertise, the A-team concluded that the amount and degree of anthropogenic influences either within or surrounding a wetland serve as an indicator of the level of wetland functionality. This assumption was based on several regional guidebooks developed in Florida and research completed in Canada. Ill Aplee. App. at 1122.2. Additionally, information was collected from reference wetlands that verified the model. IV Aplee. App. at 1379, 1380. Consequently, this court is unable to say that this decision of the Agencies’ experts renders the EIS inadequate. See Custer County, 256 F.3d at 1036. 4. Use of the Everglades HGM Regional Guidebook The Appellants contend that use of the Everglades HGM Regional Guidebook by the A-team conducting the Legacy HGM was arbitrary and capricious because the Guidebook “state[s] that it is a guidebook designed to apply to only certain types of depressional wetlands in Florida, that using the guidebook for other types of wetlands even in Florida was inappropriate, and that other guidebooks will be developed for assessing the functions of other types of Florida depressional wetlands.” Aplt. Br. at 68 (citing to II ApltApp. 698A which is from a 1997 Field Test Draft of the Everglades HGM Regional Guidebook). However, no such statement appears on the page cited by Appellants. Additionally, the record shows that the A-team considered other documents before deciding to use the Everglades HGM Regional Guidebook. Ill Aplee. App. at 1122.2-22.3. J. Failure to Consider Impacts to Wildlife The Appellants charge that the FEIS is inadequate and violates NEPA regulations because: (1) only wildlife impacts within 1000 feet of the ROW were considered, (2) the FEIS contains inadequate wildlife impact analysis; (3) the Agencies failed to adequately consider noise impacts on wildlife; and (4) wildlife impact and success of mitigation were not considered in light of the dynamic cycle of the GSL. Because we find that the wildlife impact analysis is inadequate under NEPA because the 1000 foot radius excluded consideration of impacts on migratory birds, it is not necessary to reach (2)-(4). 1. Only considered impacts to wildlife within 1000 feet of project Appellants contend that the FEIS violated NEPA by only considering impacts on wildlife habitat within an arbitrary 1000 foot distance from the right of way. I Aplee. App. 558, 565. This was done even though the FWS presented evidence to the Federal Agencies that roads can cause significant adverse effects to bird populations as far as 1.24 miles from roadways, especially in open terrain like that adjacent to the proposed Legacy Parkway. Aplt. Br. at 69. In response to a comment that was submitted alleging that the 1000-foot distance was chosen arbitrarily, the Federal Agencies made the following response: The HGM model used 1000 feet because the data we collected for land use (which extended to 1 mile from the edge of the wetland) did not result in any statistical difference from the data collected at 1000 feet. Aplee.App. at 1322 (Response to Comments, October 26, 2000). However, by only evaluating impacts to habitat structure within 1000 feet of the roadway, the Applicant and Agencies effectively limited any assessment of wildlife use and value to smaller, less mobile species and ignored the primary concern of many public and private entities: impacts to the GSL ecosystem and its ability to continue as a nationally and internationally significant wildlife use area, particularly for migratory birds. I ApltApp. at 355 (April 2000 letter from FWS to UDOT). The record repeatedly and without contradiction indicates that the 1000-foot limit used in the FEIS does not allow for consideration of impacts on migratory birds. I Aplee. App. at 401 (FEIS) (noting that because birds have a migratory range up to miles they are beyond the scope of the assessment model); IY Aplee. App. at 1267 (July 2000 Wetland QC Report Legacy Parkway) (same); I ApltApp. at 223 (December 1999 Meeting Minutes) (“UDWR and FWS comment that the barrier variable does not take into account the impact to avian species. Response: That information cannot be included in the HGM model, it’s too specific. It will have to be assessed elsewhere.”); ApltApp. at 339 (June 2000 letter from FWS to FHWA) (“[T]he extent of many potential impacts to wildlife had not been quantified by HGM or any other approach.”). While we recognize that the failure “to employ a particular method of analysis” in an EIS does not render it inadequate, Utah Shared Access Alliance, 288 F.3d at 1212, here the FEIS simply is inadequate to address the impact on migratory birds. The Appellees respond that they fully explained the rationale for their decision to study indirect wildlife impacts in a 1000 foot zone on each side of the Parkway right-of-way, Aplee. Br. at 58. However, their only citation in support of this statement is a response to a comment from October 2000 that does not address their own admission that birds were beyond the scope of the HGM. IV Aplee. App. at 1322; I Aplee. App. at 401. Further, this response regarding statistical differences in “land use” is so unclear as to make us question whether it even relates to the effects on wildlife. The Appellees also reply that 317 acres of land preservation were added to the mitigation package because of the criticisms. Aplee. Br. at 57. Increasing the mitigation package, however, does not resolve the inadequacy of the FEIS’s wildlife impact analysis. Given that some two to five million birds use the GSL each year, a large portion of which are migratory birds, we find that limiting the wildlife impact analysis so that migratory birds are beyond its scope renders the FEIS inadequate. K.Air Quality Impacts In response to comments on the DEIS, the FEIS increased by two million its estimate of Vehicle Miles Traveled (“VMT”) per day in 2020 under both the no-build and build scenarios. Compare II ApltApp. at 529 (DEIS estimating VMT in 2020 at 46 million), with II ApltApp. at 775 (FEIS estimating VMT in 2020 at 48 million). Additionally, the FEIS attributed 3.3 percent of the total project demand for 2020 to latent demand. II Aplt. App. at 562. Appellants assert that the FEIS is inadequate because the air pollution analysis was not adjusted to reflect the increase in VMT or the latent demand. Aplt. Br. at 76. The FEIS did not recalculate the impact on air pollution, compare III ApltApp. at 526, with III ApltApp. at 603. This was because of the addition of a fourth county to the revised model, was explained in the FEIS, and does not make the FEIS inadequate. Ill ApltApp. at 603. As explained in the FEIS, latent demand is the portion of total demand that is influenced by the presence of impediments to travel. Ill ApltApp. at 559. It does not represent an increase in total demand. Therefore, not adjusting the air pollution impact analysis because some of the total demand was attributed to latent demand does not make the FEIS unscientific or inadequate. The Appellants also argue that some of the comments requested that the FEIS include a hot spot analysis and that its absence is a violation of FHWA guidance documents and agency practice in other parts of the country. Aplt. Br. at 78. However, the Appellants failed to provide any support for this claim in their opening brief. The FEIS explained that because all intersections were anticipated to perform at a service level of C or higher, no hot spot analysis was required. II Aplt. App. at 604. The FEIS is not inadequate on this basis. L. Failure to Disclose Unresolved Issues Relying upon 42 U.S.C. § 4332 and 23 C.F.R. § 771.125(a)(2), Appellants contend that the FEIS is inadequate for failing to disclose unresolved issues, specifically where the Agencies’ own experts and consultants may have expressed disagreement. Aplt. Br. at 79. We believe that this issue has already been adequately addressed in the context of Appellants’ various challenges and does not warrant discussion, particularly because Appellants have failed to identify exactly which issues remain unresolved and have failed to brief the issue adequately. M. Failure to Insure Accuracy of the FEIS Appellants argue that the Federal Agencies involved abandoned their obligation under NEPA to evaluate submitted information independently and insure the accuracy of the FEIS. 40 C.F.R. § 1506.5(a); 23 C.F.R. 771.109(c)(1). They rely upon the lack of any independent evaluation of project costs submitted by UDOT. Aplt. Br. at 81. This issue has already been adequately addressed above and does not warrant additional analysis. See supra LA. and IIA N. Failure to Insure Professional and Scientific Integrity of the EIS NEPA imposes an affirmative duty on federal agencies to “insure the professional integrity, including scientific integrity, of the discussions and analyses in the environmental impact statements.” 40 C.F.R. § 1502.24. The Appellants advance that the Federal Agencies violated this duty as to the HGM model, the travel demand model (“TDM”), and by using different versions of the VMT model. Aplt. Br. at 82-85. Because we have addressed Appellants’ arguments about the HGM model and use of different versions of the VMT model above, we now consider only the TDM. See supra I.I and I.K. The WFRC’s daily TDM predicts that building the Legacy Parkway will result in congestion speeds being reduced from 11.4 mph to 6.9 mph but an increase in VMT. I Aplee. App. at 62 (correcting FEIS chart in II Aplee. App. at 780). The Appellants conclude that this result is illogical and inconsistent with the stated goals for the FEIS. The Appellees explain that “this result is tied to a change in the parameters used in the no-build and the ... build alternatives. WFRC made a rational judgment to change the parameter so that the model could more accurately reflect the public’s likely response to extreme congestion,” that response being that some travelers will take a more circuitous route to avoid congestion. Aplee. Br. at 74. See also IV Aplee. App. at 1333 (Response to comment on decreased congestion speed under build alternatives), 1334. The Appellees also indicate that only the daily TDM predicts lower congestion speeds under the build alternatives while the AM and PM TDMs predict higher congestion speeds under the build alternatives. Applying the rule of reason and overlooking minor technical deficiencies, the TDM does not render the FEIS inadequate. See Swanson v. United States Forest Serv., 87 F.3d 339, 343-44 (9th Cir. 1996). O. Segmentation of Transportation Projects Travel demand projections for the North Corridor indicate that by 2020 a range of multi-modal transportation solutions will be needed to accommodate the safe and efficient movement of people and goods. The Legacy Parkway will provide a portion of the transportation facilities needed as one element of the “Shared Solution” transportation plan. The Shared Solution also includes reconstruction and expansion of 1-15 to ten lanes, and expansion of the public transit system. II Aplt. App. at 567. According to the FEIS, the 1-15 project “is being proposed concurrently with the Legacy Parkway,” but the results of this evaluation are being reported in a separate EIS. II ApltApp. at 551. The FEIS for the 1-15 project was scheduled to be completed by mid 2000 with construction to begin in 2008 after completion of the Legacy Parkway. II ApltApp. at 620A, 570 (FEIS). If the Legacy Parkway is not constructed, the FEIS indicates that it would not be reasonable to proceed with the 1-15 project because of the “unlikely chance that any advantages whatsoever would develop compared to the extreme cost to travelers.” II ApltApp. at 570. NEPA instructs that significant cumulative impacts are not to be made to appear insignificant by breaking a project down into small component parts. 40 C.F.R. § 1508.27(b)(7). NEPA’s description of the proper scope of an EIS in 40 C.F.R. § 1508.25 instructs that (1) connected actions should be discussed in the same EIS, and (2) similar actions should be discussed in the same EIS when the best way to assess adequately the combined impacts of the similar actions or reasonable alternatives to such actions is to treat them in a single impact statement. 40 C.F.R. §§ 1508.25(a)(1), (3). A connected action is defined as being closely related to other actions and is identified based on three factors: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification. 40 C.F.R. § 1508.25(a)(1). Similar actions are actions that “when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.” 40 C.F.R. § 1508.25(a)(3). “Generally [under NEPA], segmentation of highway projects is improper for the purpose of preparing environmental documentation.” Ross v. Federal Highway Admin., 162 F.3d 1046, 1049 n. 3 (10th Cir.1998) (citing Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1483 (10th Cir.1990)). However, the rule against segmentation is not required to be applied in every situation. To determine the appropriate scope for an EIS, courts have considered such factors as whether the proposed segment (1) has logical termini, (2) has substantial independent utility, (3) does not foreclose the opportunity to consider alternatives, and (4) does not irretrievably commit federal funds for closely related projects. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir.1981) (citing cases from the 7th Cir., 9th Cir., and 8th Cir.); Ross, 162 F.3d at 1049 n. 3 (applying same test to portion of a highway project that was segmented in an attempt to avoid NEPA requirements as to that portion); Village, 906 F.2d at 1483 (applying same test to local bridge in determining that it was not segmented improperly from a federal project). This test seems to come in part from 23 C.F.R. § 771.111(f). See also Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C.Cir.1987). In Custer County, 256 F.3d at 1037, we noted that projects that have “independent utility” are not “connected actions” under 40 C.F.R. § 1508.25(a)(l)(ni). An inquiry into independent utility reveals whether the project is indeed a separate project, justifying the consideration of the environmental effects of that project alone. Piedmont, 637 F.2d at 440. The Appellants assert that NEPA requires that a single EIS be prepared for the Legacy Parkway, the 1-15 project, and the expansion of the public transit. Aplt. Br. at 86. They characterize all three projects as connected and similar actions and as interdependent parts such that the “best way” to assess adequately the combined impacts of the three components and reasonable alternatives both to and among the components is “without doubt” a single EIS. Id. at 88-89. Appellants rely upon the FEIS: It is not reasonable to include construction of 1-15 North in the No Build Alternative because of the unlikely chance that any advantages whatsoever would develop compared to the extreme cost to travelers. In fact, the entire cost of Legacy Parkway is economically justified, based on its value as an alternative route during reconstruction of 1-15. The Legacy Parkway is part of the Shared Solution of transportation systems management, transit, and roadways proposed for the North Corridor. The 2020 capacity needs in the North Corridor would not be met without both the Legacy Parkway and the 1-15 North Improvements, even with aggressively enhanced transit. Moreover, the North Corridor transportation needs for safety and an alternate north-south route, as well as engineering and construction constraints, compel a reasonable sequencing of construction under which the 1-15 North Improvements would occur after completion of the Legacy Parkway. II Aplt.App. 570. What this tells us is that the 1-15 reconstruction will not proceed without the Legacy Parkway, and that Legacy Parkway’s utility as an alternate route during that reconstruction alone would justify the Legacy Parkway’s cost. Applying the test contained in the regulation, 40 C.F.R. § 1508.25(a)(l)(i)-(iii), the Legacy Parkway does not “automatically trigger” the reconstruction of 1-15, or the transit expansion. The Legacy Parkway may proceed without the reconstruction of 1-15; the regulation views actions as connected if they “cannot or will not proceed unless other actions are taken previously or simultaneously.” Here, the 1-15 project will occur, if at all, subsequently. The Appellants argue that the three components of the Shared Solution require a single EIS. The FEIS estimates that the Legacy Parkway will facilitate 16 percent of the 2020 demand, the expansion to 1-15 will facilitate 8 percent, and the expanded transit will facilitate 12 percent. I Aplee. App. at 323. Each component can serve its transportation purpose whether or not the other projects are built. The components, although interrelated as part of an overall transportation plan, should individually contribute to alleviation of the traffic problems in the Northern Corridor, and are therefore not improperly segmented as separate projects. See Piedmont, 637 F.2d at 440-41 (rejecting similar argument that projects were improperly segmented). Additionally, the FEIS does not state that the 1-15 project lacks independent utility from the Legacy Project. It merely points out that, without the Legacy Parkway as an alternative route, large scale reconstruction and expansion of 1-15 would impede traffic to the point that the short-term costs of the project would outweigh the long-term benefits. II Aplt.App. at 570. Moreover, there is some evidence of coordination insofar as preparation of the EIS is concerned. I Aplee. App. at 1 (“While each project is considered separately, FHWA has developed a record that enabled the public and the decision makers to be aware of the relationship of the two projects to the overall transportation needs in the North Corridor by developing parallel Chapters 1 & 2 for the separate EIS’s.”). Given our deferential standard of review, we cannot conclude that the FEIS is deficient because the three aspects of the Shared Solution were not evaluated in a single EIS. P. Illegal Delegation of NEPA Responsibility and Oversight While admitting that an EIS for any major federal action funded under a program of grants to states is not legally insufficient solely because it was prepared by a state agency, see 42 U.S.C. § 4332(D), the Appellants argue that this EIS is legally insufficient because it was prepared by a state agency for a state-funded project, to be used by the COE to issue a § 404(b) permit. Aplt. Br. at 89. In the alternative, they argue that even if a state agency could prepare the EIS, the federal agencies did not sufficiently participate and independently review the work of the state agency and its contractors. Appellants rely on Sierra Club v. United States Army Corps of Eng’rs, 701 F.2d 1011, 1037-39 (2d Cir.1983), which held that the COE, as a permitting rather than a funding agency, should have prepared its own FEIS and not relied on the FEIS prepared by the state agency regardless of the FEIS’s accuracy. The court determined that the indicated remedial order would have been to require the COE to prepare a completely new EIS, not merely a supplemental EIS. However, the court declined to order a new FEIS because such a remedy would have required a wasteful duplication of effort as to issues the court had found adequately treated and because relief under NEPA should not be punitive. Id. at 1039. Although 40 C.F.R. § 1506.4 (“Any environmental document in compliance with NEPA may be combined with any other agency document to reduce duplication and paperwork”) and 40 C.F.R. § 1506.5(a) (environmental information submitted by an applicant does not have to be redone but must be verified by the agency) urge against redundancy, there appears to be stronger support in the CFR for the Appellants’ and Second Circuit’s positions that the wrong party prepared the EIS. Except as provided in §§ 1506.2 and 1506.3, any environmental impact statement prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency.... Contractors shall execute a disclosure statement prepared by the lead agency ... specifying that they have no financial or other interest in the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. 40 C.F.R. § 1506.5(c). Based on the clear language of § 1506.5(c), we hold that the COE and the FHWA erred to the extent they allowed UDOT or contractors hired by UDOT to prepare the FEIS. Having determined the Agencies to have been in error, we must now consider what remedy if any is appropriate. We find Associations Working for Aurora’s Residential Env’t (‘AWARE") v. Colorado Dep’t of Transp., 153 F.3d 1122, 1127-30 (10th Cir.1998) informative. In AWARE, the FEIS was prepared by a contractor hired by the Colorado Department of Transportation. The plaintiffs asserted that Colorado’s practice of awarding final design contracts to the company who prepared the FEIS gave the contractor an incentive to promote a build alternative over a non-build alternative. They contended that this incentive qualified as a conflict of interest and placed the contractor in breach of the 40 C.F.R. § 1506.5(c) requirements. Assuming without deciding that a conflict of interest existed such that a breach had occurred, the AWARE court determined that the ultimate question was whether the breach compromised the objectivity and integrity of the NEPA process and that the district court could evaluate the oversight that the agency provided to the EIS process as a factual matter and make a determination upholding the EIS. Id. at 1129. In this case, the district court’s decision does not address this issue. Appellants include four examples in their brief which they claim demonstrates the bias and result-oriented nature of the analysis of the Legacy Parkway. These items range from criticism of the tone of the EIS as advocacy to a failure to adequately consider alternatives. Aplt. Br. 90-91. We are satisfied that this case differs from Davis v. Mine-ta, 302 F.3d 1104, 1112-13 (10th Cir.2002), where this court reversed the denial of a preliminary injunction holding that federal decisionmakers prejudged NEPA issues. In Davis, a municipality had contracted with a city for a predetermined result and the federal agencies failed to exercise independent review. Id. at 1112. We find no such preordained result in this case-though it does merit our concern. We do not find the EIS inadequate based upon this procedural claim. II. CWA A. D & RG Regional Alignment The Appellants contend that the Federal Agencies applied the wrong legal standards in rejecting the D & RG alternative. Under CWA, the test is not whether a proposed project is “better” than an alternative with less wetlands impact because it would cost less and have less impact on existing and future development. The test is whether the alternative with less wetlands impact is “impracticable,” and the burden is on the Applicant UDOT, with independent verification by the COE, to provide detailed, clear and convincing information proving impracticability. Aplt. Br. at 22 (citing to selection of GSL Regional Alignment as “better” at II Aplt. App. 526 (DEIS), 568 (FEIS)). While the Appellants are correct that CWA requires that the least damaging alternative be selected unless impracticable, they are quoting from the DEIS and the FEIS which are governed by NEPA, not CWA. NEPA does not require the selection of the least damaging practicable alternative. NEPA only requires that the Agencies “[Vigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a). NEPA prescribes the necessary process, but does not mandate a particular result. Robertson, 490 U.S. at 850, 109 S.Ct. 1835. Therefore, failure to select the better alternative is not a violation of NEPA. CWA prevents the COE from issuing a § 404(b) permit if there is a less damaging practicable alternative. 40 C.F.R. § 230.10(a). Practicable is defined as “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.3(q). In its ROD, the COE found the D & RG Alignment to be infeasible because of its high cost and high impact on existing development. I Aplee. App. at 44-45. Merriam-Webster’s Collegiate Dictionary defines infeasible as impracticable. Id. at 618 (9th ed.1991). Therefore, the Appellants are incorrect in saying that the Federal Agencies applied the wrong legal standard in rejecting the D & RG alternative. The Appellants further argue that even if the impracticable test was applied, it was not met. Aplt. Br. at 23. We can set aside the COE’s action only if we find that the COE abused its discretion, or acted arbitrarily, capriciously, or contrary to law. 5 U.S.C. § 706(2)(A). Impact on existing development would appear to fall within both the cost and the logistics portion of the practicable definition. For reasons discussed at I.A., we find that the COE violated its own regulations by failing to verify the cost estimates provided by the Applicant. Thus, the high cost rationale is inadequate to uphold the COE’s permit decision. Turning to the other justification, while there is evidence that the D & RG Alignment is more highly developed relative to the GSL Alignment, that evidence simply does not adequately address whether the D & RG’s impact on existing development would be so high that it would be impracticable. See II Aplee. App. at 707.1-713, 849 (maps); II Aplee. App. at 911 (a slide presentation); II Aplee. App. at 894 (one comment submitted by a member of the public recommending that the alignment be as far west as possible to avoid gas and high voltage lines); II Aplee. App. at 943 (an e-mail between employees of the FHWA stating that impact to existing development would be severe). The burden of proof to demonstrate compliance with the § 404(b) permit Guidelines rests with the applicant; where insufficient information is provided to determine compliance, the Guidelines require that no permit be issued. 61 Fed.Reg. 30,990, 30,998 (June 18, 1996) (citing 40 C.F.R. § 230.12(a)(3)(iv)). Issuance of the permit with insufficient information concerning the D & RG Alignment was arbitrary and capricious. B. Narroiuer Right of Way The Appellants urge that the COE violated CWA by applying the wrong legal test in eliminating a narrower ROW as an alternative. Instead of requiring the Applicant to demonstrate clearly that a narrower configuration was impracticable, the COE justified the width of the ROW by explaining why the amenities would be desirable to various interests. Aplt. Br. at 31. The COE argues it reasonably concluded that a narrower ROW was not a feasible stand-alone alternative, Aplee. Br. at 36, and appropriately considered environmental, safety, and community concerns as appropriate elements of the project under review. 1. Median Width The Appellees allege that a median of less than 65.6 feet is not a practicable alternative. The Evaluating Officer concluded in the § 404(b)(1) Evaluation Report that a narrower median was not practicable based on the following considerations: (1) the visual impact of unsightly concrete barriers; (2) the hazard created by concrete barrier required in narrower medians; (3) the water quality mitigation function of the vegetated median; (4) the public preference for a parkway type facility that requires a median; (5) failure to include the median would be inconsistent with the mitigation proposed in the FEIS; and (6) failure to include the median would be inconsistent with the land use plans of local governments which have included the project as a parkway-type facility. I Aplee. App. at 110. However, on the next page, the Officer’s Roadway Requirements list contains the following quotes: “Note: Median width also necessary to accommodate possible addition of two lanes in the median shown in FEIS, Volume 1, section 2.2.1.” I Aplee. App. at 111. Although the existence of less environmentally damaging practicable alternatives must be determined in the present, the Officer’s acknowledgment that the median width is also necessary for the future addition of two lanes undercuts his conclusion that anything less than a 65.6-foot median is impracticable for this four lane highway. Regardless, the Officer’s safety reason is amorphous and brought into question by his Note. It is not clear whether a median of less than 65.6 feet requires concrete barriers or only medians narrower than the average require concrete barriers. The width under which concrete barriers are required is not quantified. Additionally, Section 2.2.1 of the FEIS states: There would be ample space for the addition of two lanes in the median. The median between the northbound and southbound lanes would serve as a vegetated buffer to filter runoff and minimize concentrated discharges. These vegetated medians would have to be maintained to satisfy water quality certification requirements. If replacing these vegetated medians with additional highway lanes is ever proposed, environmental clearances would be necessary and replacement of the water quality functions of the vegetated medians would be required. See also II Aplee. App. at 811 (FEIS, App.Q). This quote from the FEIS and the “Note” from the Evaluation Report indicate that there are methods of water quality control other than a large vegetated median. There is no evidence that the COE considered whether a substitute water quality control method was practicable in the context of a narrower median — the state water quality certification incorporating the large vegetated median was obtained after the § 404(b) permit was issued and appears to be a function of a four lane highway with a 65.6 foot median. See Aplt. Reply Br. at 9. As to the other reasons, the Officer justified the wider configuration by explaining why a package including several amenities would be desirable to various interests. The CWA test is not, however, whether features of a proposal would make a more desirable project. Rather the Applicant and the COE are obligated to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose. If such an alternative exists — like a highway configuration that is much narrower because it dispenses with the amenities — then the CWA compels that the alternative be considered and selected unless proven impracticable. UDOT’s stated purpose here was to meet the 2020 travel demand for the 1-15 North Corridor and the amenities are irrelevant to meeting that purpose. We, therefore, conclude that the COE failed to assess rationally whether a narrower median is practicable, thereby rendering the issuance of the permit arbitrary and capricious on this basis. 2. Trail In the § 404(b)(1) Evaluation, the Officer stated that the following issues were considered concerning the trail portion of the project when project features were analyzed to determine if a narrower ROW was practicable: (1) meetings were held with trail interests in which it was determined that there was a need for a trail system in the Legacy Parkway to continue the Jordan River trails; (2) the 1998 MIS stated that there was a need for a pathway system for pedestrians, bicycle-riders, and equestrians in the study area; (3) many people expressed the belief that a trail system was needed for use as an alternative means of transportation; (4) failure to include a trail in the project would be inconsistent with decisions made during and in response to the NEPA process; (5) failure to include the trail would eliminate a benefit that has been identified as needed in the context of public interest; and (6) failure to include the trail would be inconsistent with the local land use plans for the majority of cities in the study area. I Aplee. App. at 109. CWA does not permit the discharge of fill material if there is a «practicable alternative which would have a less adverse impact. 40 C.F.R. § 230.10(a). As discussed before, an alternative is practicable if it is “available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.” Id. § 230.10(a)(2). The project purpose of the Legacy Parkway has been repeatedly identified as meeting the 2020 transportation needs of the North Corridor. I Aplee. App. at 43-44 (COE’s ROD); I Aplee. App. at 261 (FEIS); IV Aplee. App. at 1401 (State Water Quality Certification). The Evaluating Officer identified one of the functions of the trails as providing an alternative means of transportation. The COE reasonably concluded that removing the trails was not practicable in light of the project’s overall purpose of meeting the transportation needs of the Northern Corridor in 2020, thus, the issuance of the permit is not arbitrary and capricious on this basis. 3. Berm and Utility Corridor Although the Evaluating Engineer wrote that the berm portion of the project was considered when a narrower ROW was analyzed for practicability, I Aplee. App. at 109, no reason is given in the COE’s ROD, § 404(b)(1) Evaluation Report or permit for why a ROW without a berm and utility corridor was not practicable. Reasons were only given for why a ROW without trails or a median was impracticable. Additionally, no explanation is given for why the ROW must be 330 feet for the entire 14 miles of the Legacy Parkway since the berm which is to be 33.1 feet is to run for only 3.2 miles. II ApltApp. at 625 (FEIS diagram showing ROW at 330 feet with and without presence of berm); IV Aplee. App. at 1323 (response to comment stating that berm will only run for 3.2 miles). The CWA does not permit the discharge of fill material if there is a practicable alternative which would have a less adverse impact. 40 C.F.R. § 230.10(a). “Practicable” is considered in light of the overall project purpose. Id. § 230.10(a)(2). As noted supra II.B.2, the project purpose of the Legacy Parkway has been repeatedly identified as meeting the 2020 transportation needs of the North Corridor. The Appellees have not cited to any place in the administrative record where providing a future utility corridor was included in the project purpose of the Legacy Parkway. Consequently, we consider the future utility corridor to be merely incidental to the Applicant’s basic purpose. See Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409-10 (9th Cir.1989); Shoreline Assoc. v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983). The failure of the COE to consider whether a ROW without a future utility corridor would be impracticable and the failure of the COE to provide any reasoning for why a ROW without a berm would be impracticable renders issuance of the permit arbitrary and capricious on this basis. C.“Mass Transit” Alternative We find that all sub-issues under Appellant’s Mass Transit Alternative issue are waived for failure to adequately brief as to violations of CWA. Phillips, 956 F.2d at 954. The Appellants argue only the inadequacies of the FEIS which is governed by NEPA. They make no mention of the COE’s ROD, § 404(b) Evaluation Report, or § 404(b) permit which are governed by CWA. They cite only to regulations pursuant to NEPA. The Appellants’ entire argument as to CWA on the mass transit alternative issue is that “[t]he District Court’s holding eviscerates the alternatives analysis required ... by the CWA,” Aplt. Br. at 39, and “[t]he omission of the assumptions and supportive information underlying the Federal Agencies’ transit analysis violates NEPA and the CWA.” Aplt. Br. at 38. We, therefore, deem this issue waived. D. Reducing Travel Demand and Alternative Land Use Scenario Alternative The Appellants allege that CWA was violated by COE’s failure to consider reducing travel demand through alternative land use scenarios alone and in combination with public transit as a practicable alternative. The regulations passed pursuant to CWA defines a practicable alternative as “available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.” 40 C.F.R. § 230.3(q). The COE found that an alternative land use scenario was not reasonable based on the fact that all of the record evidence demonstrates that the local governments in the study area are not implementing the type of coordinated planning and restrictive zoning that would be required to achieve the type of land use proposed by the Appellants. I Aplee. App. at 59. We find the COE’s conclusion to be reasonable and issuance of the permit was not arbitrary and capricious on this basis. See also I.D. E. Cumulative Effects of Six Lanes The Appellants assert that CWA was violated by the COE’s failure to consider the cumulative impact of a future expansion of Legacy from four lanes to six. Cumulative effects attributable to the filling of wetlands must be predicted to the extent reasonable and practicable. 40 C.F.R. § 230.11(g)(2). The permitting authority is to collect and solicit information about the cumulative impacts on the wetlands, and this information is to be documented and considered during the decision-making process concerning the evaluation of the permit application. Id. Cumulative impacts are identified as the changes in wetlands that are attributable to the collective effect of a number of individual discharges or fills of material. 40 C.F.R. § 230.11(g)(1). Although we are told that the definition of cumulative impacts given in the NEPA regulations are to be used uniformly throughout the federal government, 40 C.F.R. § 1508.1, the CWA regulations appear to define “cumulative impacts” in a different and more narrow way. Given our conclusion in Part I.C. that NEPA was not violated by the failure of the FEIS to consider the cumulative impact of a possible expansion of the Legacy to six lanes and the narrower definition for cumulative impact in the CWA regulations, we find that the decision to issue the permit was not arbitrary and capricious on this basis. F. Failure to Consider Land Use Impacts; Failure to Consider Impacts on Salt Lake City; Failure to Consider Groivth and Land Use Impacts on Areas North of the Legacy Parkway No mention is made of CWA in the portion of Appellants’ brief dedicated to these issues. Therefore, we deem the issues waived for failure to brief as to the alleged CWA violation. Phillips, 956 F.2d at 954. G. Failure to Consider Impacts to Wetlands A § 404(b) permit cannot be issued if the proposed discharge will result in significant degradation of the aquatic ecosystem or if there is insufficient information to make a reasonable judgment as to whether the discharge will result in significant degradation. 40 C.F.R. §§ 230.12(a)(3)(ii), (iv). Effects contributing to significant degradation include significant adverse effects of the discharge on wildlife, special aquatic sites, stages of aquatic life and other wildlife dependent on aquatic ecosystems, and aquatic ecosystem diversity, productivity, and stability. 40 C.F.R. § 230.10(c). The regulations pursuant to the CWA require the permitting authority to determine in writing the potential short-term or long-term effects of a proposed discharge on the physical, chemical, and biological components of the aquatic environment. 40 C.F.R. § 230.11. Such factual determinations are to be used in deciding whether a discharge will result in significant degradation and, therefore, the applicant cannot receive a permit. Impacts that should be considered in making the factual determinations and in making the finding of compliance or non-compliance include: major potential impacts on threatened or endangered species, 40 C.F.R. § 230.30(b); loss or change of breeding or nesting areas, escape cover, travel corridors, and preferred food sources for resident and transient wildlife species associated with the aquatic ecosystem, 40 C.F.R. § 230.32(b); impacts to sanctuaries and refuges which disrupt breeding, spawning, migratory movements or other critical life requirements of resident or transient fish and wildlife resources, 40 C.F.R. § 230.40(b)(1); impacts to wetlands that are likely to damage or destroy habitat and adversely affect the biological productivity of the wetlands’ ecosystem, 40 C.F.R. § 230.41(3)(b). The Appellants contend that the COE violated CWA by its “unbelievably cursory” analysis of impacts to wetlands. Aplt. Br. at 73 (citing to III Aplt.App. at 1204-OS (§ 404(b)(1) Evaluation Report)). The Appellants have ignored the COE’s analysis in its ROD and its Permit which were released on the same day as the § 404(b)(1) Evaluation Report. I Aplee. App. at 38, 124. Even assuming without deciding that the wetlands analysis in the § 404(b)(1) Evaluation Report is cursory, the wetlands analysis of all three documents is adequate to support the COE decision. Appellants also assert that CWA was violated by the Agencies’: (1) failure to classify wetlands into subcategories as required by HGM protocols; (2) failure to take actual field data for developing the functional profile; (3) assuming that land use changes within 1000 feet predicted the wetlands’ level of functionality; and (4) use of the Everglades HGM Regional Guidebook. For substantially the same reasons given in Parts I.I.1.-I.I.4, we find that the COE did not act arbitrarily and capriciously in issuing the permit on this basis. H. Failure to Consider Impacts to Wildlife The Appellants note that the COE’s wildlife impact analysis, like the FEIS, was limited to consideration of impacts within 1000 feet of the project despite the CWA regulation’s requirement that written factual findings be made on the potential short-term or long-term effects of the proposed discharge on threatened and endangered species, nesting areas, escape cover, travel corridors, and preferred food sources for resident and transient wildlife species associated with the aquatic ecosystem, and sanctuaries and refuges. For substantially the same reasons give in I.J., and also because practicable alternatives cannot be ignored because of mitigation potential, Fund for Animals, 85 F.3d at 544, we hold that the COE acted arbitrarily and capriciously in granting the permit on this basis. I. Air Quality Impacts No mention is made of CWA in the portion of Appellants’ brief dedicated to this issue. Therefore, we deem this issue waived for failure to brief as to the alleged CWA violation. Phillips, 956 F.2d at 954. Conclusion We affirm in part and reverse and remand in part. We find that the FEIS was inadequate on the following grounds: elimination of the D & RG as an alternative based upon inadequate cost estimates, supra I.A., failure to consider alternative sequencing of the Shared Solution, supra I.C.6, failure to consider integration of the Legacy Parkway and transit, supra I.C.7., and failure to consider impacts to wildlife, supra I.J. We conclude that the COE’s issuing of the § 404(b) permit was arbitrary and capricious on the following grounds: issuing a permit with insufficient information to determine whether the D & RG Regional Alignment was a practicable alternative, infra II.A, failure to consider whether a narrower median was a practicable alternative, infra II.B.l, failure to consider whether a ROW without a future utility corridor or berm was a practicable alternative, infra II. B.3, and failure to consider the impacts to wildlife, infra II.H. On remand, our injunction shall remain but the bond shall be exonerated. Appendix Agencies: FHWA and COE APA: Administrative Procedure Act Applicant: UDOT in this case A-team: assessment team, team of experts formed to conduct HGM BWR: A contractor hired by UDOT CEQ: Council on Environmental Quality CWA: Clean Water Act COE: U.S. Army Corps of Engineers D & RG: Denver & Rio Grande DEIS: Draft Environmental Impact Statement DWR: Utah Department of Wildlife Reserve EIS: Environmental Impact Statement EPA: Environmental Protection Agency FEIS: Final Environmental Impact Statement FHWA: Federal Highway Administration FTA: Federal Transit Authority FWS: Fish and Wildlife Service GSL: Great Salt Lake HEP: Habitat Evaluation Procedure HGM: Hydrogeomorphic methodology HDR: a contractor hired by UDOT HOV: High Occupancy Vehicle MIS: Major Investment Study NAP: National Action Plan NEPA: National Environmental Protection Act ROD: Record of Decision ROW: Right of Way TDM: Travel Demand Management TOD: Transit Oriented Development TSM: Transportation System Management UDOT: Utah Department of Transportation UBT: Utahns for Better Transportation UTA: Utah Transit Authority VMT: Vehicle Miles Traveled SLC: Salt Lake City WHSRN: Western Hemisphere Shorebird Reserve Network WFRC: Wasatch Front Region Council WTC: Western Transportation Corridor . As Judge Cudahy noted, “policymakers and courts have cooked up enough acronyms under NEPA for a feast of officialese.'' Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 666 (7th Cir. 1997). To assist the reader, the court has provided an appendix of the acronyms and shorthand names used in this opinion and in the briefs. See also Aplee. App. at 176-83 (FEIS Acronyms and Abbreviations list). In the future, the court would appreciate it if counsel would do likewise. . The Council on Environmental Quality ("CEQ”) was given authority to issue regulations implementing the procedural provisions of NEPA that would be binding on all Federal agencies by Executive Order No. 11991 (May 24, 1977). . The D & RG Regional Alignment was one of two alternatives for the Railroad Alignment which was one of five regional alignments discussed in the FEIS. I Aplee. App. at 289 ("There five regional alignments are: ...» Railroad (either the Denver and Rio Grande Railroad [¶] & RGRR] or the Union Pacific Railroad [UPPR]).”). . We discuss the DR & G Regional Alignment and the CWA in II.A and conclude that its elimination did not comport with the CWA on this record. . This court considers it unlikely, based on the record before us, that a cost estimate for the D & RG Regional Alignment assuming a 100 meter right of way would be appropriate. The FEIS indicates that the cost estimates assumed a 100 meter right of way for all of the alternative regional alignments. I Aplee. App. at 290. As discussed infra at I.B and II.B, the Legacy Parkway's 100 meter right of way includes 13.1 feet for trails, 25.9 feet for a future utility corridor, 33.1 feet for berm, and 65.6 feet for the median. However, the inclusion of the trails within the Legacy right of way was intended to continue the Jordan River trails. I Aplee. App. at 109. The future utility corridor was desirable because of its proximity to existing and future water treatment facilities. I Aplee. App. at 362. Likewise, the width of the vegetated median was described as necessary for water quality, in the absence of a substitute water quality control facility, to reduce the amount of pollutants flowing into the wetlands adjacent to the Legacy Parkway, and to make the construction of unsightly concrete barriers that would have affected the scenic quality of the GSL unnecessary. I Aplee. App. at 110. Given that the reasons for the trails, future utility corridor, and the extra wide median are not relevant to the other alternative alignments, it appears that the cost estimates should have been based on the width of the right of way , necessary at that location. . We do not imply that an extraordinarily detailed cost estimate is necessary; however, given the importance of the relative costs to the alternative analyses in the EIS, more than nothing was required. . Using the numbers provided by the Appellants, the ROW would total 406.6 feet. This total is clearly higher than the 100 meter (328.1 feet) ROW approved by the COE. I Aplee. App. at 43 (COE's ROD), 112 (§ 404(b)(1) Evaluation Report), 130 (diagram in COE's Permit). . The Appellees only refer to the author of the "Comments" document as “FHWA commentator.” Aplee. Br. at 24 n. 8. . The Appellants would have this court order the Agencies to complete a habitat evaluation procedure ("HEP”) analysis as recommended by DWR and FWS. Aplt. Br. at 71; II Aplt. App. at 809(DWR); I Aplt.App. at 222-24 (DWR and FWS). In response, Appellees cite to an undated, unsigned document entitled "Comments on DWR review of the EIS for Legacy Highway” which states in relevant part: Additional documentation was provided in the QC for Legacy. Larry Dalton told us early in the process of developing the model that HEP would not be required. We could go on and on about the inadequacies of HEP. IV Aplee.App. at 1558. This document is of little help to the court. However, it is within the Agencies’ discretion to select a method of wildlife impact analysis so long as it is not arbitrary and capricious. Therefore, we decline to restrict that discretion by mandating an HEP analysis. . 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 ...— (D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if: (i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement. The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction. 42 U.S.C. § 4332. . 40 C.F.R. § 1506.2(b) and (c) directs federal agencies to cooperate with state and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable state and local requirements. The only relevant state requirement in this case is apparently the water quality certification. Therefore, § 1506.2 does not allow the COE or the FHWA to rely on UDOT’s FEIS. . 40 C.F.R. § 1506.3 allows a federal agency to adopt another federal agency’s FEIS provided that the FEIS meets NEPA standards. The question of whether an agency outside of 42 U.S.C. § 4332 is entitled by 40 C.F.R. § 1506.3 to adopt a FEIS prepared for a funding agency by the state agency applicant is beyond the facts of this case. Although the FHWA is often a funding agency for the purposes of 42 U.S.C. § 4332, it is not in this case because the Legacy Parkway is a state-funded project. . As the record stands before this court, we are unable to tell how wide the ROW would need to be in the D & RG location, how many buildings would have to be taken, how many, if any, refineries would have to be relocated, how extensive the impact would be on existing utilities, or if any mitigation would be necessary.

Borden Ranch Partnership v. United States Army Corps of Engineers

MICHAEL DALY HAWKINS, Circuit Judge: This appeal concerns the authority of the U.S. Army Corps of Engineers (“the Corps”) and the Environmental Protection Agency (“EPA”) over a form of agricultural activity called “deep ripping” when it occurs in wetlands. We conclude that the Clean Water Act applies to this activity and affirm the district court’s findings that Borden Ranch violated the Act by deep ripping in protected wetland swales. We reverse the district court’s findings of liability with respect to isolated vernal pools in light of Solid Waste Agency of N. Cook County v. United States Amy Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), and remand for a recalculation of the civil penalties. Facts and Procedural Background In June of 1993, Angelo Tsakopoulos, a Sacramento real estate developer, purchased Borden Ranch, an 8400 acre ranch located in California’s Central Valley. Pri- or to Tsakopoulos’s purchase, the relevant areas of the ranch had been used primarily as rangeland for cattle grazing. The ranch contains significant hydrological features including vernal pools, swales, and intermittent drainages. Vernal pools are pools that form during the rainy season, but are often dry in the summer. Swales are sloped wetlands that allow for the movement of aquatic plant and animal life, and that filter water flows and minimize erosion. Intermittent drainages are streams that transport water during and after rains. All of these hydrological features depend upon a dense layer of soil, called a “restrictive layer” or “clay pan,” which prevents surface water from penetrating deeply into the soil. Tsakopoulos intended to convert the ranch into vineyards and orchards and subdivide it into smaller parcels for sale. Vineyards and orchards, however, require deep root systems, much deeper than the restrictive layer in the relevant portions of Borden Ranch permitted. For vineyards and orchards to grow on this land, the restrictive layer of soil would first need to be penetrated. This requires a procedure known as “deep ripping,” in which four- to seven-foot long metal prongs are dragged through the soil behind a tractor or a bulldozer. The ripper gouges through the restrictive layer, disgorging soil that is then dragged behind the ripper. Under the Clean Water Act, an individual seeking to fill protected wetlands must first obtain a permit from the Corps. Since 1993, Tsakopoulos and the Corps have disagreed about the Corps’ authority to regulate deep ripping in wetlands. Tsakopoulos initiated deep ripping without a permit in the fall of 1993, and the Corps granted him a retrospective permit in the spring of 1994, when Tsakopoulos agreed to various mitigation requirements. In the fall of 1994, the Corps and the EPA informed Tsakopoulos that he could deep rip in uplands and that he could drive over swales with the deep ripper in its uppermost position, but that he could not conduct any deep ripping activity in vernal pools. The next spring, the Corps discovered that deep ripping had occurred in protected wetlands and promptly issued a cease and desist order. From July 1995 through November 1995, Tsakopoulos again initiated deep ripping on various parcels of land without a permit. The Corps concluded that more protected wetlands had been ripped and again issued a cease and desist order. In May of 1996, the Corps and the EPA entered into an Administrative Order on Consent with Tsakopoulos that was intended to resolve his alleged Clean Water Act violations. Under the agreement, Tsako-poulos set aside a 1368-acre preserve and agreed to refrain from further violations. In December of 1996, the Corps and the EPA issued a regulatory guidance letter that distinguished deep ripping from normal plowing activity. The letter stated that deep-ripping in wetlands “destroy[s] the hydrological integrity of these wetlands” and therefore “requires a permit under the Clean Water Act.” In March of 1997 the Corps concluded that Tsakopoulos had continued to deep rip wetlands without permission. That April, EPA investigators visited the ranch and observed fully engaged deep rippers passing over jurisdictional wetlands. EPA then issued an Administrative Order to Tsakopoulos. Tsakopoulos responded by filing this lawsuit, challenging the authority of the Corps and the EPA to regulate deep ripping. The United States filed a counterclaim seeking injunctive relief and civil penalties for Tsakopoulos’s alleged violations of the Clean Water Act. Both parties filed motions for summary judgment. The district court ruled that the Corps has jurisdiction over deep ripping in jurisdictional waters. However, the court found disputed facts with respect to whether such deep ripping had actually occurred. These facts were litigated in a bench trial that began on August 24, 1999, and concluded on September 16, 1999. The district court heard evidence from over twenty witnesses and received hundreds of documentary exhibits. The district court subsequently entered findings of fact and conclusions of law determining that Tsakopoulos had repeatedly violated the Clean Water Act. The court found 348 separate deep ripping violations in 29 drainages, and 10 violations in a single vernal pool. The district court gave Tsakopoulos the option of paying a $1.5 million penalty or paying $500,000 and restoring four acres of wetlands. Tsako-poulos chose the latter option. After denying a motion for more specific findings of fact, the district court entered its final order in favor of the United States. Tsakopoulos then brought this timely appeal. We have jurisdiction under 28 U.S.C. § 1291. Analysis I. Corps Jurisdiction over Deep Ripping The Clean Water Act prohibits “the discharge of any pollutant” into the nation’s waters. 33 U.S.C. § 1311(a). The nation’s waters have been interpreted to include wetlands adjacent to navigable waters. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133-35, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Act defines discharge as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). A point source is “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). A pollutant is defined, inter alia, as “dredged spoil, ... biological materials, ... rock, sand, [and] cellar dirt.” 33 U.S.C. 1362(6). It is unlawful to discharge pollutants into wetlands without a permit from the Army Corps of Engineers. 33 U.S.C. § 1344(a),(d). A. Discharge of a Pollutant Tsakopoulos initially contends that deep ripping cannot constitute the “addition” of a “pollutant” into wetlands, because it simply churns up soil that is already there, placing it back basically where it came from. This argument is inconsistent with Ninth Circuit precedent and with case law from other circuits that squarely hold that redeposits of materials can constitute an “addition of a pollutant” under the Clean Water Act. Rybachek v. United States Envtl. Prot. Agency, 904 F.2d 1276 (9th Cir.1990), considered a claim that placer mining activities were exempt from the Act. We held that removing material from a stream bed, sifting out the gold, and returning the material to the stream bed was an “addition” of a “pollutant.” Id. at 1285. The term “pollutant” encompassed “the materials segregated from gold in placer mining.” Id. Our reasoning in Rybachek is similar to that of the Fourth Circuit in United States v. Deaton, 209 F.3d 331 (4th Cir.2000). In Deaton, a property owner alleged that the Corps could not regulate “sidecasting,” which is “the deposit of dredged or excavated material from a wetland back into that same wetland.” Id. at 334. The property owner asserted that “sidecasting results in no net increase in the amount of material present in the wetland” and therefore could not constitute the “addition of a pollutant.” Id. at 335. The Fourth Circuit squarely rejected this argument, in language that is worth quoting in full: Contrary to what the Deatons suggest, the statute does not prohibit the addition of material; it prohibits the “addition of any pollutant.” The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here.... Once [earth and vegetable matter] was removed [from the wetland], that material became “dredged spoil,” a statutory pollutant and a type of material that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before. Id. at 335-36. As the court concluded, “Congress determined that plain dirt, once excavated from waters of the United States, could not be redeposited into those waters without causing harm to the environment.” Id. at 336; see also Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir.1983) (holding that the word “addition” may be reasonably understood to include “redeposit”). These cases recognize that activities that destroy the ecology of a wetland are not immune from the Clean Water Act merely because they do not involve the introduction of material brought in from somewhere else. In this case, the Corps alleges that Tsakopoulos has essentially poked a hole in the bottom of protected wetlands. That is, by ripping up the bottom layer of soil, the water that was trapped can now drain out. While it is true, that in so doing, no new material has been “added,” a “pollutant” has certainly been “added.” Prior to the deep ripping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else. We can see no meaningful distinction between this activity and the activities at issue in Rybachek and Deaton. We therefore conclude that deep ripping, when undertaken in the context at issue here, can constitute a discharge of a pollutant under the Clean Water Act. Tsakopoulos also contends that no case has ever held a plow to be a point source, and that a prohibited discharge must be from a point source. This argument has no merit. The statutory definition of “point source” (“any discernible, confined, and discrete conveyance”) is extremely broad, 33 U.S.C. § 1362(14), and courts have found that “bulldozers and backhoes” can constitute “point sources,” Avoyelles, 715 F.2d at 922. In this case, bulldozers and tractors were used to pull large metal prongs through the soil. We can think of no reason why this combination would not satisfy the definition of a “point source.” B. The Normal Farming Exception Tsakopoulos next contends, that even if deep ripping constitutes a discharge of pollutants,. it is nonetheless exempt from regulation under the “farming exceptions,” which state that discharges “from normal farming ... and ranching activities, such as plowing” are not subject to the Clean Water Act. 33 U.S.C. § 1344(f)(1)(A). The section of the statute containing the farming exceptions, however, includes a significant qualifying provision: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be. required to have a permit under this section. 33 U.S.C. § 1344(f)(2). Thus, even normal plowing can be regulated under the Clean Water Act if it falls under this so-called “recapture” provision. See Avoyelles, 715 F.2d at 925 (noting that § 1344(f)(2) can preclude the normal farming exceptions). We conclude that the deep ripping at issue in this case is governed by the recapture provision. Converting ranch land to orchards and vineyards is clearly bringing the land “into a use to which it was not previously subject,” and there is a clear basis in this record to conclude that the destruction of the soil layer at issue here constitutés an impairment of the flow of nearby navigable waters. Although the Corps cannot regulate a farmer who desires “merely to change from one wetland crop to another,” activities that require “substantial hydrological alterations” require a permit. United States v. Akers, 785 F.2d 814, 820 (9th Cir.1986). As we have explained, “the intent of Congress in enacting the Act was to prevent conversion of wetlands to dry-lands,” and we have classified “as nonexempt those activities which change a wetland’s hydrological regime.” Akers, 785 F.2d at 822. In this case, Tsakopou-los’s activities were not intended simply to substitute one wetland crop for another; rather they radically altered the hydrological regime of the protected wetlands. Accordingly, it was entirely proper for the Corps and the EPA to exercise jurisdiction over Tsakopoulos’s activities. II. The Vernal Pool The district court found Clean Water Act violations in one isolated vernal pool on Tsakopoulos’s property. Earlier this year, the Supreme Court ruled in Solid Waste that the Corps’ rule extending the definition of “navigable waters” under the Clean Water Act to include intrastate waters used as habitat for migratory birds exceeds the authority granted to the Corps under the Clean Water Act. The government now concedes that Solid Waste precludes Corps’ authority over the vernal pool in dispute and has formally withdrawn its enforcement claim with respect to the pool. We accordingly reverse the district court’s findings of Clean Water Act violations in the vernal pool. III. The District Court’s Factual Findings Tsakopoulos challenges the district court’s factual findings of violations of the Clean Water Act. We review for clear error. Ambassador Hotel Co. v. WeiChuan Inv., 189 F.3d 1017, 1024 (9th Cir.1999). Tsakopoulos argues that “there was no substantial evidence at all” to support the court’s factual findings of deep ripping in protected swales. He argues that the evidence can only demonstrate shallow ripping consistent with the ripper in its uppermost position, which was permitted under the government’s direction. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Cree v. Flores, 157 F.3d 762, 768 (9th Cir.1998). The district court here held a four-week bench trial, examined numerous exhibits, and heard over twenty witnesses. There is ample evidence to support the district court’s findings. The court cited documentary evidence showing deep ripping, eyewitness testimony of deep ripping on the property, and Tsakopoulos’s own concession that “mistakes had been made.” The court also relied on the studies of Dr. Lyndon Lee, who conducted extensive investigations at the site. Dr. Lee was able to dig soil pits as far as thirty inches into the soil. By examining the composition of the soil in these pits, Dr. Lee could determine whether the underlying clay layer had been ripped up, consistent with deep ripping. The district court chose to credit this evidence that deep ripping had occurred, and we can find no clear error on this record. IV.The Civil Penalty The district court found that Tsakopou-los had committed 358 violations of the Clean Water Act. It counted each pass of the ripper through a protected wetland as a separate violation. The statute provides for a maximum penalty of “$25,000 per day for each violation.” 33 U.S.C. § 1319. The statutory maximum penalty was therefore $8,950,000. The court then considered a variety of factors in setting the penalty. The court found that Tsakopou-los “risked damaging rare federal wetlands because of his motivation to reap economic gain.” The court also found an “absence of a good faith attempt to comply with the Act.” The court accordingly set the penalty at $1,500,000, which is $7,450,000 below the statutory maximum. The court also allowed Tsakopoulos to suspend $1,000,000 of the penalty if he performed various restoration measures. Tsakopoulos now makes three challenges to the district court’s calculation of the civil penalty. We conclude that none of these arguments has merit. A. Penalty Calculation per Violation Tsakopoulos first contends that the penalty should have been based on the number of days in which illegal ripping occurred, not on the number of individual passes with the ripper. He argues that the statutory language “per day for each violation” means that he can only be assessed $25,000 for any day in which ripping violations occurred, regardless of the total number of rippings in that day. We disagree. The statute imposes a maximum penalty “per day for each violation.” 33 U.S.C. § 1319(d). It does not say “per each day in which violations occur” or “per day in which a party pollutes.” The focus is clearly on each violation, and courts have consistently rejected attempts to limit civil penalties to the number of days in which violations occur. A contrary rule would encourage individuals to stack all their violations into one “Pollution Day,” in which innumerable offenses could occur, subject only to the $25,000 maximum. Tsakopoulos relies most heavily on Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.1986), vacated, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwattney, the court considered a case of continuous violations of monthly permits. The violator argued that a monthly violation should be treated as a single day of violation. Id. at 313. The court disagreed, concluding “where a violation is defined in terms of a time period longer than a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period.” Id. at 314. The court explicitly declined to reach the very different question of “whether multiple violations attributable to a single day may give rise to a maximum penalty in excess of [the penalty amount] for that day.” Id. at 308. This question was addressed in Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir.1990). The court found that the statutory provision was “not a model of clarity,” but nonetheless found that it was “capable of only a single reasonable interpretation: the daily maximum penalty applies separately to each violation of an express limitation.” Id. at 1137, 1138. The court stated that “each excessive discharge of a pollutant on a given day will subject the polluter to a $25,000 maximum fine.” Id. at 1139. This interpretation was consistent with the legislative history, which stated that the provision was intended “to clarify that each distinct violation is subject to a separate daily penalty assessment.” Id. (citation omitted). The Fourth Circuit adopted similar reasoning in United States v. Smithfield Foods, Inc., 191 F.3d 516, 528 (4th Cir.1999). The court noted the serious incentive problems of a contrary ruling: “[I]f the maximum penalty that could be levied against a violator on a single day was $25,000, no matter how many different Permit effluent limitations were violated, the permittee would have a strong disincentive to comply with the other permit limitations.” Id. at 527-28. Accordingly, the court treated each permit violation “as a separate and distinct infraction for purposes of penalty calculation.” Id. at 528. We recognize that these cases do not precisely resolve the problem at issue here. These cases are concerned with emission of different types of pollutants in violation of different permits. This case is about repeated filling of wetlands without a permit. Here, the landowner committed the same unlawful act repeatedly. Tsako-poulos argues that treating each rip as a separate violation could lead to nonsensical results in other cases. For example, a polluter who emitted 25,000 gallons of a pollutant into a stream continuously over the course of a day would be subject to a $25,000 maximum penalty, whereas a polluter who made three separate discharges of one gallon each would be subject to a $75,000 maximum penalty. Tsakopoulos’s position, however, also leads to irrational results. The incentive problems at issue in Smithfield are equally strong here. Once a wetland violation has occurred in part of a swale, Tsakopoulos’s proposed rule would allow the landowner to rip away at the rest of the swale with impunity from that point forward, because no additional penalty could be imposed. Although neither approach is free from difficulty, we believe the better rule is to treat each rip as a separate violation. This approach is more consistent with the statutory language, with prior judicial interpretations of the statute, and with the general policy goal of discouraging pollution. Tsakopoulos’s concern about the disparate treatment of the polluter who emits several small amounts and the serial continuous polluter is not without remedy in the district courts. The district courts have substantial discretion in imposing penalties, and, as the Gwaltney court pointed out in response to a similar argument, the district court “could ... impose a substantially smaller penalty on [the] hypothetical polluter than on [the larger polluter].” 791 F.2d at 315. In sum, we conclude that the district court correctly included each pass of the ripper as a separate violation. A limited remand for recalculation of the penalty is nonetheless in order. The district court included 10 passes through the vernal pool in its total of 358 violations. Since the government now concedes that it lacks jurisdiction over these violations, we remand to the district court to determine what, if any, reduction in the penalty is appropriate. B. The Simpson Timber Consent Decree Tsakopoulos argues that the penalty imposed here is significantly disproportionate to the penalty imposed in the settlement of violations by the Simpson Timber Company, which deep ripped 987 acres, but was subject only to a $30,000 penalty and a restoration order. By contrast, Tsakopoulos committed violations on only two acres. The district court found that the Simpson Timber consent decree had no relevance to the determination of the civil penalty here, because consent decrees are different from judgments reached after extensive litigation and because that decree imposed significant restoration requirements. The district court did not abuse its discretion. Tsakopoulos knowingly assumed the risk that litigation would result in a judgment more unfavorable than he might have attained through settlement. Having assumed that risk, Tsakopoulos cannot now be heard to complain that his penalty should have been assessed as if he had settled the case. In any event, the statute directs that these disputes be evaluated on a case-by-case basis. Since we know almost nothing about the facts of the Simpson Timber dispute, it is impossible to conclude that the district court’s careful analysis of the penalty issue on the facts of this case was an abuse of discretion. C. Further Reductions in Penalty Tsakopoulos finally argues that the district court should have reduced the penalty further because of Tsakopoulos’s good faith, the trivial nature of the violations, and the supposed uncertainty concerning the government’s regulatory authority. The district court considered these arguments when setting the penalty (a penalty that was significantly lower than the statutory maximum). None of Tsakopoulos’s arguments rises to the level necessary to demonstrate an abuse of discretion by the district court. Conclusion We affirm the district court’s holding that deep ripping in this context is subject to the jurisdiction of the Corps and the EPA. We also affirm the district court’s factual findings except with respect to the vernal pools. We remand for a recalculation of the civil penalties. Finally, we deny Tsakopoulos’s request that this case be assigned to a different district judge on remand. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED. Costs on appeal to appel-lees. . In the district court, Tsakopoulos argued that this letter was invalid. The district court found that "it is unclear whether the regulatory guidance letter has actually been applied to Plaintiffs. Therefore decision is reached without reference to it.” The district court also found that "any as-applied challenge to the regulations that might also include a challenge to the application of the [regulatory guidance letter] is not ripe.” On appeal, Tsakopoulos again challenges the regulatory guidance letter, arguing for the first time that the letter is a substantive rule that required notice-and-comment rule making. Since this new argument was not presented to the. district court, we decline to consider it on appeal. See Nelson v. City of Irvine, 143 F.3d 1196, 1205-06 (9th Cir.1998). . National Mining Assoc. v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C.Cir.1998), upon which Tsakopoulos heavily relies, does not persuade us to the contrary. That case distinguished "regulable redeposits” from "incidental fallback.” Id. at 1405. Here, the deep ripping does not involve mere incidental fallback, but constitutes environmental damage sufficient to constitute a regulable redeposit.

Borden Ranch Partnership v. United States Army Corps of Engineers

RONALD M. GOULD, Circuit Judge, dissenting: I respectfully dissent. The crux of this case is that a farmer has plowed deeply to improve his farm property to permit farming of fruit crops that require deep root systems, and are more profitable than grazing or other prior farm use. Farmers have been altering and transforming their crop land from the beginning of our nation, and indeed in colonial times. Although I have no doubt that Congress could have reached and regulated the farming activity challenged, that does not in itself show that Congress so exercised its power. I conclude that the Clean Water Act does not prohibit “deep ripping” in this setting. I would follow and extend National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C.Cir.1998), and hold that the return of soil in place after deep plowing is not a “discharge of a pollutant.” In National Mining, the court held that the Corps exceeded its authority under section 404 of the Clean Water Act by regulating the redeposit of dredged materials that incidentally fall back in the course of dredging operations. The court explained that “the straightforward statutory term ‘addition’ cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back.” Id. at 1404. The court rejected the agencies’ primary argument that incidental fallback constitutes an “addition” because once dredged the material becomes a pollutant: Regardless of any legal metamorphosis that may occur at the moment of dredging, we fail to see how there can be an addition of dredged material when there is no addition of material. Although the Act includes “dredged spoil” in its list of pollutants, Congress could not have contemplated that the attempted removal of 100 tons of that substance could constitute an addition simply because only 99 tons of it were actually taken away. Id. at 1404 (emphasis omitted). Those considerations are persuasive here as deep ripping does not involve any significant removal or “addition” of material to the site. The ground is plowed and transformed. It is true that the hydrological regime is modified, but Congress spoke in terms of discharge or addition of pollutants, not in terms of change of the hydrological nature of the soil. If Congress intends to prohibit so natural a farm activity as plowing, and even the deep plowing that occurred here, Congress can and should be explicit. Although we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, it is an undue stretch for us, absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity. Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir.1990), in my view, is distinguishable. In Rybachek, we held that placer mining, “a process in which miners excavate dirt and gravel in and around waterways and, after extracting the gold, discharge the leftover material back into the water,” fell within the scope of section 404 of the Clean Water Act. Id. at 1285. There, the Rybachek court identified the regulable discharge as the discrete act of dumping leftover material into the stream after it had been processed. Id. As the concurrence in National Mining makes clear, however, “the word addition carries both a temporal and geographic ambiguity. If the material that would otherwise fall back were moved some distance away and then dropped, it very well might constitute an ‘addition.’ Or if it were held for some time and then dropped back in the same spot, it might also constitute an ‘addition.’ ” National Mining, 145 F.3d at 1410 (Silberman, J., concurring). Because deep ripping does not move any material to a substantially different geographic location and does not process such material for any period of time, Rybachek is not controlling. Nor is the Fourth Circuit’s opinion in United States v. Deaton, 209 F.3d 331 (4th Cir.2000), relied on by the majority, persuasive to me in the context presented. A farmer who plows deeply is not, in my view, redepositing dredged or excavated materials. While the Fourth Circuit relied on the fact that a “dredged spoil” is a statutory pollutant, the deep plowing activity here, in my view, is not the same as dredging dirt from and redepositing it in waters. Also, even assuming that deep ripping can be viewed as a discharge of a pollutant into navigable waters, it seems at first consideration exempt as a normal farming activity. The Clean Water Act exempts normal farming activity, including plowing. See 33 U.S.C. § 1344(f)(1)(A). The exemption as cast by Congress is not limited to shallow plowing, but would appear literally to cover the deep plowing technique referred to as deep ripping. This exemption, however, does not apply by its terms to “any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject.” See 33 U.S.C. § 1344(f)(2). Moreover, the Corps of Engineers, by regulation, has provided explicitly that the plowing exemption does not include “redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dry land.” 33 C.F.R. § 323.4(a)(l)(iii)(D). The Corp’s regulation, which we upheld in United States v. Akers, 785 F.2d 814, 819-20 (9th Cir.1986), must be read consistent with the statute’s terms. Although this limitation defeats the exemption for any deep ripping that had the purpose of transforming land, it does not, in my view, defeat the exemption as to any unintended impairment. Most violations found by the district court involved a purposeful attempt to transform the land. But some of the transgressions (indentations in swales caused by moving the deep ripper to different locations) found by the district court here were apparently unintentional, or at least there was no finding by the district court of purposeful modification as to all of the violations. I would hold that the district court erred in finding that the activities here required a permit and otherwise violated the Clean Water Act. The problem of interpretation here arises because Congress prohibited the discharge or addition of any pollutant to navigable waters from any point source. It did not literally prohibit any conduct by farmers or ranchers that changes the hydrological character of their land. The majority opinion, motivated perhaps by the purposes of the statute, makes new law by concluding that a plow is a point source and that deep ripping includes discharge of pollutants into protected waters. The policy decision involved here should be madé by Congress, which has the ability to study and the power to make such fine distinctions. I understand how the majority reaches its position based on Rybachek, and incremental judicial reasoning. Notwithstanding, the judicial determination that a deep plowing technique constitutes a pollution of navigable waters, with no prior adequate guidance from Congress, goes beyond mere statutory interpretation. It would be preferable for the public, the regulators, and us were Congress to speak explicitly on the subjects of what normal farming or ranching activities may include discharge of pollutants and require permits under the Clean Water Act, and whether it wishes to exempt any such activities and upon what terms. The alternatives are an agency power too unbounded or judicial law-making, which is worse. I respectfully dissent. . Appellant, Angelo Tsakopoulos, is referred to by the majority as a “real estate developer.” As the owner of Borden Ranch, which apparently engaged in both farming and ranching activities, it seems to me correct to refer to him as a farmer or a rancher, in addition to being a developer. Whether viewed as a farmer, rancher, or developer, his rights as a citizen are the same. Because the challenged activities in this case arise on land previously used for rangeland for cattle grazing, and his deep ripping was converting the land for orchard and vineyard farming, I consider him as a farmer and rancher, and the issues raised by his position in this litigation may impact farmers and ranchers regardless of whether they plan to sell portions of improved land.

City of Carmel-by-the-Sea v. United States Department of Transportation

BEEZER, Circuit Judge: ORDER The Opinion filed September 13, 1996, is withdrawn. OPINION This appeal arises from the proposed realignment of California State Highway 1 from the City of Carmel-by-the-Sea to nearby Hatton Canyon. The responsible governmental agencies studied this proposal and others and issued an Environmental Impact Statement/Report as required by state and federal law. Plaintiffs City of Carmel-by-the-Sea, Monterey Peninsula Regional Park District, Hatton Canyon Coalition and Sierra Club challenged the adequacy of this statement/report under the National Environmental Policy Act, California Environmental Quality Act and Executive Orders 11988 and 11990. The district court granted summary judgment in favor of the defendants. Plaintiffs filed this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part and remand. I California State Highway 1 (Highway 1) extends from San Clemente in Orange County to Rockport in Mendocino County, California. Over an approximately three-mile stretch through the City of Carmel-by-the-Sea (City of Carmel), motorists traveling on Highway 1 confront severe congestion at peak hours. Highway 1 begins as a four-lane divided highway at the northern end of this section, near the Highway 68 interchange. As Highway 1 passes through the City of Carmel it funnels into a two-lane undivided highway, south of Ocean Avenue. Over the next several miles Highway 1 is controlled, and congested, by three traffic lights and numerous flanking intersections and driveways. The lack of sufficient left-turning lanes adds to the traffic problem. California transportation officials list this stretch of Highway 1 as: “one of the most heavily traveled two-lane highways in the State.” 7 SAR 2083. This section of Highway 1 is also dangerous: the rate of traffic accidents in this two-lane section of Highway 1 exceeds the state average. 24 SAR 7652. In 1990, traffic reached an average of 40,000 cars per day and an average of 60,000 cars per day at one location on this stretch. 24 SAR 7650. This volume increases during weekends and the summer months. 24 SAR 7651. Highway l’s traffic problems date back to the late 1940’s. No one today disputes the need for improvements; rather, disagreement centers on how best to achieve those improvements. Variations on two alternative proposals have dominated the list of solutions for forty years: (1) widen Highway 1 or (2) build a new route. The primary location identified for a new route was, and remains, Hatton Canyon, a pristine “wilderness” area east of the City of Carmel. Disagreement over these alternatives has resulted, unwittingly, in the exercise of a third option: no action. The Highway 1 debate has been both public and passionate. The 10,000-page administrative record is replete with evidence of the detailed and emotional attention this issue has received. Further complicating the process, several localities, agencies and environmental groups involved have reversed their positions on the issue over time. Many who once supported the Hatton Canyon proposal now vigorously oppose it. They argue that the proposal will destroy Hatton Canyon’s unique ecosystem while only saving motorists a few minutes of driving time at peak hours. Not surprisingly proponents of the Hatton Canyon proposal dismiss this as hyperbole, and note instead that the Hatton Canyon project will ameliorate traffic congestion, accident rates and air quality, while maintaining the rural and scenic character of Highway 1. In 1984, the California Department of Transportation (Caltrans) and the Federal Highway Administration began serving jointly as the “lead agencies” on the project. In 1986 they published a combined Draft Environmental Impact Statement/ Environmental Impact Report as required by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the California Environmental Quality Act, Cal.Pub.Res.Code § 21000 et seq. The Draft Environmental Impact Statement/Report’s stated purpose was to: “improve the capacity of Highway 1 and reduce crossing and turning conflicts associated with several local streets and private driveways.” 11 SAR 3121. Several alternatives — primarily variations on the Hatton Canyon and Highway 1 proposals — were analyzed. 11 SAR 3129-52. The Draft Environmental Impact Statement/Report generated numerous comments from citizens, federal and state agencies, and environmental groups, among others. The Hatton Canyon Coalition, a plaintiff here, submitted a report prepared by Wilbur Smith Associates, an engineering firm, and Skidmore, Owings & Merrill, an arehitec-ture/planning firm (Smith Report), which recommended converting Highway 1 into a four-lane highway with two major interchanges. 24 SAR 7389-87. In 1991, the Federal Highway Administration and Caltrans issued their Final Environmental Impact Statement/Report. The report/statement addressed many of the comments submitted in response to the Draft Environmental Impact Statement/Report and generally provided a more focused analysis. The Final Environmental Impact Statement/Report’s “Purpose and Need” section, for example, defined more precisely the desired Level of Service, an industry traffic category, setting Level of Service C as a project goal. 24 SAR 7648. Level of Service C refers to a category of “traffic service,” which describes traffic flow. Traffic conditions are ranked between Level of Service A (“free flow, with low volumes and high speeds”) and Level of Service F (“forced flow operation at low speeds, where volumes are below capacity”). The Environmental Impact Statement/Report recommended the adoption of Alternative 1C Modified, the Hatton Canyon realignment. This proposal includes a hew 57-foot bridge over the Carmel River, two new interchanges and the widening of an intersecting road. 24 SAR 7633. The estimated cost for this proposal was approximately $33.5 million. 24 SAR 7662. Despite criticism concerning the accuracy of the Environmental Impact Statement/Report, including comments from the Environmental Protection Agency, the Army Corps of Engineers and the Fish and Wildlife Service, the Federal Highway Administration certified the Final Environmental Impact Statement/Report in November, 1991 by issuing its Record of Decision. 27 SAR 8594-8608. Caltrans followed suit in December, 1991, issuing its Notice of Determination, certifying the Environmental Impact State-menVReport and adopting the findings and statement of overriding considerations required by the California Environmental Quality Act. 27 SAR 8654-55. The California Transportation Commission approved the Hatton Canyon project in November, 28 SAR 9049, and filed a Notice of Determination in December, 1991, 28 SAR 9073. The Federal Highway Administration had previously issued a “Wetlands Only Practicable Alternative Finding,” 25 SAR 7981-84, and a “Floodplain Only Practicable Alternative Finding,” 25 SAR 7985-88, as required by Executive Orders 11990 and 11988 respectively. In early 1992, plaintiffs City of Carmel, Monterey Peninsula Regional Park District, Hatton Canyon Coalition and Sierra Club (collectively Carmel) filed this action against the Federal Highway Administration and Caltrans, among others, contending that the Final Environmental Impact Statement/Report violated the National Environmental Policy Act, California Environmental Quality Act and Executive Orders 11988 and 11990. Carmel sought declaratory, injunctive and mandatory relief, as well as costs and attorney’s fees pursuant to Cal.Civ.P.Code § 1021.5 and 28 U.S.C. § 2412. The district court granted summary judgment to the defendants on May 16, 1994. Carmel filed this timely appeal. II We review de novo the district court’s determination that the Final Environmental Impact Statement/Report satisfied the National Environmental Policy Act, Oregon Natural Resources Council v. Marsh, 52 F.3d 1485, 1488 (9th Cir.1995), and the California Environmental Quality Act, see San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, 42 Cal.App.4th 608, 49 Cal.Rptr.2d 494, 500 (1996). We also review de novo the district court’s determination that the Federal Highway Administration satisfied Executive Orders 11988 and 11990. See United States v. Washington, 969 F.2d 752, 754-55 (9th Cir.1992). III Carmel alleges that five parts of the Final Environmental Impact Statement/Report violate both the National Environmental Policy Act and California Environmental Quality Act: (A) the wetlands discussion, (B) the Monterey pine discussion, (C) the consideration of reasonable alternatives, (D) the cumulative impacts analysis, and (E) the growth-inducing effects analysis. We consider Carmel’s National Environmental Policy Act and California Environmental Quality Act challenges independently. Although similar in intent and procedure, Citizens of Goleta Valley v. Board of Sup’rs of County of Santa Barbara, 52 Cal.3d 553, 276 Cal.Rptr. 410, 801 P.2d 1161, 1168 n. 4 (1990), these statutes differ in other ways, see City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir.1975). The National Environmental Policy Act’s requirements are procedural, Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 522 n. 1 (9th Cir.1994); the California Environmental Quality Act has both procedural and substantive elements. See San Joaquin Raptor/Wildlife, 49 Cal.Rptr.2d. at 497-98; see, e.g., Cal.Pub. Res.Code §§ 21002.1 (the California Environmental Quality Act imposes an affirmative duty on agencies to protect the environment). Although, we review only procedural concerns under both statutes, each has its own regulations and case law. Not surprisingly, however, our conclusions under each are identical. We address the National Environmental Policy Act claims first, and begin with several guiding principles. One rule bears repeating: the National Environmental Policy Act sets forth procedural mechanisms to ensure proper consideration of environmental concerns, it does not mandate particular substantive results. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1218, 55 L.Ed.2d 460 (1978). In reviewing Carmel’s challenge under the National Environmental Policy Act, we will not “substitute [our] judgment for that of the agency concerning the wisdom or prudence of a proposed action.” Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). The National Environmental Policy Act guards the environment through discussion and disclosure. Chief among the National Environmental Policy Act’s procedural safeguards, or “action-forcing” measures, is the Environmental Impact Statement — a detailed statement which discusses: (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(C). We review an Environmental Impact Statement under the “rule of reason” to determine whether it contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992). We make “a pragmatic judgment whether the [Environmental Impact Statement’s] form, content and preparation foster both informed decision-making and informed public participation.” Id. (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). “Once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, [our] review is at an end.” Id. We address Carmel’s claims in turn. A. Wetlands Carmel challenges the Final Environmental Impact Statement/Report’s wetlands discussion as both inaccurate and misleading and thus insufficient under the National Environmental Policy Act. Carmel disputes both the description of the wetlands in terms of the total acreage threatened by the proposed project and the Final Environmental Impact Statement/Report’s mitigation plan. 1. Wetlands Description Carmel first argues that the Final Environmental Impact Statement/Report fails to account for new wetlands created by the 1989 Loma Prieta earthquake. The Army Corps of Engineers and the Environmental Protection Agency agree; both questioned the Final Environmental Impact Statement/Report’s wetlands estimates. 27 SAR 8562-68 (Army Corps of Engineers letter); 27 SAR 8570-72 (Environmental Protection Agency letter); Ex. 3, Plaintiffs’ Req. for Jud. Notice, 3/19/93 (Army Corps of Engineers letter). The Environmental Protection Agency recommends a redelineation of the wetlands due to the Loma Prieta earthquake. 27 SAR 8572. The Army Corps of Engineers points out the Final Environmental Impact Statemenl/Report’s failure to include emergent wetlands in the lower canyon, 27 SAR 8563, and in a subsequent letter states that its own 1987 wetlands survey “is now outdated and has expired” due to “subsequent earth movements.” Ex. 3, Plaintiffs’ Req. for Jud. Notice, 3/19/93. Carmel seeks too much from the Environmental Impact StatemenVReport; the National Environmental Policy Act requires a “reasonably thorough” discussion of the environmental consequences in question, not unanimity of opinion, expert or otherwise. Agency “concerns” and criticism alone do not undermine the validity of an Environmental Impact Statement. See Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). Accurate scientific evidence remains essential to an Environmental Impact Statement, and in Seattle Audubon Soc. v. Espy, 998 F.2d 699 (9th Cir.1993), we held that an agency could not rely on “stale” scientific evidence or “ignore reputable scientific criticism” in its Environmental Impact Statement. Nonetheless, when faced with conflicting evidence, an agency may rely on its own evidence. We defer to the Federal Highway Administration and Caltrans here because the Final Environmental Impact Statement/Report’s wetlands discussion is “reasonably thorough.” The Final Environmental Impact Statement/Report clearly states that Alternative 1C Modified will result in the permanent removal of almost twelve acres of wetlands. 25 SAR 7791; see 25 SAR 7739^0 (total project area includes approximately thirteen acres of wetlands). The Final Environmental Impact Statement/Report characterizes the project’s impact on the wetlands as “significant” and concludes that certain riparian wetlands “[cannot] be duplicated to fully provide in-kind replacement of habitat values.” 25 SAR 7797. The Final Environmental Impact Statement/Report proposes various means to mitigate these losses; the proposed “conceptual” mitigation plan aspires to replace the removed wetlands at a ratio of “greater than 1:1.” 25 SAR 7797. The National Environmental Policy Act does not require that we settle disputes between scientists, it dictates that we defer to agency opinion if it is not otherwise shown to be arbitrary or capricious. See Laguna Greenbelt, 42 F.3d at 526; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (“Because analysis of the relevant documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ ”) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Two additional factors alleviate our concern as to possible inaccuracies in the Final Environmental Impact Statement/Report’s estimated acreage of threatened wetlands, and other problems resulting from the alleged use of “stale” scientific evidence. First, the mitigation plan seeks to replace removed wetlands on at least a 1:1 ratio. Thus even if the 1989 Loma Prieta earthquake did expand the effected wetlands, removal of any unaccounted for wetlands will be replaced under the mitigation plan. Second, any remaining inaccuracies will be cured in the § 404 permit process under the Clean Water Act, 33 U.S.C. § 1344, and its implementing regulations, 33 C.F.R. Parts 320-330; 40 C.F.R. Part 230. Although publication of the Final Environmental Impact Statement/Report is an important step toward the realization of the proposed project, often it is not the final step. Before any wetlands can be removed from Hatton Canyon, the Federal Highway Administration and Caltrans must secure a permit from the Army Corps of Engineers under § 404 of the Clean Water Act. If the objecting agencies remain opposed to the wetlands mitigation plan each can voice its concerns as the permit process evolves. See United States v. Ellen, 961 F.2d 462, 464 (4th Cir.1992) (the Army Corps of Engineers and Environmental Protection Agency have authority to make wetlands determinations under the Clean Water Act). Significantly, the critical letters from the Environmental Protection Agency and Army Corps of Engineers, cited above, were aimed at securing improvements in the mitigation plan prior to its submission for a permit. These letters did not attack the Final Environmental Impact StatemenVRe-port as inadequate under the National Environmental Policy Act. We do not intimate here that further “process” necessarily alleviates an agency’s duty under the National Environmental Policy Act. Rather this scenario serves to highlight the distinction between the National Environmental Policy Act and the Clean Water Act: the former is procedural and is simply not as demanding as the Clean Water Act on the issue of wetlands. See Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1294 (1st Cir.1996) (“In contrast to [National Environmental Policy Act’s] focus on process, the [Clean Water Act] is substantive, focusing upon the ‘integrity of the Nation’s Waters, not the permit process.’ ”) (citation omitted), cert. denied, — U.S. —, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). 2. Mitigation Plan Carmel next attacks the proposed wetlands mitigation plan. Carmel claims that the plan misrepresents other agencies’ positions, underestimates the difficulties involved, and contains insufficient detail to allow for proper evaluation. Carmel’s claim of misrepresentation refers to the Final Environmental Impact Statement/Report statements that: (a) the “[Fish and Wildlife Service] concurred with the impact assessment and proposed mitigation measures as detailed in the conceptual mitigation plan,” 25 SAR 7791, and (b) “maintenance and operation of the riparian restoration would be taken over by the Monterey Peninsula Water Management District under a Cooperative Agreement with Caltrans.” 25 SAR 7797. Both the Fish and Wildlife Service and the Monterey Peninsula Water Management District have disputed the accuracy of these statements. The Fish and Wildlife Service now characterizes the mitigation plan as “not sufficient.” 27 SAR 8625-26. The Monterey Peninsula Water Management District states that it has never formally agreed to manage the wetlands restoration project. 27 SAR 8500. Carmel’s claims of misrepresentation amount to semantics. The Fish and Wildlife Service has not officially concurred in a “final” mitigation plan for the wetlands, but it did write, in an October 30, 1989 letter, that “[w]e believe proper implementation of the Revised Plan would replace, in-kind, riparian habitat values and acres lost from the construction of Alternative 1C Modified (the Hatton Canyon Alternative).” 25 SAR 7991-92 (Exhibit N). The Fish and Wildlife Service did effectively “concur” in the proposed mitigation plan. Further, any fear of misrepresentation is dispelled by the fact that the Federal Highway Administration and Caltrans included the Fish and Wildlife Service’s “concurrence” letter as an exhibit to the Final Environmental Impact Statement/Report and cited to it accurately. Thus the Final Environmental Impact Statement/Report reader, whether an official deci-sionmaker or private citizen, was free to clarify questions as to the Fish and Wildlife Service’s position by reading the Fish and Wildlife Service letter in full. The Final Environmental Impact Statement/Report’s statement about the Monterey Peninsula Water Management District amounts to overstatement and is more troubling on its face. The Final Environmental Impact StatemenVReport inaccurately states that the Monterey Peninsula Water Management District will assume long-term maintenance of the wetlands restoration project. 25 SAR 7797. At the time the Environment Impact Statement/Report was written, the Monterey Peninsula Water Management District had not agreed to do so; Caltrans had only conducted informal discussions with the Monterey Peninsula Water Management District as to possible mitigation sites. 27 SAR 8500. The Final Environmental Impact StatemenVReport never asserts that a “formal” arrangement had been reached between the parties, although this could be inferred. Nonetheless, the Final Environmental Impact State-menVReport’s error is inconsequential because the mitigation plan is not yet final and further details may include a plan with the Monterey Peninsula Water Management District or another responsible agency. We do not condone the “loose” language used in the Final Environmental Impact State-menVReport on this issue, but ultimately this error did not significantly undermine the goals of the National Environmental Policy Act. See Laguna Greenbelt, 42 F.3d at 527 (“technical” nondisclosure not fatal to Environmental Impact Statement under National Environmental Policy Act if the decisionmaker “was otherwise fully informed as to the environmental consequences and [National Environmental Policy Act’s] goals were met.”). Carmel next objects on the grounds that the Final Environmental Impact StatemenVReport fails both to credit properly the difficulties involved in the proposed mitigation plan and to describe adequately the plan in sufficient detail to allow for proper evaluation. An Environmental Impact Statement must include a detailed statement regarding adverse environmental effects that cannot be avoided. 42 U.S.C. § 4332(2)(C)(ii). This requirement entails a duty to discuss measures to mitigate adverse environmental requirements. 40 C.F.R. § 1502.16(h); see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 1846-47, 104 L.Ed.2d 351 (1989). Mitigation must “be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.” Id. at 353, 109 S.Ct. at 1847. An Environmental Impact Statement need not contain a “complete mitigation plan” that is “actually formulated and adopted.” Id. at 352, 109 S.Ct. at 1846; see Laguna Greenbelt 42 F.3d at 528 (“[The National Environmental Policy Act] does not require a fully developed plan that will mitigate all environmental harm before an agency can act”). An Environmental Impact Statement cannot, however, omit a reasonably thorough discussion of mitigation measures because to do so would undermine the action-forcing goals of the National Environmental Policy Act. Id. at 529. The Final Environmental Impact Statement/Report here sets forth a detailed mitigation plan, including both on-site and off-site mitigation proposals. As noted the plan seeks to replace removed wetlands on a 1:1 ratio. The Final Environmental Impact Statement/Report proposes, among other things, an “environmentally sensitive area,” as well as other specific plans including “[rjeplacement and enhancement of approximately 2.1 acres of riparian wetland” in the existing Hatton Canyon drainage channel, replacement of “approximately 1.2 acres of riparian vegetation” near the existing Carmel River Bridge, and plantation of willows and other riparian vegetation. 25 SAR 7795-97. The proposed mitigation plan is intended to be “conceptual” only; the plan remains flexible to adapt for future problems. Further, the Final Environmental Impact Statement/Report also provides a contingent plan that “will be utilized should all or part of the proposed mitigation fail.” 25 SAR 7797. In the face of these details, we cannot say that the Final Environmental Impact Statement/Report’s discussion of the mitigation plan is not thorough, despite agency criticisms. B. Monterey Pine Carmel next argues that the Final Environmental Impact Statemeni/Report fails to properly analyze the project-specific impact on Hatton Canyon’s Monterey pine forest. Carmel claims, for example, that the Final Environmental Impact Statement/Report’s plan to plant seedlings is insufficient to “fully” mitigate the lost Monterey pines. We disagree. The Final Environmental Impact Statement/Report describes the impact on the Monterey pine forest in detail. The Final Environmental Impact Statement/Report forecasts the loss of 21 of the 70 acres of Monterey pines in the Hatton Canyon, amounting to an estimated loss of 13,150 out of a total of 57,400 trees. The Final Environmental Impact Statement/Report notes that this impact will be “greatest” at the “head of the Hatton Canyon near Carpenter Street” and is equally forthcoming about the importance of these trees, noting that this forest of Monterey pine is part of the “largest of the three remaining native Monterey pine populations in California.” 25 SAR 7788. The Final Environmental Impact Statement/Report also notes the continuing loss of these pines due to urbanization, natural fires, and the “extensive use of Monterey pines of unknown genetic origin in landscaping.” 25 SAR 7788. The Final Environmental Impact Statement/Report’s Monterey pine mitigation plan is equally detailed. The Federal Highway Administration and Caltrans propose to replant 20.3 acres with contract-grown Monte-rey pine seedlings grown from the Hatton Canyon population. The Final Environmental Impact Statement/Report concludes that these replantings “would mitigate the impact to the native Monterey pine forest to a non-significant level through replacement of trees removed with planting of the same genetic stock.” 25 SAR 7789. Carmel fails to undermine the Final Environmental Impact Statement/Report’s mitigation plan; its references to outside criticism alone are not sufficient to invalidate the Environmental Impact Statement/Report. The Final Environmental Impact Statement/Report’s Monterey pine discussion was reasonably thorough. We hold that the Final Environmental Impact Statement/Report’s mitigation plan satisfies the National Environmental Policy Act’s requirements. C. Reasonable Alternatives Carmel contends that the Final Environmental Impact StatemenVReport failed to properly consider several environmentally superior alternatives to the Hatton Canyon proposal. Specifically, Carmel argues that the Federal Highway Administration and Caltrans unjustifiably narrowed its statement of “Purpose and Need” from the Draft Environmental Impact StatemenVReport to Final Environmental Impact StatemenVReport by including a requirement of Level of Service C. Consequently, Carmel argues, the Federal Highway Administration and Caltrans preordained Alternative 1C Modified as the preferred choice because it was the only alternative which satisfied the Level of Service C goal. An Environmental Impact Statement must discuss “reasonable alternatives” to the proposed action. 42 U.S.C. § 4332(2)(C)(iii); Alaska Wilderness Recreation v. Morrison, 67 F.3d 723, 729 (9th Cir.1995); see 40 C.F.R. § 1502.14 (consideration of alternatives “is the heart of the environmental impact statement.”). The “rale of reason” guides both the choice of alternatives as well as the extent to which the Environmental Impact Statement must discuss each alternative. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (quoting State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C.Cir.1978)). The Environmental Impact Statement need not consider an infinite range of alternatives, only reasonable or feasible ones. 40 C.F.R. § 1502.14(a)-(c). Project alternatives derive from an Environmental Impact Statement’s “Purpose and Need” section, which briefly defines “the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. The stated goal of a project necessarily dictates the range of “reasonable” alternatives and an agency cannot define its objectives in unreasonably narrow terms. See Citizens Against Burlington, 938 F.2d at 196. We must determine whether the Final Environmental Impact Statement/Report’s “Purpose and Need” was reasonable, particularly whether Level of Service C was a reasonable goal, and then whether the alternatives considered were reasonable in light of the cited project goals. 1. Purpose and Need The Final Environmental Impact Statement/Report clearly set Level of Service C as a goal, a reasonable goal in light of the traffic difficulties which necessitated this project, and a goal previously considered in the Draft Environmental Impact State-menVReport. We begin with the Final Environmental Impact StatemenVReport’s “Purpose and Need” section, which reads: The purpose of the project is to relieve current traffic congestion, lessen emergency vehicle response time, reduce crossing conflicts at local intersections and driveways, improve safety, ameliorate air quality, and bring the rural road character back to the local area. Improvement for congestion relief to the area should provide capacity to meet traffic service needs for the next 20 years at Level of Service C in order to be a reasonable expenditure of public funds. Project alternative solutions would provide for improved level of service for through traffic on Highway 1 and improved road connections between Highway 1 and the existing local street system. Descriptions of the specific project alternatives are provided in Chapter II. 25 SAR 7648. First, the inclusion of Level of Service C in the Final Environmental Impact State-menVReport is an enhancement from the “Purpose and Need” section of the Draft Environmental Impact Statement/Report, but hardly a surprise. The Draft Environmental Impact Statement/Report’s “Purpose and Need” section does not specifically reference Level of Service C, it only comments generally as to traffic flow, noting: Project alternative solutions would provide for improved level of service for through traffic on Highway 1 and improved road connections between Highway 1 and the existing local street system. 11 SAR 3121. Level of Service C is explicitly mentioned in the Draft Environmental Impact Statement/Report’s “Problem Definition” section, which notes: The capacity of the existing highway has not kept pace with the increased travel demands. The Monterey County Transportation Commission has established [Level of Service C] as the minimum acceptable level of service. 11 SAR 3123. Level of Service C was also discussed in the “Preferred Alternative Recommendation” issued after the Draft Environmental Impact Statement/Report, but before the Final Environmental Impact Statement/Report. 14 SAR 4018. This finding made formal the Level of Service C goal and put all parties on notice. The Smith Report confirms this fact: in that document the Hatton Canyon Coalition’s own expert conceded that Level of Service C was a project goal. II FAR 7406, 7471. The Final Environmental Impact StatemenVReport’s “Purpose and Need” section simply enhanced its description of the project goal. That the Final Environmental Impact Statement/Report was “changed” or altered from its draft version to more clearly articulate its “Purpose and Need” is not inappropriate. To the contrary, the very purpose of a draft and the ensuing comment period is to elicit suggestions and criticisms to enhance the proposed project. See City of Grapevine, Tex. v. Department of Transp., 17 F.3d 1502, 1507 (D.C.Cir.1994). Second, Level of Service C is not an unrea^ sonable goal; nothing about this selection is either arbitrary or capricious. This project began in response to the severe congestion problems on Highway 1 in the City of Car-mel area. A route achieving Level of Service C would significantly alleviate traffic congestion, reduce accidents and achieve other transportation goals. Thus even if not mandated, a project attaining Level of Service C is a legitimate goal if balanced against competing factors. Here, the Federal Highway Administration and Caltrans simply refined the “Purpose and Need” section to more clearly state the project goals. Carmel disagrees and argues that the Final Environmental Impact Statement/Report was unjustified in “elevating” Level of Service C to a project goal because “any improvement” on the current Level of Service would be acceptable under the Draft Environmental Impact Statement/Report, particularly Level of Service D. Carmel cites the Smith Report for support: Whereas the maintenance of Level of Service (LOS) C is a desirable objective from the standpoint of traffic service and mobility, and is a current policy objective of some public agencies, such as Monterey County, this threshold is seldom attained in every location in any urban area as large as the Monterey/Carmel/Pacific Grove area. The attainment of [Level of Service C] is not an inflexible institutionalized mandate. Traffic improvement plans for many highway corridors of this state are not designed to maintain [Level of Service C]; [Level of Service D] is used as an acceptable (tolerable) threshold in many areas. Caltrans itself has no plans to upgrade certain congested corridors in other areas to [Level of Service C], or even [Level of Service D]. Monterey County is now formally evaluating its [Level of Service] policy as part of the Congestion Management Program; it is possible that D or E will soon be considered officially acceptable far major arterials and highways. II FAR 7484 (emphasis added). These assertions do not condemn the choice of Level of Service C as a goal. That the Federal Highway Administration and Caltrans viewed Level of Service C as important and as the most plausible project goal given the severe traffic problems along this stretch of Highway 1 cannot be said to be unreasonable simply because Level of Service D would have been a “tolerable” alternative. Third, and perhaps most important, Level of Service C was never the sole defined project goal. Several factors, including environmental and financial concerns, were weighed in the decisional process. The Final Environmental Impact Statement/Report lists a variety of factors considered in the “Selection Analysis:” “traffic capacity, delay, traffic operation, safety, driving time, local and regional planning, public input, environmental impacts and mitigation, and public costs.” 25 SAR 7639. These factors derive from the “Purpose and Need” section of the Draft Environmental Impact Statement/Report. 25 SAR 7648. Although these factors tip in favor of traffic concerns as five of the eight factors consider traffic in some regard, other factors were considered, namely the environment and public costs. Nothing in the Final Environmental Impact Statement/Report suggests that Level of Service C was elevated above the environmental and financial considerations listed. We hold that the choice of Level of Service C as a project goal, one of several, was not unreasonable. 2. Alternatives Having reviewed the project goals, we can now consider the range of alternatives analyzed in the Final Environmental Impact Statement/Report. All of the alternatives considered in the Final Environmental Impact Statement/Report, aside from the “no action” proposal, sought either to expand Highway 1, or to build a new freeway through Hatton Canyon. Alternative 1, with its various modifications, 1A, IB, 1C, 1C Modified, and ID, proposed a new freeway through Hatton Canyon. These versions of Alternative 1 differed as to where each rejoined Highway 1 to the south. Alternatives 3, 4 and 6 all proposed to improve the existing Highway 1 in some degree; Alternative 3 proposed to expand Highway 1 to three lanes in a targeted zone; Alternative 4, and Alternative 4 Modified, favored expansion to four lanes; and Alternative 6 proposed a six-lane highway. Alternative 7 contemplated both an enhancement to Highway 1 and a new Hatton Canyon freeway. These alternatives, with a few exceptions, were essentially the same as those outlined in the Draft Environmental Impact Statement/Report. The Draft Environmental Impact Statement/Report had previously considered and rejected several other proposals: (1) the Hatton Loop, (2) a freeway on the existing Highway 1, (3) a down-scoped Hatton Canyon route, (4) a Carmel Valley Road separation, and (5) high occupancy vehicle lanes (HOV). These alternatives were rejected for a variety of. reasons including cost and environmental impact. Carmel’s claim that Alternative 1C Modified was the only alternative that met the project goals is unfounded. Each of the alternatives considered in the Final Environmental Impact Statement/Report achieved the project goals, from traffic delay to safety to environmental impact, in varying degrees. No one alternative fulfilled all the goals completely. For example, Alternative 7 likely best satisfied the traffic goals, but it was costly and failed to conform to local planning specifications. Alternatives 3, 4 and 6 each had advantages from an environmental and traffic standpoint, although none were consistent with local planning and none reached the Level of Service C goal. Alternative 1C Modified meet the traffic goals, but was arguably less attractive from an environmental standpoint — even though these concerns were assuaged by the mitigation plans adopted. These proposals span the spectrum of “reasonable” alternatives and satisfied the requirements of the National Environmental Policy Act. See Veimont Yankee, 435 U.S. at 551, 98 S.Ct. at 1215 (“Common sense also teaches us that the ‘detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device thought and conceivable by the mind of man.”). Further, even if Carmel is correct in arguing that Level of Service C was the overriding project goal, Alternative 1C Modified was not the only alternative which satisfied that goal. Alternative 7 also met the Level of Service C goal. Alternative 1C Modified emerged as a favorite in large part, but not solely, because it met the requisite traffic goal. The Federal Highway Administration and Caltrans justified their selection of Alternative 1C Modified on the grounds that it would provide good service for up to twenty years as well as “prevent excessive traffic delays” and reduce traffic accidents, and thus save more lives than any other proposal. 25 SAR 7666. Further, only Alternative 1C Modified met the “goals” of the California Coastal Act and the Monterey County Local Coastal Plan. 25 SAR 7667. In choosing Alternative 1C Modified, the Federal Highway Administration and Caltrans properly rejected the Smith Report recommendation. The Smith Report analyzed the following three proposals: (1) widening Highway 1 with interchanges at Carmel Valley Road and Carpenter Street; (2) a three-lane road through Hatton Canyon; and (3) a four-lane highway through Hatton Canyon. The report endorsed widening Highway 1, characterizing this proposal as less costly than and environmentally superior to Alternative 1C Modified. The Federal Highway Administration and Caltrans properly concluded, in a separate report, against including this recommendation among the alternatives in the Final Environmental Impact Statement/Report on the grounds that it offered “no new, substantive proposal for alternative alignment that has not been previously considered and addressed in the [Environmental Impact Statement].” FR 57. The Smith Report’s alternative was similar to Alternative 4 Modified discussed in the Final Environmental Impact Statement/Report and thus did not merit either an independent analysis or inclusion in the Final Environmental Impact StatemenVReport. See Vermont Yankee, 435 U.S. at 551, 98 S.Ct. at 1215. Moreover, the Federal Highway Administration and Caltrans concluded that the Smith Report alternative would only achieve Level of Service F. FR 53-54. The other alternatives considered in the Smith Report, both down-scoped Hatton Canyon alternatives, were previously considered by the Federal Highway Administration and rejected. Both down-scoped projects entailed similar financing and environmental costs as Alternative 1C Modified although attaining less traffic capacity. Ultimately, Carmel’s disagreement with the Final Environmental Impact State-menVReport choice of Alternative 1C Modified appears to be a substantive one: Carmel prefers modifications to Highway 1 over the Hatton Canyon project. Although the merit of their environmental concerns may be strong, these concerns are beyond the scope of our review. See Robertson, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (“If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by [the National Environmental Policy Act] from deciding that other values outweigh the environmental costs.”). We reject Carmel’s reasonable alternatives challenge. D. Cumulative Impacts Carmel next argues that the Final Environmental Impact Statement/Report fails to adequately discuss the cumulative impacts of the. proposed Hatton Canyon project on the wetlands, Monterey pine and Hickman’s onion. The duty to discuss cumulative impacts in an Environmental Impact Statement is mandatory. See 40 C.F.R. § 1502.16. The controlling regulation defines “cumulative impact” as: 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. The Final Environmental Impact State-menl/Report fails both to catalogue adequately past projects in the area, and to provide any useful analysis of the cumulative impact of past, present and future projects and the Hatton Canyon freeway on the wetlands, Monterey pine and Hickman’s onion. The Final Environmental Impact State-menVReport considers the impact on these resources in individual sections dealing with each resource, and collectively in a section entitled “Environmental Consequences: Cumulative Impacts.” These analyses are not lengthy, and taken either separately or together they fail to provide sufficient information to satisfy the National Environmental Policy Act. To begin, the Final Environmental Impact StatemenVReport describes past projects in the area with generalities insufficient to permit adequate review of their cumulative impact. See Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 299 (D.C.Cir.1988) (“These perfunctory references do not constitute analysis useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts.”). The Final Environmental Impact Statement/Report refers generally to the “development projects” and Carmel’s “ongoing urbanization.” 25 SAR 7886. These descriptions are particularly inadequate in light of the Final Environmental Impact Statement/Report’s acknowledgment that the Carmel area has experienced “substantial growth” over “the last 30 years,” including development on “both sides of the Hatton Canyon.” 11 SAR 3124. The Final Environmental Impact Statement/Report deals more proficiently with planned future projects, although its reference to the “Growth Inducement” analysis is not particularly helpful as to specifics. The “Cumulative Impacts” section forecasts future development as “primarily residential and commercial,” including transportation improvements. The Final Environmental Impact Statement/Report specifically details these projects. 25 SAR 7886 (listing the following proposed development projects: Rancho Odello subdivision, Rancho Canada Lodge, San Carlos Ranch, Carmel Meadows subdivision, Mission Ranch, El Sur Ranch, Carmel River Inn and Point Lobos projects). Missing, however, is any discussion of how these projects together with the proposed Hatton Canyon project will affect the wetlands, Monterey pine and Hickman’s onion. See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1313 (9th Cir.1990) (“[the National Environmental Policy Act] requires that where several actions have a cumulative or synergistic environmental effect, this consequence must be considered in an [Environmental Impact Statement].”); see, e.g., Marsh, 52 F.3d at 1489 (holding Environmental Impact Statement for dam project insufficient because it did not properly consider the cumulative effects of that project and two existing dam projects on the fish population); Thomas v. Peterson, 753 F.2d 754, 755 (9th Cir.1985) (remanding for cumulative impact analysis of timber sales and road construction). The Final Environmental Impact Statement/Report’s individual discussions of the wetlands, Monterey pine and Hickman’s onion provide no further meaningful analysis of the cumulative impacts. Both the Monterey pine and the Hickman’s onion sections do note the relative importance and availability of these resources in the region. The Final Environmental Impact Statement/Report highlights, for example, the limited areas in California where Hickman’s onion is found and specifies the expected damage to this species from the Hatton Canyon freeway proposal. As to cumulative impacts, however, the Final Environmental Impact Statement/Report only notes “threats” to the Hickman Onion from other “development pressures.” 25 SAR 7790. The Federal Highway Administration and Caltrans argue throughout that their cumulative impact discussion, however brief, passes muster in the absence of a direct challenge by the plaintiffs to a specific action that the Final Environmental Impact Statement/Report fails to consider. That is, the Federal Highway Administration and Caltrans contend that Carmel fails to meet its burden of proof to show what other projects the Final Environmental Impact Statement/Report failed to consider. But the Federal Highway Administration and Cal-trans failed first; they did not properly describe other area projects or detail the cumulative impacts of these projects. The Federal Highway Administration and Cal-trans bear this burden under the National Environmental Policy Act. See City of Davis, 521 F.2d at 671 (“Compliance with [the National Environmental Policy Act] is a primary duty of every federal agency; fulfillment of this vital responsibility should not depend on the vigilance and limited resources of environmental plaintiffs.”) The Federal Highway Administration and Caltrans cite to, and rely on, the Carmel Valley Master Plan Environmental Impact Report to provide the missing cumulative impacts analysis. We are suspicious as to whether this document alone can supply the necessary analysis because the Final Environmental Impact Statement/Report lacks not only a description of the impacts of past, present and future development on the wetlands, Monterey pine and Hickman’s onion, it also lacks an analysis of the cumulative impact of these projects and the Hatton Canyon freeway on the wetlands, Monterey pine and Hickman’s onion. The Carmel Valley Master Plan Environmental Impact Report may assume, however, like other regional planning documents, that the Hatton Canyon highway would be completed; we cannot answer this question as it is not clear that the Carmel Valley Master Plan Environmental Impact Report was properly included in the record. Further it is not clear that the agencies properly incorporated the Carmel Valley Master Plan Environmental Impact Report into the Final Environmental Impact Statement/Report. We remand for entry of an order directing the Federal Highway Administration and Caltrans to determine whether the Carmel Valley Master Plan Environmental Impact Report was properly included in the record, properly incorporated and whether it provides the necessary cumulative impacts analysis. To the extent the agencies determine that this information must be supplemented, they must also consider the effect of any additions on the remainder of the Environmental Impact Statement/Report. E. Growth-Inducing Impacts Carmel next contends that the Final Environmental Impact Statemeni/Report fails to consider adequately the Hatton Canyon freeway's growth-inducing effects as required by the National Environmental Policy Act. Carmel argues, citing City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975), that construction of the Hatton Canyon freeway would necessarily induce growth, and that the Environmental Impact Statement/Report therefore must evaluate the range and scope of this potential development. Title 40 C.F.R. § 1502.16 requires an Environmental Impact Statement to consider both direct and indirect effects and the regulations define “effects” as including: growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. 40 C.F.R. 1508.8(b). Consideration of the growth-inducing effects furthers the National Environmental Policy Act’s information and public awareness goals. In City of Davis, we held that the defendant agencies failed to properly consider the growth-inducing impacts of a proposed freeway, the very intent of which was to promote future development. 521 F.2d at 675-77 (“The growth-inducing effects of the [proposed] project are its raison d’etre....”). The project site in City of Davis was a sparsely populated agricultural area, yet neither the state nor federal agencies involved prepared an Environmental Impact Statement or Report, having concluded that the interchange would have no significant effect on the surrounding environment. Id. at 667. The Federal Highway Administration and Caltrans did consider the growth-inducing impact of the Hatton Canyon proposal here, and although their analysis is not without fault, it satisfies the National Environmental Policy Act. The Final Environmental Impact Statement/Report notes that the Hatton Canyon project “had the potential to facilitate growth” but would not ultimately do so because of the development constraints imposed by local authorities. See 25 SAR 7880. The Final Environmental Impact Statement/Report also states that any impacts associated with the Hatton Canyon proposal were addressed in Environmental Impact Reports prepared for the Greater Monterey Peninsula Area Plan and the Carmel Valley Master Plan, concluding: “Alternative 1 does not have the potential for growth beyond that identified in the local plans.” 25 SAR 7880. Unlike the locale at issue in City of Davis, Carmel is a well developed area, and, although the Hatton Canyon freeway may induce limited additional development, it is the existing development that necessitates the freeway. See, e.g., 25 SAR 7879 (“very little opportunity for development would occur within the highway corridor.”). The construction of the Hatton Canyon freeway will not spur on any unintended or, more importantly, unaccounted for, development because local officials have already planned for the future use of the land, under the assumption that the Hatton Canyon Freeway would be completed. 25 SAR 7799-80. Although the relevant information is segmented here, as the Final Environmental Impact Statement/Report relies on both the Carmel Valley Master Plan and the Greater Monterey Peninsula Area Plan, the requisite analysis is provided. See Laguna Greenbelt, 42 F.3d at 524 n. 6 (use of state environmental documents appropriate given National Environmental Policy Act’s mandate requiring state and federal cooperation) (citing 40 C.F.R. § 1506.2(b)). Carmel notes that certain development is planned in the Hatton Canyon area that is contingent on the completion of the proposed freeway: development that would be “induced” by the freeway. In Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d at 524, we allowed agencies to rely on local planning documents in its Environmental Impact Statement to established that a proposed highway would not result in further growth because the surrounding land at issue was already developed or was otherwise committed to uses that were not contingent on the highway construction. Here, however, the Final Environmental Impact Statement/Report admits that development may result from the freeway project. This development is nonetheless planned for in the Carmel Valley Master Plan; it has been accounted for and properly analyzed. 25 SAR 7880. No further analysis is warranted. See Laguna Greenbelt, 42 F.3d at 526 n. 6 (the absence of a more thorough discussion in an Environmental Impact Statement of an issue that was sufficiently analyzed in referenced state materials does not violate the National Environmental Policy Act). IV Next, we turn to Carmel’s California Environmental Quality Act challenges. As noted, the California Environmental Quality Act sets procedural requirements similar to the National Environmental Policy Act. Friends of Mammoth v. Board of Sup’rs of Mono County, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049, 1057 (1972). An Environment Impact Report, like an Environmental Impact Statement, seeks “to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Citizens of Goleta Valley, 276 Cal.Rptr. 410, 801 P.2d at 1167. We review an Environmental Impact Report under Cal.Pub.Res.Code § 21168.5, which establishes the standard of review for agency action under the California Environmental Quality Act as: whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. See League for Protection of Oakland’s Architectural and Historic Resources v. City of Oakland, 52 Cal.App.4th 896, 60 Cal.Rptr.2d 821, 826 (1997). An agency fails to proceed “in a manner required by law” when its Environmental Impact Report omits relevant information and thus precludes informed decisionmaking and public participation. See Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692, 270 Cal.Rptr. 650, 657 (1990). We set out with care the controlling standards under the California Environmental Quality Act here, and although differences result from a direct comparison of the statutory language between the National Environmental Policy Act and California Environmental Quality Act, the two statutes are similar in application here. Although the California Environmental Quality Act imposes substantive requirements, we, as a reviewing court, will not “pass upon the correctness of the Environmental Impact Report’s environmental conclusions, but only upon its sufficiency as an informative document.” County of Inyo v. City of Los Angeles, 71 Cal.App.3d 185, 139 Cal.Rptr. 396, 399 (1977); see Rural Landowners Assn. v. City Council, 143 Cal.App.3d 1013, 192 Cal.Rptr. 325, 329 (1983) (“The final decision on the merits of a project is the responsibility of the lead agency.”). Given our analysis under the National Environmental Policy Act, our discussion here is brief. A. Wetlands Carmel attacks the Final Environmental Impact Statement/Report wetlands description and mitigation plan as inadequate under the California Environmental Quality Act. The California Environmental Quality Act requires that an Environmental Impact Report: identify the significant effects on the environment of a project, [ ] identify alternatives to the project, and [ ] indicate the manner in which those significant effects can be mitigated or avoided. Cal.Pub.Res.Code § 21002.1(a). The controlling regulation defines a “significant effect on the environment” as a “substantial, or potentially substantially, adverse change in the environment.” Cal.Pub.Res.Code § 21068. The Final Environmental Impact Statement/Report classifies the Hatton Canyon’s impact on the wetlands as “significant,” 25 SAR 7791, and thus presents a detailed discussion as to the area in question and plans to mitigate. The Final Environmental Impact Statement/Report, for example, unequivocally states that certain wetlands will be permanently destroyed. We hold that this discussion suffices under the California Environmental Quality Act. See Kings County Farm, 270 Cal.Rptr. at 656 (The “[California Environmental Quality Act] requires an [Environmental Impact Report] to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.”) (citing 14 C.C.R. § 15151). The Final Environmental Impact StatemenVReport’s mitigation plan is also sufficient under the California Environmental Quality Act. Mitigation plays a heightened role under the California Environmental Quality Act; once an environmental impact has been declared to be “significant,” as here, the agency is required to find that sufficient mitigation measures have been taken to lessen the project’s impact. If the agency finds that alternatives or mitigation measures are not feasible, the agency must adopt a statement of overriding considerations which states the specific reasons why “the project’s benefit outweighs the unmitigated effects.” See id. (citing Cal.Pub.Res. Code, §§ 21002, 21002.1, 21081; 14 C.C.R. §§ 15091-15093). The Federal Highway Administration and Caltrans proposed a detailed mitigation plan to compensate for the loss of wetlands. The proposed plan includes a replacement ratio of greater than 1:1, including both on-site and off-site mitigation. 25 SAR 7795-97. This presentation is sufficient to satisfy the California Environmental Quality Act. Agency criticism of these plans, standing alone, does not invalidate the Final Environmental Impact Statement/Report in the face of this thorough discussion of the wetlands and wetlands mitigation plan. See Laurel Heights Imp. Ass’n of San Francisco, Inc. v. Regents of University of California, 47 Cal.3d 376, 253 Cal.Rptr. 426, 764 P.2d 278, 294 (1988) (“It is also well established that ‘[disagreement among experts does not make an EIR inadequate.’ ”) (quoting Karlson v. City of Camarillo, 100 Cal.App.3d 789, 161 Cal.Rptr. 260, 269 (1980)). We reject Carmel’s challenge. B. Monterey Pine Carmel attacks the Final Environ- ■ mental Impact StatemenVReport’s Monterey pine mitigation plan as insufficient under the California Environmental Quality Act. As discussed above in Section IIIB, supra, the Final Environmental Impact Statement/Report details the area in question as well as the environmental consequences of the proposed freeway. The Final Environmental Impact Statement/Report characterizes the impact as “significant,” 25 SAR 7789, and sets forth a mitigation plan for replanting seedlings with adequate protection to ensure the survival of these pines, 25 SAR 7788-89. We hold this mitigation plan suffices under the California Environmental Quality Act. C. Reasonable Alternatives Carmel next attacks the Final Environmental Impact StatemenVReport’s alternatives proposals as unreasonable. Carmel asserts two arguments: (1) that the elevation of Level of Service C to a project goal was unreasonable, and (2) that the range of alternatives considered in light of this goal was unreasonable. The California Environmental Quality Act mandates consideration of alternatives in the Environmental Impact Report. See Cal.Pub.Res.Code §§ 21001, 21002.1, 21061, 21100; 14 C.C.R. § 15126(d); Laurel Heights, 253 Cal.Rptr. 426, 764 P.2d at 288 (The “[California Environmental Quality Act] and the Guidelines are replete with references to the need for a discussion of project alternatives.”). The range of alternatives meriting consideration is guided by the doctrine of “feasibility,” Citizens of Goleta Valley, 276 Cal.Rptr. 410, 801 P.2d at 1167, which is defined by statute as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors,” Cal.Pub.Res.Code, § 21061.1; see Laurel Heights, 253 Cal.Rptr. 426, 764 P.2d at 288. An Environmental Impact Report must “[djescribe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” 14 C.C.R. § 15126(d). California courts consider the statutory requirements for alternatives under the “rule of reason.” Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 106 Cal.App.3d 893, 165 Cal.Rptr. 401, 411 (1980). The Final Environmental Impact Statement/Report meets the requirements of the California Environmental Quality Act. We rely on our discussion in Section IIIC, supra. Level of Service C was a feasible project goal; its adoption as a project goal was reasonable given the congestion problems on Highway 1 as well as the “goals” of the local agencies. Further, Level of Service C was only one of several project goals. The alternatives considered each meet the project goals in varying degrees; at least one other alternative met the Level of Service C goal. Given the traffic, environmental and financial goals of the project, Alternative 1C Modified was a reasonable choice. The Final Environmental Impact Statement/Report’s discussion of alternatives was “meaningful” and contained “analysis sufficient to allow informed decision making.” Laurel Heights, 253 Cal.Rptr. 426, 764 P.2d at 291. D. Cumulative Impacts The California Environmental Quality Act’s cumulative impacts requirements closely mirror the federal standards, and thus the Final Environmental Impact Statement/Report is inadequate here as under the National Environmental Policy Act. See 14 C.C.R. § 15355. As in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, 27 Cal.App.4th 713, 32 Cal.Rptr.2d 704 (1994), the Final Environmental Impact StatemenVReport here fails to specifically list other relevant projects in the region, id. at 720, which precludes an analysis of the cumulative impact of those projects and the Hatton Canyon freeway. The Monterey Valley Master Plan, cited in the Final Environmental Impact Statement/Report may address these concerns. As before, we remand to the district court for a determination of this issue by the Federal Highway Administration and Caltrans. E. Growth-Inducing Effects Carmel attacks the Final Environmental Impact Statement/Report’s growth-inducing analysis as inadequate. The California Environmental Quality Act’s growth-inducing effects requirements differ from the federal standard. The California Environmental Quality Act requires a discussion of various considerations, including factors that could “foster economic or population growth,” remove obstacles to population growth, or “further tax existing community services.” See 14 C.C.R. § 15126(f). The California Environmental Quality Act also requires discussion of “other activities that could significantly affect the environment, either individually or cumulatively.” Id. The Final Environmental Impact Statement/Report’s discussion of growth-inducing effects here is fairly extensive. Although the Final Environmental Impact Statement/Report does not discuss the potential for economic or population growth, it does reference several local planning documents, including the Carmel Valley Master Plan and the Mon-terey Peninsula Area Plan which specifically include construction of the Hatton Canyon freeway in their growth plans, and discuss overall growth targets and limits. This information is adequate to satisfy the California Environmental Quality Act’s requirements. V Carmel argues that the Federal Highway Administration erred in finding that the Hatton Canyon project satisfied the requirements of Executive Orders 11988, 42 Fed.Reg. 26951 (1977), and 11990, 42 Fed. Reg. 26961 (1977). These Executive Orders direct federal agencies to minimize the adverse effect of federal actions on floodplains and wetlands. Id. As a threshold matter we consider whether these Executive Orders are subject to judicial review. We previously assumed, without analysis, that Executive Orders 11988 and 11990 were subject to judicial review. National Wildlife Federation v. Adams, 629 F.2d 587, 592-93 (9th Cir.1980); see Daingerfield Island Protective Soc. v. Babbitt, 40 F.3d 442, 447 (D.C.Cir.1994). Neither Executive Order explicitly creates a cause of action or mentions judicial review. We have recognized, however, that under certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency action and reviewed under the Administrative Procedure Act. See Oregon Environmental Council v. Kunzman, 714 F.2d 901, 903 (9th Cir.1983); see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 317-19, 99 S.Ct. 1705, 1725-26, 60 L.Ed.2d 208 (1979) (under the Administrative Procedure Act it is not necessary to find a private right of action under a particular statute in order to enforce a federal agency’s compliance with that statute). The Executive Orders here do not preclude judicial review and there is “law to apply,” as these Executive Orders set objective standards. We hold that both Executive Orders 11988 and 11990 are subject to judicial review under the Administrative Procedure Act. An agency’s findings under an Executive Order will be set aside only if they are “arbitrary, capricious, [or] an abuse of discretion” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). National Wildlife, 629 F.2d at 592 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). We consider whether the agency’s “decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. Our inquiry is to be “searching and careful,” but our review remains narrow: we will not substitute our judgment for that of the Federal Highway Administration. Id. A. Executive Order 11988 Executive Order 11988, entitled “Floodplain Management,” requires federal agencies taking action “in or affecting a floodplain” to think twice. The agency must consider the project’s effects on the floodplains and possible alternatives, and may proceed only if it finds that the “only practicable alternative” requires “sitting in” the floodplain. In designing its plan the agency must take steps to minimize potential damage to the floodplain. 42 Fed.Reg. 26951 (1977). The Federal Highway Administration issued a “Floodplain Only Practicable Alternative Finding,” which found Alternative 1C Modified to be the “only practicable alternative.” 25 SAR 7985-86. The report discussed and rejected Alternatives 3, 4 and 6 because each failed to meet either “Monterey County’s long-range planning and transportation goals,” or the “identified transportation need.” 25 SAR 7985-86. Carmel argues that because no federal, state or local law requires the proposed roadway to attain Level of Service C, the adoption of this goal unnecessarily narrowed the range of alternatives considered. This challenge mirrors Carmel’s previous attack on the use of Level of Service C as a goal and the range of alternatives subsequently considered. We again reject Carmel’s argument. As noted in Section IIIC, supra, the Federal Highway Administration did not act unreasonably in setting Level of Service C as a goal; Level of Service C was merely one of several project goals considered and the Final Environmental Impact Statement/Report considered a range of alternatives, not all of which satisfied the Level of Service C goal, and at least two of which did. The alternatives considered were reasonable and the Federal Highway Administration’s findings under Executive Order 11988 were neither arbitrary nor capricious. B. Executive Order 11990 Executive Order 11990 requires a “no practicable alternative” finding. Federal agencies who cannot avoid new construction in wetlands must: (1) make a finding that “no practicable alternative” to construction exists, and (2) include “all practicable measures to minimize harm to wetlands which may result from such use.” 42 Fed.Reg. 26961 (1977). An agency may consider economic, environmental and “other pertinent factors” in making these findings. Id. Carmel’s objection to Federal Highway Administration’s Executive Order 11990 finding is also a familiar one: Carmel again attacks the Final Environmental Impact StatemenVReport’s wetlands mitigation plan. Carmel argues that the mitigation plan fails to take “all practicable measures to minimize harm to wetlands which may result from such use,” as required. We previously held that the Federal Highway Administration’s “proposed” mitigation plan satisfied the National Environmental Policy Act because it was “reasonably thorough” in its discussion. Executive Order 11990 sets forth a more exacting standard than the National Environmental Policy Act. See National Wildlife, 629 F.2d at 591 (“We have no doubt that Executive Order 11990 extends a broader protective aura to wetlands than would [the National Environmental Policy Act] standing alone.”). The Federal Highway Administration’s mitigation discussion in its “only practicable alternative” memorandum although not lengthy, is adequately detailed to meet this standard even though it is not yet final. The mitigation plan remains only “conceptual,” subject to the necessary modifications. Although Executive Order 11990 imposes a continuing duty for the Federal Highway Administration to continue to take “all practicable measures to minimize harm to the wetlands,” the Federal Highway Administration has complied to date. YI Carmel moves for attorney’s fees under both state and federal law. The Equal Access to Justice Act, 28 U.S.C. § 2412(d), provides that in a civil action brought by or against the United States, the prevailing party may be awarded costs and attorney’s fees, provided the court finds that the position of the United States was not substantially justified and that there are no special circumstances that would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). To be a “prevailing party” under the Equal Access to Justice Act, a party need not prevail on all issues. Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1481 (9th Cir.1983). The California attorney’s fee statute, Cal. Civ.P.Code § 1021.5, provides that a court may award attorney’s fees to a “successful party” in an action that: has resulted in the enforcement of an important right affecting the public interest if: a significant benefit, whether pecuniary or nonpeeuniary, has been conferred on the general public or a large class of persons, the necessity and financial burden of private enforcement make the award appropriate, and such fees should not in the interest of justice be paid out of any recovery. Hull v. Rossi, 13 Cal.App.4th 1763, 17 Cal.Rptr.2d 467, 460 (1993) (citing Cal.Civ. P.Code § 1021.5). The only issue giving Carmel a potential entitlement to a fee award is the cumulative impacts issue. We grant leave to the district court to determine whether attorney’s fees are appropriate on this issue and if so, to fix the amount of the award. VII The district court aptly described the Final Environmental Impact StatemenVReport as “not perfect.” At most times, however, the Final Environmental Impact StatemenVRe-port is sufficiently thorough in its discussions to satisfy both the National Environmental Policy Act and California Environmental Quality Act. We AFFIRM on all claims except the cumulative impacts issue; we REVERSE and REMAND on that issue. We also affirm the Federal Highway Administration’s Executive Order findings. AFFIRMED IN PART, REVERSED IN PART and REMANDED. . Throughout this opinion, we cite to the state and federal administrative records. State administrative record references use the format: volume number in Arabic numerals, SAR, page numbers. Federal administrative record references use the format volume number in Roman numerals, FAR, page numbers. “FR” refers to the Federal Defendants-Appellees’ Supplemental Excerpts of Record; these references are cited as: FR, page number in Arabic numerals. . The National Environmental Policy Act requires the preparation of an Environmental Impact Statement for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The California Environmental Quality Act requires the preparation of an Environmental Impact Report on "any project which they propose to carry out or approve that may have a significant effect on the environment.” Cal.Pub.Res.Code § 21100(a). . The Environmental Impact Statement/Report defined the Level of Service categories as follows: Level of Service A describes a condition of free flow, with low volumes and high speeds. Traffic density is low, with speeds controlled by driver desires, speed limits and physical roadway conditions. Level of Service B is in the zone of stable flow, with operating speeds beginning to be restricted somewhat by traffic conditions. Drivers still have reasonable freedom to select their speed and lane. Level of Service C is .still in the zone of stable flow, but speeds and maneuverability are more closely controlled by the higher volumes. Most drives are restricted in their freedom to select their own speed, change lanes, or pass. Level of Service D approaches unstable flow with tolerable operating speeds being maintained though considerably affected by changes in operating conditions. Fluctuations in volumes and temporary restrictions to flow may cause substantial drops in operating speeds. Level of Service E cannot be described by speed alone, but represents operations at even lower operating speeds than in level D, with volumes at or near the capacity of the highway. Flow is unstable, and there may be stoppages of momentary duration. Level of Service F describes the forced flow of operation at low speeds, where the volumes are below capacity. These conditions usually result from queues of vehicles backing up from a reconstruction downstream. Speeds are reduced substantially and stoppages may occur for short or long periods of time because of the downstream congestion. In the extreme, both speeds and volume can drop to zero. 25 SAR 7657. . Carmel also sued various other state and federal defendants. For the purposes of this opinion, we refer to the state defendants collectively as Caltrans, and the federal defendants collectively as the Federal Highway Administration. . The term “significant” as used here in the Environmental Impact Statement/Report is a statutory term defined in the California Environmental Quality Act. The California Environmental Quality Act requires that an Environmental Impact Report both identify and describe any "significant” effects on the environment. The controlling statute defines a "significant effect on the environment” as a "substantial, or potentially substantially, adverse change in the environment.” Cal.Pub.Res.Code § 21068. . The Federal Highway Administration and Cal-trans have previously demonstrated a willingness to change their wetlands estimates, and nothing here suggests that they would not be amenable to further revision in the face of credible evidence. In the "Reevaluation of Draft Environmental Impact Statement” included with the Final Environmental Impact Statement/Report, the Federal Highway Administration incorporated changes that have occurred in their wetlands estimates. The "reevaluation” states: After circulation of the Draft [Environmental Impact Statement], the Army Corps of Engineers of Engineers (ACOE) delineated the wetland area on the Hatton Canyon drainage and found it to be approximately 10 acres. Mitigation measures were revised to compensate for the wetland acreage delineation by [the Army Corps of Engineers]. A Wetland Mitigation Plan, which will include on-site and off-site mitigation is being developed in coordination with the U.S. Fish and Wildlife Service, Environmental Protection Agency, Army Corps of Engineers, and the California Department of Fish and Game. 25 SAR 7599. . For example, the Environmental Protection Agency noted that the Final Environmental Impact Statement/Report's wetlands discussion did not fulfill the § 404(b)(1) Guidelines and thus proposed recommendations to bring the agencies into compliance. 27 SAR 8572. The Army Corps of Engineers explained that the purpose of its letter was to "clarify[ ] concerns regarding the proposed project’s impact on the aquatic environment and compliance with the Section 404(b)(1) Guidelines.” 27 SAR 8562. . The viability of the mitigation plan set out in the Final Environmental Impact Statemeni/Re-port has been severely criticized. The Fish and Wildlife Service, for example, questions the plan’s proposal to replace certain “natural” wetlands with "artificial” ones. 27 SAR 8626. The Environmental Protection Agency commented that the Final Environmental Impact Statement/Report's mitigation plan was "not specific” and thus the agency could not "adequately judge whether the measures described would offset project impacts.” 27 SAR 8572-73. . The National Environmental Policy Act’s implementing regulations were formulated by the Council on Environmental Quality and appear at 40 C.F.R. §§ 1500-1508. . Title 40 C.F.R. § 1502.14(a) requires that an Environmental Impact Statement: Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from the detailed study, briefly discuss the reasons for their having been eliminated. . The Draft Environmental Impact Statement/Report's "Purpose and Need” section reads in full: The purpose of the proposed project alternatives is to improve the capacity of Highway 1 and reduce crossing and turning conflicts associated with several local streets and private driveways. Project alternative solutions would provide for improved level of service for through traffic on Highway 1 and improved road connections between Highway 1 and the existing local street system. Descriptions of the specific project alternatives are provided in Chapter II. Improvements to Highway 1 are needed to reduce existing congestion on Highway 1 in the Carmel Hill area. The project alternatives would result in the following improvements to varying degrees: — The accident rates on the existing Highway 1 would be reduced; — Congestion at existing street intersections would be reduced; — Travel time would be reduced; — Air Quality within the project’s area of influence would be slightly improved; — There would be improved accessibility and safety for vehicles, bicyclists, and pedestrians from Carmel High School; — There would be improved highway capacity to handle existing peak hour and tourist season flows; and — Would be more consistent with the Mon-terey County General Plan. 11 SAR 3121. . Carmel correctly notes that Monterey County’s most recent transportation report, the Mon-terey County Congestion Management Plan, adopted after the Final Environmental Impact Statement/Report was issued, does not set Level of Service C as a fixed requirement, but rather a goal. The report states, in its “Interim Level of Service (LOS) Standard” section, that: This Level of Service Standard is interim, and will be updated as each local jurisdiction adopts a [Level of Service] standard equal to or better than that shown in standards 2, 3, or 4 below. Adoption of [a Level of Service] standard will be part of the conformity finding during the coming year. The intent is to resolve congestion problems and increase the [Level of Service] standard towards the long range policy goal of [Level of Service C] ... The objective of [Level of Service C] for the entire network is tempered by the requirement for lead agencies to avoid, where feasible, unacceptable environmental or cost consequences. XIII FAR 5732, 5735. . Each of the alternatives proposing enhancements to Highway 1, Alternatives 3,4 and 6, were numbered to reflect the number of lanes in the finished project. Thus Alternative 3 proposed expanding Highway 1 to three lanes; Alternative 4 proposes expanding Highway 1 to four lanes. Alternative 1 deals with the Hatton Canyon proposal and Alternative 7 is a combination of the Hatton Canyon and Highway 1 options. There was no Alternatives 2 or 5. . The Final Environmental Impact Statement/Report describes the proposed alternatives as follows: Alternative 1C Modified provides a four-lane divided freeway on a new alignment through Hatton Canyon from Carmel Valley Road to the existing freeway interchange at Carmel Hill (State Route 68/1). A two-lane conventional highway will cross the Carmel River on a new 57-foot wide bridge and transition into the new freeway near Carmel Valley Road. The existing Carmel River Bridge and the roadway between Oliver Road and the southern limits of the new alignment would be removed. A new connection between the existing highway at Oliver Road and the new alignment would be constructed with an at-grade intersection on the new alignment between Rio Road and the Carmel River Bridge. Interchanges on the new freeway will be constructed at Carmel Valley Road and at Carpenter Street. A grade separation will be constructed at Rio Road. Carmel Valley Road will be widened from two to four-lanes between the existing highway and Carmel Ranch Boulevard.... The estimated cost of the selected alternative [is $33 million]. 24 SAR 7660-7662. Alternative 3 would widen the existing highway to three lanes from Carmel Valley Road to Morse Drive, and improve the existing three lane section from Morse Drive to Ocean Avenue. Left-turn channelization would be provided for all public road connections between Carmel Valley Road and Morse Drive. The existing left-turn pocket from southbound Highway 1 to Carmel Valley Road would be lengthened to provide additional storage. [Cost is estimated at $3.7 million.] Alternative 4 would widen the existing Highway 1 to four lanes from Rio Road to Ocean Avenue. Left-turn channelization would be provided for all public road connections between Carmel Valley Road and Ocean Avenue. The existing left-turn pocket from southbound Highway 1 to Carmel Valley Road would be lengthened to provide additional storage. [Cost is estimated at $4.5 million.] [Alternative 4 Modified] As a result of comments from the public review of the [Draft Environmental Impact Statement] and comments received at the project Public Hearing, a modification of Alternative 4 was developed which included an interchange at Carmel Valley Road.... Four design variations of the interchange were considered: — Alternative 4-1A would include an interchange which would have both the southbound Highway 1 to eastbound Car-mel Valley Road (CVR) movement, and the westbound CVR to southbound Highway 1 movement passing under Highway 1. The two movements would be separated by a traffic signal. The interchange would also provide northbound Highway 1 with on and off ramps. — Alternative 4-1B does not provide for the westbound CVR to southbound Highway 1 movement at the proposed interchange. The westbound/southbound move would be via Carmel Rancho Blvd. and Rio Road, as is required under present conditions. — Alternative 4-2A would the be same as Alt 4-1A except that the proposed four lane section of Highway 1 would end at Carmel Valley Road. Between Carmel Valley Road and Rio Road, only two lanes would be provided on highway 1. — Alternative 4 — 2B would be the same as Alt 4-1B except that the proposed four lane section of Highway 1 would end at Carmel Valley Road. Between Carmel Valley Road and Rio Road, only two-lanes would be provided on Highway 1. [Estimated costs range from $5.3 million to $9.4 million.] Alternative 6 would widen the existing Highway 1 to four-lanes from Rio Road to Carmel Valley Road. From Carmel Valley Road to Carpenter Street, Highway 1 would be widened to six lanes with a two-way left-turn lane. North of Carpenter Street, the right lane in each direction would become the exit and entrance ramps to/from the Route 68 (west)/Highway I interchange. The remaining four through lanes would conform to the existing Highway 1 freeway to Monterey. [Estimated cost is $11.2 million.] Alternative 7 would place Highway I on a new alignment through Hatton Canyon (Alternative 1) and widen the existing Highway 1 northbound roadway to three lanes from Carmel Valley Road to Ocean Avenue (Alternative 3). [Estimated cost is $33-34 million.] 24 SAR 7677-7700. This range of alternatives is essentially similar to the alternatives outlined in the Draft Environmental Impact State-menl/Report. . The Final Environmental Impact Statement/Report also lists the following transportation projects: the extension of Rio Road past Carmel Rancho to connect into Carmel Valley Road, and the widening of Carmel Valley Road to four lanes from Via Petra to Robinson Canyon Road. 25 SAR 7886. . As to the Monterey pine section, the Final Environmental Impact Statement/Report reports: The native Monterey pine forest in Hatton Canyon is part of the largest of the three remaining native Monterey pine populations in California. The Monterey population is rapidly being reduced in size and integrity by the urbanization of the area. The extensive removal of native Monterey pines without replacing them, suppression of natural fires, and the extensive use of Monterey pines of unknown genetic origin in landscaping have all contributed to the loss of the native populations. The introduction of Monterey pines of unknown genetic origin has the potential of producing mixed populations that are more vulnerable to insect attacks, disease and environmental stress than are the native populations. The special circumstances surrounding the remaining native stands of Monterey pine has led to their placement on the California Native Plant Society's Inventory of Rare and Endangered Vascular Plant (1988) as a species of limited distribution. The impact on the native Monterey pine forest is considered significant. 25 SAR 7788-89. . Several documents were included in the record with Plaintiff’s March 19, 1993 request for Judicial Notice, including the Carmel Valley Master Plan. The Carmel Valley Master Plan Environmental Impact Report was not among the documents included with this request. . The California Environmental Quality Act is implemented through a variety of “guidelines'' which are published at 14 C.C.R. § 15000, et seq. . Title 14 C.C.R. § 15355 states: 'Cumulative impacts' refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. (a) The individual effects may be changes resulting from a single project or a number of separate projects. (b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time. . The Federal Highway Administration implementing regulations define "practicable” as "capable of being done within reasonable natural, social, or economic constraints." See 23 C.F.R. § 650.105(k) (implementing Executive Order 11988). . The "Floodplain Only Practicable Alternative Finding” did not address Alternative 7 explicitly, although the wetlands effect from that proposal could be readily ascertained by combining the effects noted for Alternatives 1 and 3. . Federal Highway Administration’s "Measures To Minimize Harm" discussion stated the following: The proposed project includes compensation for the loss of approximately 11.95 acres of riparian wetlands which will be permanently displaced. A Conceptual Wetland Mitigation Plan has been developed, with consultation and coordination from the U.S. Fish and Wildlife Service. The proposed mitigation would include restoration of the 11.95 acres impacted, at a minimum ratio of 1:1. Approximately 2 1/2 acres would be restored within the project area in Hatton Canyon, 1 acre would be restored at the location of the existing bridge, and the remainder restored on the Carmel River upstream from the project area. The offsite mitigation would be part of an effort by the Monterey Peninsula Water Management District to reestablish the historic riparian woodland that once bordered Carmel River. Planned work includes the planting and maintenance of riparian woodland and associated understory species. The entire restoration site would be monitored for a period of five years to ensure the success of the restoration. The U.S. Fish and Wildlife Service concurred with the Conceptual Wetland Mitigation Plan in June, 1988 (See Exhibit N). 25 SAR 7984.

City of Carmel-by-the-Sea v. United States Department of Transportation

TROTT, Circuit Judge, Concurring and Dissenting. Then I witnessed the torture of Sisyphus, as he wrestled with a huge rock with both hands. Bracing himself and thrusting with hands and feet he pushed the boulder uphill to the top. But every time, as he was about to send it toppling over the crest, its sheer weight turned it back, and once again towards the plain the pitiless rock rolled down. So once more he had to wrestle with the thing and push it up, while the sweat poured from his limbs and the dust rose high above his head. Homer, The Odyssey (E.V. Rieu & D.C.H. Rieu trans., Penguin Classics 1991). I THE PROJECT GOAL AND ITS ALTERNATIVES This project began in 1947 when California’s Department of Transportation recognized a serious traffic congestion problem along Highway 1. In 1953, the Department formally designated the affected area as a “freeway” which permitted it to be rebuilt as such. This designation raised a storm of protest, however, and was formally opposed by the City of Carmel. The controversy generated by the idea of a freeway close to the City of Carmel caused the Department to look for alternatives, and the Hatton Canyon Freeway alternative thus surfaced in a Traffic Report in September of 1953. This alternative was formally supported by Carmel in a 1954 resolution which says, “NOW, THEREFORE, BE IT RESOLVED that the City Council reaffirms the feeling expressed in Resolution No. 1373 opposing the location of a freeway along Highway # 1, and strongly urges that every possible consideration be given to the Hatton Canyon Route as much more desirable.” It is fair to say that from that time until the present, over 40 years, this issue in great detail has been under almost constant consideration by everyone with an interest in it. In February, 1957, Monterey County formally entered into a Freeway Agreement with the State Department of Transportation embracing the Hatton Canyon alternative. The Department and others then devoted considerable attention to the effect of the project on the Monterey pine. Numerous alternatives were proposed to accommodate this distinctive ecological interest. During the 60’s and 70’s the project plodded along, sometimes forward, sometimes backward as various concerns raised by the project were batted back and forth by interested individuals and groups. At times the City of Carmel was for, and then against, the Hatton Canyon alternative-depending on the interests with the upper political hand in city government. In 1978, the project seems to have gone dormant for a lack of money at the state level, and it went on the back burner. In 1982, the Department tentatively decided to scrap the Hatton Canyon freeway, among other reasons because of the controversy it had generated. However, the plan to rescind the freeway was greeted with considerable opposition, notably from Carmel, the City of Monterey, the Monterey County Transportation Commission, and the Sierra Club. The Sierra Club went on record with this statement: “We urge the California Transportation Commission not to abandon its Hatton Canyon right of way. We further urge that CalTrans reject any proposals to widen the present Highway 1 between Rio Road and Ocean Avenue. Such widening would represent a ‘Band-Aid’ approach to congestion problems which have reached crisis dimensions in the last 10 years.” Everyone interested continued to acknowledge the problem, but a consensus solution remained elusive. The Department held a hearing on the proposed rescission. Speaking against it and in favor of the Hatton Canyon freeway was the City of Carmel. Carmel won, and the Department included the project in its 1983 Improvement Program, for construction in 1988. What followed is quite significant. Both the Department and the Federal Highway Administration commenced wide-scoped initiatives to present this project to the public through informational meetings and to secure local input. Citizens advisory groups cropped-up, and the Department engaged in numerous studies for two years in preparation for a Draft EIS/R. The subjects of these impact studies and inquiries included Monterey pines, wetlands, plant species too numerous to list, geological hazards, endangered species, wildlife, vegetation, seismic hazards, traffic analysis, noise, historic property, archeology, visual impacts and aesthetics, and hydrology. Various alternatives were considered and rejected along the way to the Draft EIS/R, including widening Highway 1 and attacking the problem with a different building configuration known as the Hatton or Carmel Loop. In fact, the project was aivash in alternative proposals. Out of all of these extensive studies, investigations, contributions, and proposals of alternatives from the interested parties came the Draft EIS/R in 1986. It was filed with the State Clearinghouse and noted in the Federal Register. The Department then held an extensive public hearing on the draft, and every public entity involved declared itself as supporting the Hatton Canyon alignment. Eight months later, on June 22,1987, after consideration of the massive input it had received, the Department took a step that is critical in analyzing the appellants’ ambush claim: the Department issued an interim report indicating its Preferred Alternative recommendation for the project, Alternate 1C. In this comprehensive document, prepared after a public hearing in Carmel on December 11, 1986, the Department specifically identified LOS C as the project goal: I. Alternatives A. Selected Alternate Alternate 1C is selected for construction. It is the only practical plan that provides acceptable traffic service through the project area for a reasonable period of time.... B. Other Alternates 1. [No build]. 2. Alternate 3. [Add a lane to Highway 1]. 3. Alternate 4. [With four variations] [Widen the existing two-lane conventional highway to four lanes]. 4. Alternate 6. [Widen the existing two and four-lane conventional highways to six lanes], 5. Alternate 7. [Combine Alternates 1 and 7]. II. Transportation Problem A. Criteria Level of Service is a qualitative measure used to evaluate traffic operational conditions .... The Monterey County Transportation Commission established Level of Service C as the minimum acceptable for roads within Monterey County. The American Association of State Highway and Transportation Officials released “A Policy on Geometric Design of Highways and Streets” in 198L That policy notes that Level of Service C is appropriate for the proposed new freeway or for maintaining the existing arterial highway. A minimum Level of Service D is appropriate for the existing highway if it becomes a Collector Street (when through traffic is on new freeway). A period of 20 years has been used as the basis for traffic analysis and project design. Traffic for that period can be estimated with reasonable accuracy. Radical changes in land use or traffic patterns are not expected. Note: Future traffic volumes would exceed highway capacity by unrealistic amounts with “no build” or Alternate 3. Analysis of future traffic conditions is impractical for these plans and they have not been included in traffic summaries with other alternates. B. Existing Controls There are four major areas along the existing highway within the project limits that frequently operate at or near capacity. These sections are controlled by intersections at Rio Road, Carmel Valley Road, Ocean Avenue and Carpenter Street. Operation near the Carmel Valley Road intersection is also limited by narrow roadways. * * * * * * D. Available Options There are three basic methods that could improve the traffic operation. 1. Enlarge the existing conventional highway system. 2. Convert the existing conventional highway to a freeway. 3. Remove through traffic to another facility and leave the existing highway for local traffic. Enlarging the existing highway facility is represented by Alternates 3,4, 4 Modified and 6. Converting the existing highway to a freeway was proposed in 1955 at a Public Hearing before the California Highway Commission. It was determined that this plan was unacceptable to the community. Development along the existing highway in the following 30 years has now made it impractical to convert it to a freeway. Removing through traffic from the local traffic is represented by the selected alternate (1C). The only area now available to construct a new highway is through Hatton Canyon. This highway route was adopted by the California Highway Commission in 1956. Adjacent land has since been extensively developed. A significant shift in highway location is impractical because of the City of Carmel-by-the Sea on the west and the Peninsula ridge-line on the east. Once again, LOS C occupies a prominent role in this process. Another round of comment on the Preferred Alternative followed, culminating two- and-one-half years later on October 25, 1989 with the publication of the first Final EIS/R by the Department. In the interim, the Department as required by law prepared a written Reevaluation of the project to assess changes that had taken place since the circulation of the Draft and to revise the Draft as appropriate to accommodate the extensive public and official input that had been received. But this gauntlet was not close to over. The FHWA had yet to act. One must not lose sight of the fact that this was a joint federal and state project requiring compliance with the environmental laws of both. Before the FHWA approved the Final EIS/R, it consulted with (1) the federal Environmental Protection Agency, which was responsible for NEPA enforcement, (2) the Army, which had jurisdiction over the wetlands, and (3) the United States Department of the Interior, Fish and Wildlife Service, which was responsible for the Endangered Species Act. Furthermore, the defendants received, considered, and rejected during this period a submission from the appellants which included highway-widening alternatives. All of this delayed federal approval of the final product until October 7, 1991 when the Department certified the Final EIS/R. The document was then the subject of extensive public and official comment, followed by approval of the project by the Commission on November 27, 1991. In light of all of this, Judge Beezer’s analysis and conclusions regarding whether reasonable alternatives were adequately considered are certainly sound. If this extensive process amounts to an ambush, as claimed by the City of Carmel, or a failure of the responsible agencies to take a hard look at the relevant environmental concerns as they worked toward a solution to the traffic problems everyone in the world admits exist, or if those interested in the project did not know what to comment on, then Wonderland is real. To undo this remarkably detailed process based on a groundless claim of surprise by the plaintiffs as to the goal of LOS C would be an absurdity of the profoundest kind. This entire case history is the story of an informed and painstaking search for viable alternatives to solve a major traffic congestion problem with as little damage to the environment as possible. To order everyone now to go back and look for more alternatives would add a new episode to the travails of Sisyphus. I cannot conceive of a reasonable alternative that has not been considered to death. The appellants’ claim that LOS C’s appearance in the Final EIS/R is a surprise betrays, on this record, a desire not just to make sure that the procedural steps in this project were properly followed, but merely to upset the appropriate decisionmakers’ substantive conclusion in favor of the Hatton Canyon freeway. This lawsuit is patently and inappropriately outcome-driven, and the City of Carmel has been a moving sharpshooter as the process has unfolded. The Government’s allegation that Carmel has “reversed its position on the Hatton Canyon Freeway five times” is borne out by the record. As noted in the Draft EIS/R, the City of Carmel requested realignment of Highway 1 to Hatton Canyon in 1953. In 1970, the City of Carmel asked that the Hatton Canyon alternative be expedited and, in 1971 that the California State Transportation Commission give it a high priority. As late as 1986, after the Draft EIS/R was circulated, the City of Carmel swppoyted Alternative 1, the very same alternative it now opposes. I quote a letter dated January 7, 1987 from City Administrator Douglas J. Schmitz to Gary Ruggerone of California Transportation: The [Draft EIS/R] is thorough in its analysis of the primary route and the alternatives. On 6 January 1987, the City Council of the City of Carmel-by-the-Sea considered the Draft Environmental Impact Statement for the Highway One Improvement Project. With one abstention, the City Council unanimously supports Alternative 1 (Hatton Canyon) and Subalternative 1C for the southern portion of the route. It was not until March 1990 that the City changed its mind. The Sierra Club finds itself in a similar position, having originally submitted a comment letter supporting the Hatton Canyon alignment as “the only logical long term solution.” Two years later, they rescinded their approval in principle, stating that “we no longer endorse our January 7, 1987 draft E.I.S. comments.” The point of these observations about the shifting positions of the litigants is not to castigate anyone for changing one’s institutional mind, but to indicate that this was a complicated work in progress during which everyone had an ample opportunity to participate in the “hard look” required of the project’s proponents. But substantive disagreement with the Hatton Canyon freeway is not a basis under NEPA on which this process can be overturned. No matter how many times this limitation on our jurisdiction is pointed out to litigants and lawyers, it is ignored time and time again. I am unable to fathom on this enormous record spanning four decades why anyone responsible for public funds suddenly in the Final EIS/R would pursue this expensive and consequential project with a target level of service of D, E, or F in mind, i.e., unstable traffic flow at best and stoppages at worst. On this record, LOS C is the only one that makes sense as a goal. To quote from the Final EIS/R, “Alternative 1C Modified [which includes LOS C] provides reasonably good service for both through and local traffic for at least 20 years.... None of the other alternatives prevent excessive traffic delays, particularly at the [sic] Carpenter Street.” The report also says that, based on existing studies, Alternative 1C would result in 3000 less traffic accidents over a 10-year period than any other alternative, which includes 500 less injuries, and 10 less deaths. Alternative 1C is the only alternative consistent with the requirements of the California Coastal Act and the Monterey County Local Coastal Plan. Thus, I can discern nothing arbitrary or capricious or illegal about its selection by these decisionmakers. In effect, LOS C is just another way of saying exactly what the Draft EIS/R Purpose and Need section says: Our goal is to free up traffic. To aim for LOS D or less, which seem to describe the very problem sought to be ameliorated, would seem irresponsible and wasteful. Attacks like the appellants’ on the motives and integrity of governmental agencies are not new, nor are they uncommon. The District of Columbia Circuit confronted a similar baseless charge in City of Grapevine v. United States Dep’t of Transp., 17 F.3d 1502 (D.C.Cir.), cert. denied, 513 U.S. 1043, 115 S.Ct. 635, 130 L.Ed.2d 542 (1994). In that case, a different set of plaintiffs made the same sort of goal-oriented bad faith claims. Wisely, the court said it would “pass over the facile implication that the FAA harbored an improper motive for changing the statement of purpose in the FEIS.” Id. at 1506-07. The appellants’ claim here is nothing more than a similar distraction. They have not unearthed anything that calls into question the bona fides of those responsible for this demanding and unrewarding process. II THE WETLANDS Appellants claim that the Final EIS/R understates the impact of this project on some 12 acres (or slightly more) of wetlands, and that the Final EIS/R’s approach to the mitigation of such an impact was “inaccurate,” “misleading,” and “not specific.” I respectfully believe that the alleged indicators of such alleged defects pointed to by the appellants-either individually or in the aggregate-fail to support such claims. The key to evaluating the wetlands issue raised by the appellants is to use the right approach. “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). “NEPA merely prohibits un-informed-rather than unwise-agency action.” Id. at 351, 109 S.Ct. at 1847. Based on this principle, for example, NEPA would not have been violated in this matter if the agencies, after complying with the Act’s procedural prerequisites, had decided that the benefits of the proposed freeway justified this project notwithstanding a significant loss of existing wetlands area. See id. Our precise marching orders as to the discussion of the mitigation of environmental harm are spelled out in Methow Valley Citizens. They are as follows: There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.... It would be inconsistent with NEPA’s reliance on procedural mechanisms-as opposed to substantive, result-based standards-to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act. Id. at 352-353, 109 S.Ct. at 1846-47; see also Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517 (9th Cir.1994) (“NEPA requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated.”). It would be a mistake, therefore, for us to approach the wetlands issue asking whether the proposed mitigation measures meet anyone’s substantive expectations or to base our evaluation of this EIS on whether its proposed mitigation features amount to a “fully developed plan.” Thus, we look at the Final EIS’s handling of the wetlands aspect of this project and ask only (1) if it adequately arrays for the public and for the decisionmakers sufficiently detailed information concerning significant environmental impacts on the basis of which an informed decision-including mitigation-can be reached, and (2) does its presentation of the relevant wetlands information serve NEPA’s “action-forcing” purpose? See Methow Valley Citizens, 490 U.S. at 349, 109 S.Ct. at 1845. In other words, does it contain a “reasonably thorough discussion of the significant aspects of the probable environmental consequences?” California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Chapter IV of the Plan is entitled “Environmental Consequences.” No. 3 of this Chapter tells the reader that Alternatives IB and 1C Modified will “remove” approximately 11.95 acres of wetlands. “Remove” means to get rid of. I do not understand how the impact of this alternative on wetlands can be said by the appellants to be ambiguous or understated. To quibble at the margins about the precise acreage is irrelevant because the freeway is going to wipe out or materially rearrange virtually all the wetlands in its path. This statement surely informs the public and the decisionmakers of the environmental consequences of this Alternative, as it does in turn about all the others; and it is certainly “action-forcing.” A chart is present in the Plan comparing the environmental consequences of the numerous Alternatives against each other. Anyone reading the document cannot miss this relevant information. The document itself underscores its importance, and in so doing it appropriately shifts from damage to the wetlands to mitigation of the same: Riparian wetlands are identified in the Greater Monterey Peninsula Area Plan as a limited habitat, and the Carmel River riparian is considered to be of “critical importance” in the prevention of riverbank erosion. The loss of an additional 11 to 12 acres of riparian wetlands under Alternative 1 is considered significant. Accordingly, the Plan then describes “Proposed Mitigation Measures,” described clearly and explicitly as “conceptual.” The most significant aspect of these measures is a commitment to [replace] riparian wetland habitat on at least a l.T basis. The proposed mitigation would compensate for acreage impacts to existing palustrine wetland and palustrine emergent resources and would fully meet the FWS [Fish and Wildlife Service] Resource Category 2 Goal of no net loss of in-kind wetland habitat values. This conceptual Mitigation Plan, which must be read in its entirety to get its full impact, calls for the establishment during freeway construction of an ESA, or a feneed-off environmentally sensitive area, “which the contractor would be prohibited from using ... for any purpose.” The Mitigation Plan then makes detailed provisions for the replacement and enhancement of both “on-site” and “off-site” wetlands. These provisions go so far as to specify the types of trees-eight different kinds-to be planted in the affected areas and even require that the areas designated as sources for the cuttings “not be ‘clear cut,’ ” and that only “insect and disease free willow cuttings would be used.” Moreover, after approval by the FWS, the off-site riparian wetland replacement plantings are scheduled to be “in place at least one year prior to the start of construction activities for the proposed highway improvement.” Management of this restoration plan is assigned to the Monterey Peninsula Water Management District under a Cooperative Agreement with CalTrans, to be monitored for five years with the preparation of annual reports. Finally, the Mitigation Plan includes “a contingency plan which will identify additional mitigation measures and/or sites that will be utilized should all or part of the proposed mitigation fail,” all of this at a cost of $850,000. Even with all of this detail, however, the Final EIS/R pulls no punches when it sums up what is happening and why: The proposed mitigation measures are intended to re-create forested riparian wetland habitat similar to that which would be directly affected by the highway construction. With the replacement plantings at greater than a l.T ratio, and the start of the off-site and most of the on-site replacement plantings at least one year prior to the start of highway construction, the proposed mitigation would insure no loss of riparian wetland acreage or habitat value. Even with proposed mitigation, the impact to riparian wetlands from Alternative 1 is considered significant. The riparian wetland, with associated upland in Hatton Canyon can not be duplicated to fully provide in-kind replacement of habitat values. There are no practicable design variations of Alternative 1C Modified that would reduce or avoid wetland impacts. The width of Hatton Canyon is less than the width necessary for the roadway. Further cutting into the east wall of Hatton Canyon could result in a slight reduction in wetland impacts, however, the additional cut would require the taking of additional acres of Monterey Pine Forest, all of the rare Hickman’s onion preserve, and several residences. The substantial impact of this design variation, to preserve a minor isolated portion of riparian wetland is not practicable. South of Carmel Valley Road, the canyon opens up to the Carmel Valley. At this location, the width necessary for the Car-mel Valley Road Interchange and associated ramps are restricted by the existing highway on the west and the Carmel Ran-cho Shopping Center on the East. The portion of the Hatton Canyon drainage (and associated riparian wetland) would be covered by the fill required for the interchange and ramps. At the Carmel River, the bridge on the new alignment has been designed with a minimum of disturbance to the existing river levees. The bridge will also be designed with the maximum possible span to minimize the number of pilings required in the Carmel River. No further design variations are available to further reduce wetland impacts at the Carmel River. A Wetlands Only Practicable Alternative Finding has been prepared for Alternative 1C Modified (See Exhibit K). Exhibit N to this document is a letter from the FWS dated October 30, 1989 which approves the Mitigation Plan in concept as adequate to replace the lost habitat but points out that “formal approval must wait until a detailed plan is completed.” Noteworthy in this letter is a suggestion for a contingency plan, a suggestion which was later adopted in the Mitigation Plan itself. A number of important things literally leap off the pages of the Final EIS/R. First, the impact on the wetlands is adequately stated. Second, anyone interested in the project and intending to comment was surely informed as to all of its environmental consequences. Third, the document is extraordinarily sensitive to the wetlands, providing for a 1:1 replacement ratio including using insect-free cuttings. Fourth, the plan is absolutely flexible and proposes to respond to any changes or unseen contingencies. Fifth, the wetlands impact is plainly measured against all the alternatives, and a reasoned judgment rendered in the required finding of “Only Practicable Alternative,” appearing as Exhibit K. In essence, it was the informed judgment of the decisionmakers that the other alternatives simply do not deliver the transportation goals of the project, and that “there are no practicable design variations of Alternative 1C that would reduce or avoid wetland impacts.” Accordingly, I find no merit in appellants’ claims that there is currently more wetland acreage in the affected area because of the Loma Prieta earthquake than was considered in the process. The Mitigation Plan’s admirable commitment to a 1:1 restoration ratio in concert with the contingency provisions and management program are more than adequate to take care of any changing conditions. The Mitigation Plan “ensures that important effects will not be overlooked or under-estimated only to be discovered after recourses have been committed or the die otherwise cast.” Methow Valley Citizens, 490 U.S. at 349, 109 S.Ct. at 1845. This is also true of appellants’ claim that the information regarding the wetlands is now stale. Because the Mitigation Plan is conceptual, flexible, and contingent, it will necessarily and properly deal with evolving conditions. Appellants complain that the plan is not specific enough, but its genius is that it is responsive and flexible. Moreover, the permit process will iron out any wrinkles it may have. In any event, the process certainly satisfies Methow Valley Citizens’ requirement that mitigation concerns be presented in sufficient detail to address and to evaluate the environmental consequences of a project. Again, one cannot help but glean from appellants’ arguments that the core of their disagreement with this project, as I mentioned earlier, is the final determination of the decisionmakers to build this freeway, and that the appellants’ alleged procedural complaints when closely scrutinized turn out to be simply sheep in wolves’ clothing. hi CUMULATIVE IMPACTS The district court’s Order gives us a significant key to deciding whether the cumulative impacts of this project have been considered as required by law. The district court said, (1) “Plaintiffs have failed to identify any other actions that might have an impact on the Monterey pine forest affected by this project”; and (2) “Plaintiffs have not identified any other actions which might have an impact on wetlands. Absent such actions, the EIS need not discuss cumulative impacts.” Accordingly, with the burden on the plaintiffs to show a violation of NEPA in this regard, summary judgment was proper given no showing of specific cumulative impacts on either the pine forest or the wetlands. Nevertheless, the final EIS/R did adequately discuss cumulative impacts regarding the pine forest, stating that The native Monterey pine forest in Hatton Canyon is part of the largest of the three remaining native Monterey pine populations in California. The Monterey population is rapidly being reduced in size and integrity by the urbanization of the area. The extensive removal of native Monterey pines without replacing them, suppression of natural fires, and the extensive use of Monterey pines of unknown genetic origin in landscaping have all contributed to the loss of the native populations. The introduction of Monterey pines of unknown genetic origin has the potential of producing mixed populations that are more vulnerable to insect attacks, disease and environmental stress than are the native populations. The special circumstances surrounding the remaining native stands of Monterey pine has led to their placement on the California Native Plant Society’s Inventory of Rare and Endangered Vascular plant (1988) as a species of limited distribution. The impact on the native Monterey pine forest is considered significant. SAR 25:7789 (FEIS IV:30). Moreover, other parts of the Final EIS/R also discuss this subject, notably in Chapter VI which is entitled, “Environmental Consequences, Cumulative Impacts.” In this separate chapter, the document takes note of the combined adverse environmental impacts of this project with the “ongoing urbanization of the Carmel area.” The document says, These adverse cumulative impacts are the result of the combined impacts of many types of activities and are not solely attributable to the proposed project alternative. Both non-transportation and transportation related projects must be taken into account when evaluating the cumulative impacts to resources. Examples of non-transportation impacts include those generated by major residential and commercial development and land use changes. As discussed previously (Growth Inducement Analysis) other development projects in the Carmel area are expected regardless of whether or not one of the proposed project alternatives is implemented. Should one of the alternatives not be implemented there would be no noticeable reduction or avoidance of cumulative adverse impacts. This is due to the relatively small contribution of the proposed project alternatives to the cumulative adverse impact on the area resources. In fact, each of the project alternatives would result in some improvement in traffic conditions (emphasis added). The summary of this chapter is as follows: As discussed earlier, measurable project impacts on sensitive resources such as water quality, floodplains, natural vegetation, and endangered species habitat could have the potential for adding, to some degree, to the overall cumulative impacts on that resource. However, mitigation developed for the individual resource impacts, as discussed in the Environmental Consequences section of this document, will even further reduce the project’s potential contribution to those cumulative impacts. Finally, the majority bases its remand in part on the absence in the excerpt of record of the Carmel Valley Master Plan EIR which is explicitly incorporated by reference in and thus is part of the Final EIS/R’s chapter on cumulative impacts. What the majority seems to have overlooked is the fact that the district court formally took judicial notice of this and other relevant Plans on pages 6-9 of its Order dated 5/12/94. Thus, if we are concerned about the precise content of the Carmel Valley Master Plan and its Cumulative Impact Section (I am not), the remedy is not to remand but to ask the parties to supply us with the judicially-noticed documents which are already part of the record. In summary, I conclude that the Final EIS/R’s discussion of cumulative impacts was not defective. CONCLUSION Any person even remotely familiar with the environmental havoc existing in industrial countries without environmental protection laws must fully support our nation’s laudable efforts to preserve for ourselves and our children the outdoor wonders of the great country in which we live. But, too much of anything can be trouble, and one can only wonder if this case and the tortured history of this traffic amelioration proposal suggest that too much process now renders any controversial project too difficult and costly to accomplish, regardless of its merit. After all, it is highly probable that a sizeable majority of those persons who almost 50 years ago in 1947 identified this traffic problem are no longer with us. Homer, if writing The Odyssey today, might well substitute for the King of Corinth’s boulder and hill the daunting task of pushing this traffic congestion initiative to completion. Thus, I concur in all aspects of Judge Beezer’s excellent majority opinion except for one. I do not see the need to remand this matter for further consideration. I would affirm the district court on everything.

National Wildlife Federation v. Whistler

JOHN R. GIBSON, Senior Circuit Judge. The Turnbow Development Corporation sought permission from the United States Corps of Engineers to make several changes necessary to provide water access to a planned residential development. The Corps issued the permit pursuant to section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403 (1988), and section 404(b) of the Clean Water Act, 33 U.S.C. § 1344(b) (1988), but conditioned it on forty-two conditions, including the required enhancement of a twenty-acre mitigation area. The National Wildlife Federation and Michael Donahue, a Federation member and an owner of property adjacent to the mitigation area, brought this action before the district court seeking to suspend the permit. The district court denied the requested relief and granted summary judgment for the defendants. Donahue appeals from the district court’s judgment. We affirm. The planned housing development is located just south of Bismarck, North Dakota, on uplands on the east side of the Missouri River. The requested permit would allow Turnbow to provide these lots with boat access to the Missouri River by re-opening an old river channel adjacent to the planned development, thereby destroying the channel’s existing wetlands status. The proposed project would remove an earthen roadway, dredge and widen the old river channel, widen the connection of the old channel to the Missouri River, and replace 200 feet of bank stabilization on the Missouri River. In total, approximately 14.5 acres of wetlands would be converted to deep water habitat. As required by 33 C.F.R. § 325.2-.3, the Corps gave public notice of the application and solicited comments from several state and federal agencies. These agencies suggested that the Corps condition the permit on a mitigation plan to offset the loss of wetlands, but lodged no further objections. Turnbow responded with a plan to enhance an existing twenty-acre wetlands area by providing it with year-round water and saturated soil conditions. After additional public notice and comment, the Corps issued an environmental assessment and decision document containing the agency’s determination that the permit should be issued. The Corps concluded that the project’s purpose was to provide boat access to the Missouri River from Tumbow’s planned development. Given this purpose, the Corps considered the project water-dependent and site-specific. No other alternative, the Corps stated, would serve Turnbow’s purpose. “A boat access area located elsewhere,” the agency reasoned, “would not be functional for the applicant’s needs.” The Corps concluded that the permit did not conflict with the public interest and satisfied the Clean Water Act section 404(b)(1) guidelines. The agency further found that the project involved no significant impact on the quality of the human environment, and therefore did not require an environmental impact statement under the National Environmental Policy Act, 42 U.S.C. § 432H370a (1988). The agency issued the permit subject to forty-two conditions, including the requirement that Turnbow complete the enhancements to the mitigation area prior to any construction on the wetlands. Donahue and the Federation sought a temporary restraining order and preliminary injunction to suspend the permit. The court denied the request for a temporary order and, after a two-day evidentiary hearing on the preliminary injunction issue, granted the Corps’ motion for summary judgment. The court determined that “the Corps did not act in an arbitrary and capricious manner in processing and issuing the permit involved here.” National Wildlife Fed’n v. Whistler, No. A1-92-194, slip op. at 5 (D.N.D. Jan. 12, 1993). The court also stated that “no other properties are available to Turnbow which are suitable for residential lots with boat access to the river.” Id. This appeal followed. Donahue argues on appeal that the Corps faded to perform an adequate alternatives analysis, as required by 40 C.F.R. § 230.10, before issuing the permit. In particular, Donahue argues that the Corps completely failed to consider the feasibility of a nearby public boat ramp as a means of water access to residents. The Corps responds that it properly conducted an alternatives analysis, specifically considering and rejecting three categories of response: (1) no action, (2) reduction of the scope of dredging, and (3) use of other sites. Section 404 of the Clean Water Act authorizes the Secretary of the Army, acting through the Corps, to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a), (d). “The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” 33 C.F.R. § 320.4(a). The regulations specifically identify wetlands as worthy of protection. See 33 C.F.R. § 320.4(b) (wetlands are a “productive and valuable public resource”). The statute and regulations express a strong preference for wetland protection. “It would hardly be putting the case too strongly to say that the Clean Water Act and the applicable regulations do not contemplate that wetlands will be destroyed simply because it is more convenient than not to do so.” Buttrey v. United States, 690 F.2d 1170, 1180 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983). Thus, where “there is a practicable alternative ... which would have less adverse impact on the aquatic ecosystem,” the Corps cannot issue a dredge or fill permit. 40 C.F.R. § 230.10(a) (1993) (emphasis added). Moreover, if a dredge or fill permit application does not concern a water-dependent project, the Corps assumes that practicable alternatives exist unless the applicant “clearly demonstrated otherwise.” 40 C.F.R. § 230.10(a)(3). This presumption of practicable alternatives “is very strong,” Buttrey, 690 F.2d at 1180 (emphasis in original), “creat[ing] an incentive for developers to avoid choosing wetlands when they could choose an alternative upland site,” Bersani v. Robichaud, 850 F.2d 36, 44 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1556, 103 L.Ed.2d 859 (1989). Despite these protections, Donahue faces an uphill road. When the Corps has followed the proper procedure, as here, a court may reverse only if the Corps’ decision to issue the permit was an abuse of discretion, contrary to law, or arbitrary and capricious. 5 U.S.C. § 706(2)(A) (1988). Under this standard, a reviewing 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.” 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) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). As long as the agency provides a rational explanation for its decision, a reviewing court cannot disturb it. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). This narrow standard of review reflects the deference given to agencies’ expertise within their respective fields. State Farm, 463 U.S. at 42-43, 103 S.Ct. at 2866-67. Moreover, substantial deference is given to an agency’s interpretation and application of governing statutes, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984), and particularly its own regulations, Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980). Donahue argues that the Corps failed to even consider the availability of a local public boat ramp as an adequate alternative to Turnbow’s proposal. The Corps explicitly acknowledged the existence of the boat ramp in its decision document, concluding that this access area was not “functional for the applicant’s needs.” In light of the Corps’ determination of the project’s purpose, the boat dock was, at best, an alternative. Our review of the record convinces us that the Corps considered the boat dock, but dismissed it as inadequate. Donahue also argues that to the extent that the Corps did conduct an alternatives analysis, it reached an arbitrary and capricious result. Central to evaluating practicable alternatives is the determination of a project’s purpose. Donahue suggests that the project’s purpose is to build a residential or “high-end” residential development. See Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989) (Sylvester II) (“an alternative site does not have to accommodate components of a project that are merely incidental to the applicant’s basic purpose”) (emphasis in original). Donahue relies on decisions by other courts that have rejected attempts by developers to build housing developments and adjacent boat docks on wetlands. In Shoreline Associates v. Marsh, 555 F.Supp. 169 (D.Md.1983), aff'd, 725 F.2d 677 (4th Cir.1984), for example, the court rejected one such attempt, stating that the “primary aspect of the proposed project is the construction of a townhouse community, not the construction of a boat storage facility and launch, which are incidental to it.” Id. at 179. Similarly, in Korteweg v. Corps of Engineers of the United States Army, 650 F.Supp. 603, 606 (D.Conn.1986), the court also upheld the denial of a permit for a riverside residential development. Although “the ability to tie one’s boat at an adjacent dock would make the [lots] more valuable ..., the docks are neither essential to the [lots] nor are they integral to their residential use.” Id. at 605. Thus, each of these courts concluded that the housing project was not water-dependent and applied the regulatory presumption that practicable alternatives exist. Id. at 604; Shoreline, 555 F.Supp. at 179. The Corps, however, began its analysis of Turnbow’s application by stating that the planned housing development site was located on uplands and therefore could proceed without a permit. The Corps limited its alternatives analysis to the boat access area. This exclusion of the residential portion of the project led the Corps to conclude that the “project’s purpose is to provide boat access to the Missouri River from lots Mr. Turnbow proposes to develop adjacent to the project area.” The Corps did not consider the uplands housing development to be part of the project for which Turnbow requested a permit. The project, so defined, is clearly water-dependent. Moreover, insofar as the project contemplated immediate boat access to Tumbow’s residential development, it was also site-specific. Turnbow’s locating of the planned residential buildings on the surrounding uplands distinguishes this case from both Shoreline and Korteweg, where the developers sought to build their planned residential buildings on the wetlands. Korteweg, 650 F.Supp. at 604; Shoreline, 555 F.Supp. at 171, 179 n. 40. In those cases, the developers could have presumably relocated the entire developments to other locations. Here, the Corps found that Turnbow’s development would proceed on the uplands residences even if the Corps denied the permit. The Corps argues that Sylvester v. United States Army Corps of Engineers, 884 F.2d 394 (9th Cir.1989) (Sylvester III), is more on point. In Sylvester III, the Ninth Circuit reviewed the Corps’ grant of a permit to fill eleven acres of wetlands as part of a golf course which itself was part of a larger planned resort. Id. at 396. In assessing the proper scope of the environmental impact under the National Environmental Policy Act, 42 U.S.C. § 4332(2)(c) (1982), the Corps limited its analysis to only the golf course, not the entire resort. Id. at 396. The court upheld the agency’s decision, reasoning that it did “not understand how [the developer’s] desire to place the course in a meadow that contains wetlands can federalize the entire resort complex.” Id. at 401; see Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 272-73 (8th Cir.) (limiting scope of NEPA analysis to 1.25 mile segment within Corp’s jurisdiction, not entire 67-mile transmission line), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). As recognized by the Ninth Circuit, however, the “relationship required to be considered in determining reasonable and practicable alternatives need not be of such significance as would be necessary to ‘federalize’ the entire project [for NEPA purposes].” Sylvester II, 882 F.2d at 410. Donahue argues that the Corps mistakenly defined the purpose of Turnbow’s project. Nonetheless, this court cannot ignore the Corps’ interpretation of the Clean Water Act and its accompanying regulations. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83; Ford Motor Credit, 444 U.S. at 566, 100 S.Ct. at 797. The Corps found that the project, as modified to include the mitigation site, resulted in little or no net loss to the nation’s wetlands. Moreover, the Corps found that Turnbow’s uplands housing development would proceed even without the creation of water access. Donahue does not specifically contest either of these findings, and we cannot conclude that they are arbitrary and capricious. In light of these findings, and after conducting a thorough review, the Corps accepted Turnbow’s characterization of the overall project as encompassing two severable projects, a conclusion that is not without support. See Louisiana Wildlife Fed’n., Inc. v. York, 603 F.Supp. 518, 528 (W.D.La.1984), aff'd in part and vacated in part, 761 F.2d 1044 (5th Cir.1985) (Corps “must take into account the objectives of the applicant’s project”). “Obviously, an applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable.” Sylvester II, 882 F.2d at 409. The cumulative destruction of our nation’s wetlands that would result if developers were permitted to artificially constrain the Corps’ alternatives analysis by defining the projects’ purpose in an overly narrow manner would frustrate the statute and its accompanying regulatory scheme. We do not believe the case before us raises these concerns. Moreover, our standard of review is a limited one. See 5 U.S.C. § 706(2)(a). We conclude that neither the Corps’ project definition nor its decision that no practicable alternatives existed was arbitrary and capricious. Accordingly, we affirm. . The Honorable Patrick A. Conmy, United States District Judge for the District of North Dakota. . The National Wildlife Federation does not appeal from the district court's judgment. . As defined by regulation: The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 33 C.F.R. § 328.3(b) (1993) (emphasis in original). . We need not consider whether the Corps could reach the same result when a developer's interest in an overall residential development hinged on the development of the wetlands portion. See Korteweg, 650 F.Supp. at 604; Shoreline, 555 F.Supp. at 179. Nor need we analyze the degree to which the availability of "practicable altema-tives" depends on the particular harm a project poses to the wetlands. These issues await another day.

United States v. Akers

EUGENE A. WRIGHT, Circuit Judge: This litigation is the unfortunate result of a standoff between a California farmer who seeks to farm his wetlands more productively and the Army Corps of Engineers which regulates wetland use under the Clean Water Act (“Act”), 33 U.S.C. §§ 1251-1376 (1982 & Supp. I 1984). The Corps succeeded in enjoining dredge and fill activities for which a permit had not been sought. We are asked to construe the Act’s exemptions and review the scope of the preliminary injunction awarded to the government. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm. BACKGROUND In January 1984, Robert W. Akers purchased approximately 9,600 acres in Lassen and Modoc counties, near Bieber, California. The property includes 2,889 acres of wetlands, known locally as the “Big Swamp.” Ash Creek, a tributary to the Pit River, flows across the property. The Pit River, Ash Creek, and their channels and adjacent wetlands are subject to the Corps’s jurisdiction under Section 404 of the Act, 33 U.S.C. § 1344 (1982). Big Swamp is an important wildlife habitat. It provides seasonal refuge for numerous species, including the bald eagle and peregrine falcon, both endangered species, the greater sandhill crane, listed as rare by California authorities, and the cackling Canada goose, whose numbers have decreased sharply in recent years. Less threatened species, including Canada geese, snow geese, and mallard, pintail, shoveler and cinnamon teal ducks, also inhabit the area. The following chronology summarizes Akers’ battle with the Corps over Big Swamp farming: March 1984 Corps learned of Akers’ “farming plan” to carry out extensive grading, leveling, drainage and water diversion to convert the wetlands to farm land suitable for growing upland crops. After a preliminary investigation, the Corps determined that its jurisdiction extended to roughly one-third of Akers’ property and that a Section 404 permit would be required. May 4 Akers sued the government for declaratory and injunctive relief under the Act alleging that the Corps’s assertion of regulatory jurisdiction was improper and illegal. TRO issued enjoining Corps from asserting regulatory jurisdiction over Akers until hearing on motion for preliminary injunction. The order also enjoined Akers from construction activities. May 15 Akers’ motion for preliminary injunction was denied. July 16 Akers voluntarily dismissed his lawsuit. He began the first of three phases of earthmoving activity. Along the western border of his property, he built a dike 3,500 feet long, two to three feet high and six feet wide. He first told the Corps he was ditch cleaning, but later said he was repairing a pre-existing temporary irrigation structure. Late July or early Corps determined that August Akers needed a permit and issued a cease and desist order. By that time, the project was finished. August 13 Corps withdrew cease and desist order based on assurances that the dike would be used only for the purposes that the previous structure had served (although new dike was longer and in a different location). August 30 Akers was informed by the Corps’s District Engineer (“DE”) that 2889 acres of his farm contained wetlands within the Corps’s jurisdiction. September 2 Corps learned of work in central portion of wetlands. September 13 Corps’s aerial survey revealed two-mile long dike had been constructed east-to-west through the wetlands. On the west end, the dike connected perpendicularly to the other recently-constructed dike on the western property line. A grader and tractor (pulling discs) were seen along the dike. Some wetlands south of the dike had been leveled. Corps issued a cease and desist order. September 17 Fly-over showed that sometime after September 13, the dike had been lengthened from two to three miles. September 26 Fly-over revealed large north-south ditch on the eastern edge of the property, possibly 50 feet wide. While the ditch was mostly on non-wetlands, it filled two natural channels of Ash Creek. Corps also observed roads being constructed in the northwest section of the property. These roads blocked several overflow channels of the Pit River. October 3 The U.S. sued Akers seeking declaratory and injunctive relief, civil penalties and restoration. October 5 District court granted TRO forbidding Akers from depositing dredged or fill material in waters on his property, except in certain channels with Corps’s permission. October 24 Court orally granted government’s motion for preliminary injunction. October 31 Written TRO entered. January 14,1985 Oral argument on motions for reconsideration and intervention of the California Cattlemen’s Association, Agricultural Council of California, National Cattlemen’s Association, and California Farm Bureau (“Cattlemen”) on behalf of Akers and the National Audubon Society and National Wildlife Federation (“Audubon”) on behalf of the government. January 15 Court issued written' findings of fact, conclusions of law and order reconfirming the earlier oral preliminary injunction. The order prohibited Akers from depositing dredged or fill material into the waters, channels or wetlands previously delineated by the Corps unless he: (1) obtains a permit from the Corps, or (2) submits a proposal for dredge or fill activities, which he asserts are not within the Corps’s jurisdiction, and (a) is informed in writing by the DE that a permit is not necessary; or (b) is not informed in writing by the DE whether a permit is necessary within 15 days of receipt of his proposal. The court also ordered that Akers must comply in good faith with Corps cease and desist orders regarding dredge and fill activities on his property. January 31 Court granted permissive intervention of the Cattlemen and Audubon groups. This appeal followed. Akers has not applied for a § 404 permit from the Corps. STANDARD OF REVIEW A preliminary injunction will be reversed “only if the lower court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact.” Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984). The injunction will be upheld if the court correctly found that the government demonstrated either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of the hardships tips sharply in its favor. Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 470 (9th Cir.1984). These are not separate tests, but rather, “extremes of a single continuum.” Benda v. Grand Lodge of the International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). STATUTORY FRAMEWORK The Act aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1982). “This purpose is to be achieved by compliance with the Act, including compliance with the permit requirements.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 315, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982) (footnote omitted). The Act prohibits the discharge of dredged or fill materials into “navigable waters” — defined as “waters of the United States” — unless authorized by a permit issued by the Corps pursuant to § 404. See generally 33 U.S.C. §§ 1311, 1344 (1982). “Waters of the United States” is broken down into seven categories, including wetlands. See 33 C.F.R. § 323.2(a) (1985). Recently, a unanimous Supreme Court upheld the Corps’s wetlands definition in United States v. Riverside Bayview Homes, Inc., — U.S.-, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The lands in question are wetlands under the Corps’s definition; hence, the Corps had authority, absent an applicable exception, to require Akers to obtain a permit before engaging in dredge and fill activities. Limited exemptions from the permit requirement are found in Section 1344(f), which provides in pertinent part: (f) Non-prohibited discharge of dredged or fill material (1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material— (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices; * # * * * * (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; (E) for the purpose of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized; is not prohibited by or otherwise subject to regulation under this section____ (2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Akers’ activities must be analyzed in light of the Act’s purposes and the intended scope of its exemptions. The Fifth and Seventh Circuits have construed the § 1344(f)(1) exemptions narrowly. See United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir.1983). This construction is consistent with the legislative history. Senator Muskie described the exemptions during Senate debate: New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. 3 Legislative History of the Clean Water Act of 1977 (“Leg.Hist.”) at 474 (Senate Debate, Dec. 15,1977). As the legislation’s primary sponsor, his remarks are entitled to substantial weight. See Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976); Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1243 & n. 48 (D.C.Cir.1980). To be exempt from the permit requirements, one must demonstrate that proposed activities both satisfy the requirements of § (f)(1) and avoid the exception to the exemptions (referred to as the “recapture” provision) of § (f)(2). See Avoyelles, 715 F.2d at 926 ((f)(2) takes away some of the exemptions provided in (f)(1)). Akers must establish that his activities are exempt. ANALYSIS (1) The “Normal Farming” Exemption: § mmm) The court rejected this exemption because the wetlands portion of Akers’ farm “has never been subjected to any established upland farming operation,” relying on 33 C.F.R. § 323.4(a)(l)(ii) (1985). That regulation provides in pertinent part: To fall under this exemption, the activities ... must be part of an established (i.e., on-going) farming, silviculture, or ranching operation. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities which bring an area into farming, silviculture, or ranching use are not part of an established operation. An operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations____ Akers bases his entitlement to the exemption on the fact that all of his land, including the wetlands, has been farmed since 1897. He contends that discing and seeding have been part of the farming operation traditionally undertaken on his land. He ignores the consequences of the new projects, however. We cannot view Akers’ plowing, discing and seeding in isolation. The record amply supports the court’s finding that upland crop production has not occurred on these wetlands on a regular basis. Upland farming represents a new operation in the wetlands. Moreover, Akers argued below that unless he were allowed to complete the work he had started, the effect of which is to drain the wetlands, he would be unable to engage in the farming activities he had planned. By his own admission, his activities require substantial hydrological alteration to Big Swamp, and run afoul of the regulations. At oral argument, counsel for the government advocated a position of complete authority to prohibit all changes in wetland use which involve discharges of pollutants- without prior Corps approval. Discing of soil is a point source of pollutants, according to the Corps. Responding to our inquiries, government counsel asserted that the Corps would require Akers, and other farmers like him, to obtain a § 404 permit before switching from one type of wetland crop to another, if the new crop had not been farmed previously. For example, if Akers desired to plant wild rice, a wetland crop, the Corps would require a permit since rice has not been farmed in Big Swamp in the past. Although we affirm the injunction as a reasonable response to the peculiar facts before us, we do not endorse the government’s authoritative position. We do not believe that Congress intended to place the burden of Corps permit regulation on farmers who desire merely to change from one wetland crop to another. (2) The “Irrigation” Exemption: § mmixc) The court rejected Akers’ attempt to characterize the three-mile long dike bisecting the wetlands as an exempt irrigation facility. He argues that non-exempt dikes hold water on their lowland sides while exempt structures, such as his dike, hold water on their upland sides. It is irrelevant how he characterizes the dike. Provided the structure has the effect of keeping water from the southern wetlands, its construction requires a permit. See Huebner, 752 F.2d at 1242. The regulation defining “minor drainage,” as that term is used in the “normal farming” exemption, supports the government’s position: Minor drainage in waters of the U.S. is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland (e.g., wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to farming). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting waters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. 33 C.F.R. § 323.4(a)(l)(iii)(C)(2) (1985). Akers also argues that the dike is physically connected and functionally related to an irrigation ditch and, therefore, is exempt under 33 C.F.R. § 323.4(a)(3) (1985): Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption. The court concluded that the dike was not one of the types of structures specified in the regulation and was not subsidiary to an irrigation ditch. Akers has not demonstrated that these factual findings are clearly erroneous. (3) The State Water Rights Proviso: 33 U.S.C. § 1251(g) Akers asserts that the court construed 33 U.S.C. § 1251(g) (1982) (also known as the “Wallop Amendment”) too narrowly by rendering his state-allocated water rights “virtually meaningless.” He urges us to apply the irrigation exemption “so as to not impair or abrogate state allocated water rights.” Section 1251(g) provides: It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. Akers attacks the “ambiguous” references to legislative history relied on by the district court when it refused to apply § 1251(g). Senator Wallop, who sponsored the amendment, described its purpose during Senate debate: The requirements of section 402 and 404 permits may incidentally affect individual water rights____ It is not the purpose of this amendment to prohibit those incidental effects. It is the purpose of this amendment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations. This amendment is an attempt to recognize the historic allocation rights contained in State constitutions. It is designed to protect historic rights from mischievous abrogation by those who would use an act, designed solely to protect water quality and wetlands, for other purposes. It does not interfere with the legitimate purposes for which the act was designed. 3 Leg.Hist. 532 (Senate Debate, Dec. 15, 1977). As intervenor Audubon points out, any incidental effect on Akers’ rights to state-allocated water from the Pit River is justified because protection of Big Swamp is the type of legitimate purpose for which the Act was intended. In Riverside Irrigation District v. Andrews, 758 F.2d 508, 513 (10th Cir.1985), the Tenth Circuit construed the Wallop Amendment as an indication ‘that Congress did not want to interfere any more than necessary with state water management.’ National Wildlife Federation v. Gorsuch, 693 F.2d 156, 178 (D.C.Cir.1982). A fair reading of the statute as a whole makes clear that, where both the state’s interest in allocating water and the federal government’s interest in protecting the environment are implicated, Congress intended an accommodation. Such accommodations are best reached in the individual permit process. Akers staunchly has resisted the permit process. The injunction properly compels him to participate in it. (4) The “Roadbuilding’’ Exemption: § íswmm Akers disagrees with the court’s findings that he constructed a road across overflow channels of the Pit River and failed to comply with best management practices. Rather than challenging these findings as clearly erroneous, he asserts that the injunction is overbroad. He contends that instead of enjoining all road-building, the appropriate remedy “was simply to notify him as to what actions were necessary to bring the road into conformity with best management practices, and require compliance therewith in future activities.” We disagree. The roadbuilding regulations set forth in 33 C.F.R. § 323.4(a)(6) (1985) describe with sufficient clarity what Akers had to do to comply with § 1344(f)(1)(E). As explained in the overbreadth section below, the court properly considered Akers’ misunderstanding and disregard of the Act in fashioning appropriate relief. (5) The “Recapture” Provision: § 13U(f)(2) Judge Ramirez concluded that Akers was unlikely to avoid the recapture provision even if he established an applicable exemption. Over Akers’ argument that upland crops could have been grown in the wetlands, the court wrote: The proper inquiry is not what could have been done but what was done in the past and its relationship to what Mr. Akers is attempting to do now. Furthermore, Mr. Aker’s [sic] argument ignores the question of whether there will be a change in Big Swamp from wetlands (i.e., waters of the United States) to dry land (no longer waters of the United States). Whether or not there have been isolated incidents of attempted farming of upland crops in the swamp during dryer periods, there is little doubt that the area is still a wetland within the meaning of the Clean Water Act. Mr. Akers’ activities taken as a whole appear to this Court to be incidental to an effort to convert the area so that it may be farmed in a way which is inconsistent with its remaining a wetland. United States v. Akers, No. CIV-84-1276 RAR, Conclusion of Law XIV (E.D.Cal. Jan. 15, 1985). The court did not abuse its discretion in reaching this conclusion. Additionally, Akers asserts that “use” denotes a major type of use, e.g., farming, silviculture or ranching. Because the land has been used for farming since 1897, he claims there is no major change of use within the meaning of § (f)(2). He attempts to distinguish Huebner and Avoyelles, where the recapture provision was applied. He asserts that those cases involved major changes to agricultural use, whereas his actions represent “a change within the farming use.” However, he cannot escape the impact of these opinions, which classify as non-exempt those activities which change a wetland’s hydrological regime. See Huebner, 752 F.2d at 1242; Avoyelles, 715 F.2d at 926. While the exemptions and regulations do not distinguish major and minor changes, the intent of Congress in enacting the Act was to prevent conversion of wetlands to dry lands. For example, Representative Harsha, a member of the conference committee, stated during House debate: To assure that the extent of these exempted activities will not be misconstrued, ... (f)(2) provide[s] common sense limitations to protect the chemical, biological, and physical integrity of the Nation’s waters. While it is understood that some of these activities may necessarily result in incidental filling and insignificant harm to aquatic resources, the exemptions do not apply to discharges that convert more extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. 3 Leg.Hist. 420 (House Debate, Dec. 15, 1977). It is thus the substantiality of the impact on the wetland that must be considered in evaluating the reach of § (f)(2). Cf. Huebner, 752 F.2d at 1242 (district court properly considered results of dredging as it affected surrounding wetlands). The court’s findings on wetland conversion, not clearly erroneous, establish: It appears likely that if this work is allowed to remain in place, or allowed to be expanded, an extensive area of the Big Swamp wetlands will be converted to non-wetland, thereby significantly reducing the reach of Big Swamp. In addition, the flow and circulation in Ash Creek and the overflow channels of the Pit River may be impaired. Furthermore, many highly significant aquatic functions now performed by the Big Swamp wetlands area will be lost or impaired. United States v. Akers, Finding of Fact X. Giving the recapture provision the appropriate common sense reading, it appears that Akers’ activities are not exempt from permit requirements due to the likely drying effect. As discussed earlier, this is not to say that he could not change from one wetland crop to another without running afoul of the recapture provision. (6) Is the Injunction Overbroad? Finally, he argues that the injunction is overbroad because it requires Corps approval for all his dredge and fill activities, including those clearly exempt. The government responds by stating that the conditions are necessary to preserve the status quo. The government stresses the non-onerous nature of this injunction, considering the requirement that the Corps respond to a permit application within 15 days. The district court has considerable discretion to fashion appropriate injunctive relief, particularly where the public interest is involved. See Virginian Railway Co. v. System Federation No. 40, etc., 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937); State of California v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir.) (district court has greater power to fashion equitable relief in defense of the public interest than it has when only private interests are involved), amended, 775 F.2d 998 (9th Cir.1985). The Supreme Court has recognized that the Act gives the district court discretion “to order that relief it considers necessary to secure prompt compliance with the Act.” Weinberger v. Romero-Barcelo, 456 U.S. at 320, 102 S.Ct. at 1807. In enjoining the filling of wetlands without a permit, courts have noted that the public interest requires strict enforcement of the Act to effectuate its purpose of protecting sensitive aquatic environments. See United States v. Ciampitti, 583 F.Supp. 483, 499 (D.N.J.1984); United States v. Lofgren, 13 Envtl.L.Rep. (Envtl.L.Inst.) 20,164 at 20,166 (E.D.Mich.1982) (presumption in favor of preliminary injunction in light of Act’s objectives which include maintaining Corps’s regulatory scheme) (discussed in W. Want, Federal Wetlands Law: The Cases and the Problems, 8 Harv.Envtl.L.Rev. 1, 52 (1984)). Judge Ramirez did not abuse his discretion in issuing this injunction. He considered extensive testimony regarding past and present uses of Big Swamp, ecological disruption caused by the ongoing and proposed activities, Akers’ avoidance of the Corps’s permit process, harm incurred by Akers, and the legislative history of the exemptions. The findings and conclusions supporting the injunction are comprehensive and reflect a well-balanced consideration of the competing interests. CONCLUSION Akers has failed to demonstrate that the injunction was based on erroneous legal standards or clearly erroneous findings of fact. Nor does he demonstrate that Judge Ramirez abused his discretion. We are mindful of the plight of today’s farmers. So was Congress when it enacted the wetlands legislation at issue here. It did not intend to prohibit all changes of wetlands, however minor, without prior Corps approval. The changes proposed by Akers are far from minor, however. They contemplate a major conversion from wetlands to dry lands, thereby necessitating a Corps permit. Judicial review of Corps permit approval or denial provides the necessary check against arbitrary government action. We assume that the Corps will not act arbitrarily when it rules on Akers’ future permit applications. This litigation resulted from an inability to work cooperatively. Both parties bear some fault for the breakdown in communications. Reasonableness and cooperation are indicated. The preliminary injunction is AFFIRMED. . Akers concedes, for purposes of this case, that portions of his property are “wetlands” under the Corps’s expansive definition, 33 C.F.R. § 323.2(c) (1985). His principal contention, however, is that his activities are exempt, . Under the Corps’s definition, "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 33 C.F.R. § 323.2(c) (1985). While the Court construed the 1977 definition, it noted that the 1982 definition, quoted above, is "substantively identical." United States v. Riverside Bayview Homes, Inc., — U.S.-, 106 S.Ct. 455, 458, 88 L.Ed.2d 419 (1985). . Akers also contends that the court ignored the fact that flood flows caused a breach in the dike and that he intended to place culverts in it. The court rejected these developments as irrelevant. It properly focused on the probable consequences of what had been completed to the time of the hearing on the motion for preliminary injunction. . Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 646-47 (5th Cir.1983), relied on by appellant, is distinguishable because no change in wetland hydrological regime was proposed. "The wetlands involved here will not be converted as in Avoyelles," wrote that court. Id. at 647. . Intervenor Audubon’s request for attorney’s fees on appeal is denied. Counsel has not identified any basis for such an award, and we find none. The motion for intervention pursuant to 33 U.S.C. § 1365, where fees are provided, was denied. Instead, Judge Ramirez granted permissive intervention under Fed.R.Civ.P. 24(b).

Conant v. United States

PER CURIAM: In June 1981, the United States Army Corps of Engineers (Corps) issued a cease and desist order to plaintiff Marcus Conant, ordering him to halt placing dredge and fill material into the wetlands of the Santa Fe River. Conant filed this civil suit seeking, among other things, an injunction against enforcement of the cease and desist order. Following an evidentiary hearing, the district court entered judgment against Conant. Because the district court did not err in concluding that Conant was required by the Clean Water Act (Act) to obtain a permit before discharging dredge or fill materials into navigable waters, that the wetlands in question were “navigable waters” as defined in the Act and federal regulations, and that none of the exceptions to the permit requirements apply in this case, we affirm. The order in question applies to only one of the nine fish ponds which Conant began to construct on his land in Alachua County, Florida, in 1980. The Corps determined that the northern end of the pond lies in a wetlands area of the Santa Fe River. The vegetation in this area included bald cypress, a species indigenous to wetlands. Plaintiff places undue reliance on the phrase “navigable water,” in section 404 of the Clean Water Act of 1977, 33 U.S.C.A. § 1344, without examining its definition in the federal regulations. The Act itself defines “navigable waters” as “the waters of the United States.” “[T]he Act’s definition of ‘navigable waters’ as ‘the waters of the United States’ makes it clear that the term ‘navigable’ as used in the Act is of limited import.” United States v. Riverside Bayview Homes, Inc., — U.S. —, —, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985). Although wetlands are not specifically mentioned in the Act itself, under the authority of the Act, the Corps has promulgated regulations defining “waters of the United States” to include wetlands adjacent to tributaries to navigable waters. 33 C.F.R. § 323.2(a)(3) (1985). “Wetlands” means “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 323.2(c) (1985). “Wetlands generally include swamps, marshes, bogs and similar areas.” Id. “Adjacent” means “bordering, contiguous, or neighboring.” 33 C.F.R. § 323.2(d) (1985). The uncontradicted testimony before the district court indicated that the area in question was an “adjacent wetland.” The district court’s finding to this effect was not clearly erroneous. One witness noted that the wetlands area trapped undesirable pollutants and sediments before they reached the open areas of the Santa Fe River. When the United States Supreme Court recently upheld the broad scope and remedial purposes of the Clean Water Act, the Court specifically noted that one reason wetlands are protected under the Act is because they “serve to filter and purify water draining into adjacent bodies of water.” United States v. River side Bayview Homes, Inc., — U.S. at —, 106 S.Ct. at 463. The district court properly held that Mr. Conant did not qualify for any of the exceptions to the permit requirement. To fall within the exemption in 33 U.S.C.A. § 1344(f)(1)(A), the activity “must be part of an established (i.e., on-going) farming, silviculture, or ranching operation____ Activities which bring an area into farming, silviculture, or ranching use are not part of an established operation.” 33 C.F.R. § 323.4(a)(l)(ii) (1985). Because the activity here involved construction of a fish farming operation, it does not come within this exemption. Similarly, the reach of the exception in 33 U.S.C.A. § 1344(f)(1)(C) “for the purpose of construction or maintenance of farm or stock ponds” is limited by section 1344(f)(2), which provides: Any discharge of dredged or fill material into the navigable waters incidental ■to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Conant’s activity here involves a new. use which will affect the flow of circulation within the wetlands. The plain purpose of the statute and regulations is to allow people to build ponds in connection with a previously established farming operation. Although plaintiff argues that he is exempt from the requirement of a section 402 permit because the ponds produce less than 100,000 pounds of fish per year, this does not exempt him from the permit requirements of section 404 since the pond in question is located on wetlands. The district court opinion adequately points out the different purposes and enforcement procedures of sections 402 and 404. The Corps’ action in this case falls within its broad authority under the Act. AFFIRMED.

Louisiana Wildlife Federation, Inc. v. York

PER CURIAM: Six environmental organizations object to the issuance by the U.S. Army Corps of Engineers of six individual permits allowing private landowners to clear and convert to agriculture approximately 5200 acres of bottomland hardwood wetlands. They also oppose the construction of the Sicily Island Area Levee Project (the Project), a federal flood control project to abate backwater flooding in a 75,000 acre area of Catahoula Parish, Louisiana, without an additional Environmental Impact Statement (EIS) to supplement the Corps’ 1981 EIS. As to the six individual permits, we agree with the district court that the Corps properly followed both the National Environmental Policy Act (NEPA), and the Environmental Protection Agency’s regulatory guidelines in making its determination. As to the construction of the Project, however, we hold that the Corps failed to give adequate consideration to the question of whether the 1981 EIS must be revised in light of our decision in Avoyelles III. Consequently, we vacate that part of the district court’s opinion which dealt with this issue and remand to the district court for the purposes of requiring the Corps to perform an adequate analysis of whether a supplemental EIS is required. The district court opinion efficiently distilled a voluminous record and described in detail both the nature of the Sicily Island Project and the physical characteristics of the six tracts affected by the permit applications. We, therefore, do not attempt to repeat the factual background of this case. I. The six permits granted by the Corps authorize the agricultural conversion of 5200 acres of wetlands. For environmental protection purposes, such wetlands are denominated “special aquatic sites.” Both the Environmental Protection Agency’s Guidelines and the Corps of Engineers’ regulations treat all special aquatic sites as worthy of extra protection, and state as “[t]he guiding principle ... that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources.” Such heightened solicitude for wetlands is manifest in the regulations stating the considerations that must be taken into account when evaluating a proposed alteration to wetlands acreage. When a discharge of dredged or fill material is proposed, the Corps’ Guidelines prohibit issuance of a permit if there is a “practicable alternative that would have less adverse impact on the aquatic ecosystem____” A “practicable alternative,” in turn, is defined as one that is, “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” With respect to wetlands, however, the Guidelines specify: [wjhere the activity associated with a discharge which is proposed for a special aquatic site ... does not require access or proximity to or siting within the special aquatic site in question to fulfill the basic purpose (i.e. is not ‘water dependent’), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. “Thus, the guidelines couple a general presumption against all discharges into aquatic ecosystems with a specific presumption that practicable alternatives to the fill of wetlands exist.” In each of the six permit-application proceedings, the Corps characterized the applicant’s basic purpose for the project as being, “to increase soybean production or to increase net return on assets owned by the company.” It is undisputed that soybean production is a non-water dependent activity. As shown above, this fact “necessitate[s] a more persuasive showing than otherwise concerning the lack of alternatives.” The environmental protection organizations argue on appeal that the applicants failed to make the required showing, and that the Corps erroneously granted them permits by interpreting “practicable alternatives” to mean “profit-maximizing alternatives.” In addition, they contend that the Corps erred in viewing the alternatives with the applicants’ objectives in mind instead of with an eye towards environmental maintenance. Both arguments must be rejected. The first contention is simply not borne out by the record. There is nothing in the Corps’ reports to show that profit-maximization was a consideration, let alone the primary factor in the alternatives analysis. The Corps did view the economic feasibility of alternatives, a permissible criterion under both the Environmental Protection Agency’s Guidelines and the stated objectives of the permit applicants. However, in granting several of the applications, the alternative selected by the Corps did not allow the applicant to clear the entire tract (the profit-maximizing position) as it had originally requested. Instead, the Corps carefully limited the clearing allowed under the permits so as to forbid land clearance below certain elevations, require maintenance of uncleared buffer zones on each side of streams traversing the tracts, require turnrows to be seeded and maintained in suitable grass, and mandate the application of the Best Management Practices required by the Louisiana Department of Natural Resources. The corps thus chose alternatives that reduced both the applicants’ profit and the economic efficiency of their proposed operations in order to preserve other environmental values. The environmental protection organizations’ second contention, that the alternatives may not be viewed with the applicant’s objectives in mind, is not substantiated by either case law or the applicable regulations. As the district court recognized, the Preamble to the Guidelines states, "... [w]e consider implicit that, to be practicable, an alternative must be capable of achieving the best purpose of the proposed activity.” In turn, the text of the Guidelines provides that an alternative is practicable if it is available and capable of being done after taking into account costs, existing technology and logistics in light of the overall project purposes. .Under these Guidelines, therefore, not only is it permissible for the Corps to consider the applicant’s objective; the Corps has a duty to take into account the objectives of the applicant’s project. Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable. The case law, although sparse, is in accord with our conclusion. In Hough v. Marsh, supra, residents of Edgartown, Massachusetts challenged a Corps permit authorizing the filling of a coastal tract to construct two private homes and a tennis court. The District Engineer had found that the project was not “water dependent,” and undertook the requisite examination to discover the existence of “practicable alternatives.” The Engineer defined the basic purpose of the project as “providing two homes and a tennis court.” Although the district court remanded for the landowners to demonstrate more clearly that no practicable alternatives to the proposed fill existed, the court did not question the Engineer’s formulation of the project’s objective, and did not suggest that the alternatives were not considered from the proper perspective. The district court’s findings that the Corps properly analyzed all six permit applications and correctly decided to grant permission to clear the tracts for agricultural use is amply supported by the record. Nothing in it convinces us that the Corps’ actions were arbitrary, capricious, or otherwise not in accordance with law, the sole standards by which we review such actions. II. The Sicily Island Levee Project is a federally funded agricultural flood control and drainage plan designed to reduce the frequency and duration of backwater flooding throughout the 75,000 acre project area by the use of backwater levees and other drainage works. The Corps’ final EIS on the Project was submitted in 1981. The environmental protection organizations argue that the Environmental Protection Agency failed to perform a mandatory duty imposed by the Clean Air Act to review and comment on this final EIS. The district court did not address this claim in its opinion, but it was asserted in the plaintiffs’ amended complaint, and is properly before us. The EPA did comment on a 1978 draft EIS, the final form of which was released in 1979. The environmental protection organizations do not challenge the sufficiency of this EIS, nor do they contend that the Environmental Protection Agency’s comments were inadequate or did not fulfill their statutory purpose. Instead, they assert that the Agency should have reviewed and commented on the 1981 revised EIS, which included data concerning the establishment of the Tensas National Wildlife Refuge. The 1981 EIS specifically adopted the prior EIS statement of the environmental impact of the levee project. The issue narrows, therefore, to whether the EPA was required to review the 1981 EIS after it had already commented on the 1978 EIS. The ■ answer must be no. There is no indication that the Environmental Protection Agency found the 1978 draft EIS to be “unsatisfactory from the standpoint of public health or welfare or environmental quality.” If it had, it would have published this determination and referred the matter to the Council on Environmental Quality. There is an indication that the Agency thought the draft was “inadequate,” but such a finding is obviously not the same as “unsatisfactory,” and did not require any further EPA action. The EPA had fully reviewed the environmental impact of the levee project in 1978, and the Agency’s silence on the statement’s subsequent incorporation into a revised document concerning the same project should be construed as showing the Agency’s continued approval. III. Finally, the environmental protection organizations contend that the Corps erred in not submitting a supplemental EIS on the Project. To understand this objection to the Project, we must briefly describe the preparatory work performed by the Corps on the final EIS, as well as the Avoyelles litigation which concerned acreage similar to that affected by the Project. The Corps’ final EIS on the Project noted that, of the 75,000 acres involved, 21,100 acres are bottomland hardwood forests, and of these, 1,357 acres are classified as wetlands. The Corps surveyed the property owners of the 21,100 acres, and discovered that 82%, or 17,300 acres, would be cleared even if the Project were not undertaken. On the basis of this survey, the Corps concluded that no adverse impact on the functional ecological values of the 17,-300 acres could be attributed to the Project because conversion of this property to agriculture was not in any way dependent on the Project. The Avoyelles litigation concerned the Lake Long Tract which contained approximately 20,000 acres in Avoyelles Parish, Louisiana. The owners had decided that the land could be put to agricultural use, and had begun a large-scale program of deforestation. This program was halted, however, first by order of the Corps pending a wetlands determination, and then by a citizens’ suit seeking declaratory and in-junctive relief against the owners’ land-clearing activities. After a bifurcated trial, the district court held that over ninety percent of the Lake Long Tract was wetlands, and that a permit from the Corps was required for the landclearing activities on that acreage. On appeal, the Fifth Circuit agreed that a private landowner’s clearing of wetlands for agricultural use is subject to the permit requirements of the Corps of Engineers under Section 404 of the Clean Water Act. The district court’s wetlands determination was set aside, however, and the Environmental Protection Agency’s determination was reinstated. The environmental protection organizations argue in this case that the 1981 final EIS is insufficient because it did not disclose or assess the environmental impacts associated with the loss of the acreage that the Corps assumed would be cleared if the Project were not undertaken. They contend, correctly, that the effect of Avoyelles III is to subject this acreage to the requirements of the Corps’ permit application process. The Corps’ initial assumption that 82% of the forested acres would be cleared regardless of the project, therefore, is no longer tenable, as the Corps is now able to “control” how much land can be cleared. They urge us to find that the district court erred in holding that the Corps was not required to supplement its 1981 final EIS in the light of the decision in Avoyelles III. A. No specific statutory requirement ordains the supplementation of an EIS. The Corps’ regulations, however, dictate that “[a] Supplement to the draft or final EIS on file will be prepared whenever significant impacts resulting from changes in the proposed plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the recommended plan or proposed action____” Similarly, the Council on Environment Quality’s regulations require an agency to supplement an EIS 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 district court held that, under these regulations, “[t]he decision in Avoyelles was not a ‘significant new circumstance or information’ which required the preparation of an additional EIS” because “[n]o new scientific or technical information was revealed which indicated that the project might have environmental effects which differed from those analyzed in the original EIS.” In effect, because the opinion contained no data that is explicitly environmental, the district court found that there would be no point in requiring a supplemental EIS that merely would “overlook the same environmental panorama.” This is an unduly restrictive interpretation of the Corps’ regulations. As recently explained by the Seventh Circuit in Wisconsin v. Weinberger; “The principal factor an agency should consider in exercising its discretion whether to supplement an existing EIS because of new information is the extent to which the new information presents a picture of the likely environmental consequences associated with the proposed action not envisioned by the original EIS.” The issue is not whether the new information is directly environmental but whether, whatever its nature, it “raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary.” That is, whether it “provides a seriously different picture of the environmental landscape such that another hard look is necessary.” The focus of the inquiry is not limited solely to the scientific or technical aspects of the new information. Instead, the new information must be evaluated in terms of the likely environmental consequences that follow from the subsequent data. Even if the new information is not technological, therefore, if it “presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned,” it is significant new information and is sufficient to require an agency to supplement an original EIS. B. Because we reject the district court’s conclusion that Avoyelles III was not the kind of new information that could warrant a supplemental EIS, we turn to the question of whether Avoyelles III does in fact warrant a supplemental EIS. We hold that the Corps’ decision not to file a supplemental EIS was unreasonable, since the plaintiffs raised a substantial environmental issue concerning approximately 40% of the forested areas within the project area. Although the Corps need not necessarily prepare a supplemental EIS, it must reconsider its assumption that these acres will be cleared regardless of the Project. If the Corps determines that there is a reasonable possibility that a significant number of these acres will not be cleared except for the Project, and that therefore the Project may have significant additional impacts not considered in the final EIS, then the Corps must prepare a supplemental EIS. In determining whether a supplemental EIS is required, the legal standard is essentially the same as the standard for determining the need for an original EIS. If, as a result of new circumstances, the project may have a “significant” impact upon the environment that was not considered in the original EIS, then a supplemental EIS is required. “It is the initial responsibility of the Corps to apply this standard and decide whether or not a supplemental EIS is necessary. If a party affected by that decision challenges it in court and raises a ‘substantial environmental issue/ the reviewing court should uphold the agency’s decision only if it is reasonable, rather than use the deferential ‘substantial evidence’ standard.” Under Marsh, although the Corps has the initial responsibility of deciding whether a supplemental EIS is necessary, a party challenging the Corps’ decision not to file a supplemental EIS has two burdens: First, it must raise a “substantial environmental issue.” NEPA does not require that an agency consider the import of any new circumstance, however small. In order to warrant a supplemental EIS, the new circumstance must “present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.” Second, the plaintiff must show that, with respect to this substantial environmental issue, the Corps did not act reasonably. “The standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and in good faith on a reviewable environmental record. If the decision is reasonable, ‘the determination must be upheld.’ ” In our view, the environmental protection organizations met both of these ■ burdens. First, they raised a substantial environmental issue concerning the effect of the Project on 17,300 acres of bottomland hardwood forests. In its original EIS, the Corps did not consider the environmental impacts of the Project on this area because it assumed that the land would be cleared even if the Project were not undertaken. It reasoned that since the area would be cleared anyway, the Project would not cause any additional adverse impacts. As a result of Avoyelles III, however, these 17,300 acres of forestland might not be cleared. Under Avoyelles III, the land may be cleared only if the proposed clearances meet the requirements of the Section 404 permit process. The Corps has never even claimed to have considered whether, under Avoyelles III, the land qualifies for clearance. Since it has never been determined whether or not the planned clearances do meet the requirements of Section 404, it is an open question whether this land will actually be cleared. If the land is not cleared, then it is also an open question whether or not the Project will have adverse impacts on the area. Thus far, the Corps has avoided taking any look at all at the impacts of the Project on this area, let alone a hard look. In order to raise a substantial environmental issue, a party need not show that the proposed project will have significant adverse impacts that the Corps has not considered. It must show only that the project may have such impacts. “[I]f the court finds that the project may cause a significant degradation of some human environmental factor ..., the court should require the filing of an impact statement or grant ... such other equitable relief as it deems appropriate.” On a previous occasion, we noted that “significant” is “a chameleon-like word that takes its functional meaning from its context.” Here, we have no doubt that the potential effect of the Project on 17,300 acres of forest is “significant.” This area constitutes 82% of the total amount of forest affected by the Project. Although there was evidence in the record that 9,000 of these acres have already been cleared, even if only 8,000 acres of uncleared forest remain, this is still more than twice the number of acres of forest that were the subject of the Corps’ original EIS. Since the Corps believed that the potential impacts of the Project on 3,800 acres of forest were sufficient to warrant an EIS, we assume that the potential impact of the Project on 8,000 additional acres of forest is sufficient to warrant a supplemental EIS. Second, we find that the environmental protection organizations not only met their burden of raising a substantial environmental issue; they also demonstrated that the Corps acted unreasonably with respect to that issue. The Corps did not consider the impact of the Project on the 17,300 acres of forest in question because it assumed that this land would be cleared regardless of the Project. It based this assumption on a survey of landowners within the project area which showed that the owners of 17,-300 acres of forested land planned to clear their land even if the Project was not undertaken. As a result of Avoyelles III, however, this basis has been undermined. Under Avoyelles III, the land in question cannot be cleared simply if the landowners want to. If the proposed clearances do not meet the requirements of Section 404, then the land may not be cleared regardless of what the landowners desire. Avoyelles III, therefore, is clearly relevant to the accuracy of the Corps’ assumption that the land in question will be cleared regardless of the Project. Despite this, the Corps did not undertake any reevaluation of its assumption. Instead, it merely claimed that Avoyelles III was not the kind of new information that could warrant a supplemental EIS. Given the relevance of Avoyelles III to the question of whether the 17,300 acres will be cleared, the Corps’ failure to consider the effect of that decision was unreasonable. Finally, we consider what remedy is appropriate in light of the Corps’ unreasonable action. We hold that while the Corps need not necessarily prepare a supplemental EIS, it must at least reconsider its assumption that the 17,300 acres will be cleared regardless of the Project. If the Corps is to adhere to this assumption, it must show that Section 404 permits will be granted to clear most or all of the 17,300 acres. If, on the other hand, the Corps determines that there is a reasonable possibility that a significant amount of land will not receive Section 404 permits, and that the Project may adversely affect this land, then the Corps must prepare a supplemental EIS to consider the effects of the Project on the uncleared land. At this stage, we do not order a supplemental EIS because the question of whether the Project might have significant adverse impacts on the 17,300 acres is still an open one. Thus far, the Corps has not analyzed this issue in light of Avoyelles III. In remanding to the Corps for further consideration, we reaffirm the principle that an EIS is more than a tissue of bare assumptions. If an assumption is to play a critical role in an EIS, it must, at the very least, be well-founded. The Corps cannot avoid the strictures of NEPA by simply assuming away potential problems. AFFIRMED IN PART AND VACATED IN PART AND REMANDED. . Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983). . Louisiana Wildlife Federation v. York, 603 F.Supp. 518 (W.D.La.1984). . See 40 C.F.R. § 230.41 (1984). . Id. § 230.1(d); see also 33 C.F.R. § 320.4(b)(1) (1984). . 40 C.F.R. § 230.10(a) (1984). . Id. § 230.10(a)(2). . Id. § 230.10(a)(3). . Hough v. Marsh, 557 F.Supp. 74, 82 (D.Mass. 1982). . See, e.g., Plaintiffs’ Exhibit 4, "Tensas Delta Land Company Evaluation of the Discharge of Dredged Material in Compliance with Section 404(b)(1) Guidelines” at 1. . Hough v. Marsh, supra, 557 F.Supp. at 83. Cf. 1902 Atlantic Ltd. v. Hudson, 574 F.Supp. 1381, 1398 (E.D.Va.1983) (finding of water dependency is not a prerequisite to fill under the Clean Air Act, but is a factor to consider in the application process). . See, e.g., Plaintiffs’ Exhibit 4, “Tensas Delta Land Company Evaluation of the Discharge of Dredged Material in Compliance with Section 404(b)(1) Guidelines” at 1; Plaintiffs’ Exhibit 11, "Revised Environmental Assessment ... [Bayou Macon]” at 20-21, 23-25; Plaintiffs’ Exhibit 5, “Revised Environmental Assessment ... [Bayou Louis]” at 13, 15-17; Plaintiffs’ Exhibit 9, "Revised Environmental Assessment ... [Duck Creek]” at 13, 15-17. . See, e.g., Plaintiffs’ Exhibit 3, "Revised Environmental Assessment ... [Tensas Delta Land Company]’’ at 16-17; Plaintiffs’ Exhibit 8, "Revised Environmental Assessment ... [Bayou Louis]” at 15-16. . 45 Fed.Reg. 85339. See Louisiana Wildlife Federation v. York, supra, 603 F.Supp. at 528. . See 40 C.F.R. § 230.10(a)(2) (1984). . See South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1017 (5th Cir.1980) (NEPA requires a discussion of alternatives to a project which would reduce environmental harm while still achieving the goals to be accomplished by the proposed action). . 557 F.Supp. at 83. . Id. at 83-84. See Roosevelt Campobello International Park Commission v. United States Environmental Protection Agency, 684 F.2d 1041, 1047 (1st Cir.1982). Cf. Shoreline Associates v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983), aff’d, 725 F.2d 677 (4th Cir.1984). . Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983). . 42 U.S.C. § 7609(a) provides as follows: The Administrator shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this chapter or other provisions of the authority of the Administrator, contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects for construction and any major Federal agency action (other than a project for construction) to which section 4332(2)(C) of this title applies, and (3) proposed regulations published by any department or agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review. . See Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 488 fn. 7 (5th Cir.1984); Bliss v. Equitable Life Assurance Society of United States, 620 F.2d 65, 70 (5th Cir.1980). . Louisiana Wildlife Federation v. York, supra, 603 F.Supp. at 1085. . 42 U.S.C. § 7609(b). . Id. . See Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 500 (D.Kan.1978), aff’d, 602 F.2d 929 (10th Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); National Forest Preservation Group v. Butz, 485 F.2d 408, 412 (9th Cir.1973). . Avoyelles Sportsmen’s League, Inc. v. Marsh, 473 F.Supp. 525 (W.D.La.1979) (Avoyelles I); Avoyelles Sportsmen’s League, Inc. v. Alexander, 511 F.Supp. 278 (W.D.La.1981) (Avoyelles II); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983) (Avoyelles III). . Final Environmental Impact Statement, Flood Control, Mississippi River and Tributaries Tensas Basin, Red River Backwater Area Sicily Island, Louisiana, at 5-6 (September, 1981). . Avoyelles II, supra, 511 F.Supp. at 291. . Avoyelles I, supra, 473 F.Supp. at 531-35. . Avoyelles III, supra, 715 F.2d at 920-22. . Id. at 917-918. . 33 C.F.R. § 230.11(b) (1984) (emphasis added). . 40 C.F.R. § 2502.9(c)(1) (1984). . Louisiana Wildlife Federation v. York, supra, 603 F.Supp. at 531. . Id. . 745 F.2d 412 (7th Cir.1984). . Id. at 418. . Id. . Id. (emphasis in the original). . Id. at 421. . But see Natural Resources Defense Council, Inc. v. City of New York, 672 F.2d 292 (2d Cir.), cert. dismissed, 456 U.S. 920, 102 S.Ct. 1963, 72 L.Ed.2d 462 (1982). But cf. Conservation Law Foundation of New England, Inc. v. General Services Administration, 707 F.2d 626 (1st Cir. 1983). . Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Cf. Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir.1984) Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980); Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 1087 (8th Cir. 1979). . Environmental Defense Fund v. Marsh, supra, 651 F.2d at 992. . Id. (citing Hiram Clarke Civil Club, Inc. v. Lynn, 476 F.2d 421, 424-25 (5th Cir.1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973)). . Id. . Wisconsin v. Weinberger, supra, 745 F.2d at 421. . Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 644 (5th Cir.1983) (quoting Save the Bay, Inc. v. United States Corps of Engineers, 610 F.2d 322, 325 (5th Cir.), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980)), quoted in Vieux Carre Property Owners, Residents & Associates, Inc. v. Pierce, 719 F.2d 1272 (5th Cir. 1983). See also Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 98, 103 S.Ct. 2246, 2253, 76 L.Ed.2d 437 (1983). . 715 F.2d at 920-22. . Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973) (emphasis added). See also Louisiana v. Lee, 758 F.2d 1081, 1084 (5th Cir. 1985). . Environmental Defense Fund v. Marsh, supra, 651 F.2d at 992. . In our view, Judge Rubin’s dissent loses sight of the hardwood forest through the trees. We think it self-evident that since Avoyelles III articulated new legal requirements governing the clearance of a large part of the project area, there is a reasonable likelihood that the Project may have significant, unconsidered effects. "The spirit of [NEPA] would die aborning if a facile, ex parte decision that the project ... did not significantly affect the environment were too well shielded from impartial review.” Save Our Ten Acres v. Kreger, supra, 472 F.2d at 466. . We do not decide here exactly how many uncleared acres are "significant” and therefore warrant a supplemental EIS. This is a determination that the Corps should make in the first instance. . In this respect, the present case differs from Environmental Defense Fund v. Marsh, supra, where the court ordered the Corps to prepare "immediately" a supplemental EIS. 651 F.2d at 1006. In Marsh, unlike the present case, the plaintiffs offered "specific expert testimony and other evidence, unanswered by the defendants, to prove that all of the changes ... will have new environmental impacts that are quite significant, in either qualitative or quantitative terms.” Id. at 996. In ordering different relief from Marsh, we follow the principle that "[t]he court should tailor its relief to fit each particular case.” Id. at 1006.

Louisiana Wildlife Federation, Inc. v. York

ALVIN B. RUBIN, Circuit Judge, concurring in part and dissenting in part. With respect for the views of my colleagues, I dissent from their decision to require the Corps “to perform an adequate analysis of whether a supplemental EIS is required,” Part IIIB of the opinion. Like an EIS, a court’s decision must be based on more than a tissue of assumptions. A court can neither avoid the basic principles of burden of proof nor become a factfinder by the alchemy of converting allegations into evidence. The record is devoid of evidence that would provide any support for the proposition that the Corps failed to take Avoyelles III into account when it prepared the EIS. More important, even if the Corps did not take Avoyelles III into account, the plaintiffs failed to adduce any evidence tending to show that, had the Corps done so, it should or likely would have reached a different result. In all civil litigation, the burden of persuasion on each essential issue rests on the plaintiff. The plaintiff must prove by a preponderance of the evidence that those facts essential to a decision in its favor are more likely to be true than not true. If the plaintiff fails to persuade the trier of fact, or if the plaintiff simply fails to adduce any evidence on an essential issue, the plaintiff has not carried its burden and must lose. The same burden of proof rests on the plaintiff in environmental litigation. Recently, in State of Louisiana v. Lee, we restated the principle that a plaintiff who challenges an agency’s failure to prepare an initial EIS bears the burden of persuasion and clarified the standard that the plaintiff must meet. Prior to our decision in Lee, the language of our decisions was neither consistent nor pellucid. Now, however, it is clear that the plaintiffs must prove “that the Corps was unreasonable in concluding there was no reasonable possibility that the proposed action would significantly degrade any environmental factor.” In an action challenging the adequacy of an EIS, therefore, the plaintiffs are required to establish that the EIS is inadequate. More than an allegation of deficiencies is necessary; the plaintiffs must prove the essential allegations of their complaint by a preponderance of the evidence. The case law from other circuits employs, for the most part, the same analysis used in the Fifth Circuit. Similarly, a plaintiff who contends that a federal agency improperly failed to prepare a supplemental EIS bears the burden of proving that the changes that occurred after the EIS was prepared “will have a ‘significant’ impact upon the environment” that was not covered by the EIS. In Environmental Defense Fund v. Marsh, after stating this precept, we found that the plaintiffs had satisfied their burden of proof because they cited “specific expert testimony and other evidence, unanswered by the defendants, to prove that all of the changes ... will have new environmental impacts that are quite significant, in either qualitative or quantitative terms.” The environmental organizations in this case did not adduce a single expert opinion or the testimony of a single witness that the impact of Avoyelles III would have been significant. The district court made no finding on the subject. All we know is that the Project involves 21,100 acres of bottomland hardwood forests, and that the Corps’ survey of property owners, made before Avoyelles III was decided, found that 82%, or 17,300 acres, would be cleared even if the project were not undertaken. In fact, the plaintiffs conceded in oral argument that 8,000 to 9,000 acres have already been cleared. Based on these few facts, my brethren find that “the plaintiffs raised substantial environmental issues concerning approximately 40% of the forested areas within the project area.” This “finding” is presumably based solely on the plaintiffs’ mere allegations and mathematical computations made by deducting from the Corps’ original figures the acreage admittedly already cleared. I doubt that, as an appellate court, we should make such findings of fact, and am certain that an allegation alone is not sufficient basis for us to do so. My brethren assert that “[t]he Corps has never even claimed to have considered whether, under Avoyelles III, the land qualifies for clearance.” Although literally accurate, this does not appear to me to fully state the Corps’ position: in its brief, the Corps states that “[t]he District Engineer found, impliedly, that the Avoyelles decision did not result in new, previously unan-alyzed, significant impacts on the environment from the project.” To debate whether or not the Corps has proved that a significant part of the Project area will be cleared even if the Project does not proceed, however, is beside the point. It is not the burden of the Corps to prove how much land will be cleared, nor does it bear the burden of establishing that the Project will not have significant environmental impact. It is the burden of the plaintiffs to adduce evidence, not merely to make allegations or to rest on assumptions, establishing that the Corps was unreasonable in reaching the conclusion it did and that there was in fact a reasonable possibility that the application of Avoyelles III would significantly change the conclusions reached in the EIS. The Sicily Island Area Levee Project has been planned since 1975. The Corps submitted a draft EIS in 1978, which it revised and released in 1979. The EIS was completed and submitted in 1981. This suit began in 1983. It was tried in 1984. Now, in 1985, we in effect remand the question of the Project’s environmental impact to the Corps. The Corps may conclude that a supplemental EIS should be prepared, or it may conclude that none is necessary, or it may decide to abandon or to modify the project. Any conclusion it reaches will be subject to further attack. This is not a course that should be taken unless the record demonstrates an evidentiary basis for such action. It is not warranted if it rests, as I submit it does, on the factual assumptions of an appellate court. The effect of the course my brethren follow is likely, if pursued in other cases, to be disastrous. The Project has now been planned for ten years. The final EIS was submitted four years ago. New events are bound to occur in a four-year span. If every time an arguably “new”, arguably “significant” event occurs, or an allegedly new and allegedly significant “fact” is discovered, those who oppose a project may, by filing suit, put the Corps to the burden of proving either that the datum has already been considered or that it is insignificant, no project could ever be completed if the opposition is determined. Dedication to preservation of a wholesome environment neither requires nor permits us to depart from sound judicial precepts. The plaintiffs in this case have failed to show by evidence that the Corps has failed in its duty. They have not shown affirmatively that the Corps did not consider Avoyelles III. Moreover, the environmental organizations have not adduced any evidence that that decision would have a significant environmental impact on the Project. In short, the Corps’ decision has not been shown to rest on a tissue of assumptions. I respectfully submit that it is the plaintiffs’ case that mistakes words for facts and charges for evidence. For these reasons, I respectfully dissent. . F. James and G. Hazard, Civil Procedure § 7.6 (3d ed. 1985). See 9 Wigmore on Evidence § 2485 (Chadbourn rev. 1981). . 758 F.2d 1081 (5th Cir.1985). . Id. at 1084. . See, e.g., Vieux Carre Property Owners, Residents & Associates, Inc. v. Pierce, 719 F.2d 1272, 1279 (5th Cir.1983); Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517, 522 (5th Cir. 1978); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir.1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir. 1973). . Lee, supra, 758 F.2d at 1085 (emphasis added), citing Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir.1973). . Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975); Sierra Club v. Lynn, 502 F.2d 43, 52 (5th Cir.1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975); Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir.1974); Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 492 F.2d 1123, 1130-31 (5th Cir.1974). . Examples of cases discussing the process of proof in actions challenging an agency’s decision not to prepare an initial EIS are Lower Alloways Creek Township v. Public Service Elec. & Gas Co., 687 F.2d 732, 743, 747 (3d Cir.1982) and Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). Examples of opinions discussing the allocation of the burden of proof in suits opposing the adequacy of an initial EIS include Monroe County Conservation Council, Inc. v. Adams, 566 F.2d 419, 422 (2d Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Sierra Club v. Froehlke, 534 F.2d 1289, 1300 (8th Cir.1976). . Environmental Defense Fund v. Marsh, 651 F.2d 983, 992 (5th Cir.1981). . 651 F.2d 983 (5th Cir.1981). . Id. at 996 (emphasis supplied).

Buccaneer Point Estates, Inc. v. United States

ALLGOOD, District Judge: This appeal arises from an action to enjoin the United States from preventing the plaintiffs/appellants from completing development above the mean high tide line (hereinafter MHTL) at Buccaneer Point, Key Largo, Florida, without first obtaining a permit from the United States Army Corps of Engineers (“the Corps”). The district court denied the relief prayed for and the plaintiffs appealed. The property which is involved in this litigation is a 92-acre peninsula in Key Largo, Florida. Development of the property began in 1972. The proposed development was to consist of 200 lots suitable for single family residences. At the time that the development began, the Corps required permits for work below or seaward of the MHTL but did not exercise jurisdiction over nor require permits for work above or landward of the MHTL. In 1973 the Corps first raised questions concerning the development of Buccaneer Point. At the Corps’ request, the plaintiffs provided surveys which indicated that the sites where they were placing fill were above the MHTL and therefore not subject to the Corps permitting requirements. These surveys were found unacceptable by the Corps which notified the plaintiffs that a tide study would be made and that the Corps would determine the location of the MHTL. Having been advised by the Corps that all work on the property would be “at your own risk,” plaintiffs ceased development from April, 1973 through September, 1973. In September a small amount of work was done and the Corps sent a cease and desist letter with which the plaintiffs complied. By letter, dated March 25, 1975, the Corps informed the plaintiffs that work could resume without a permit as the property had been determined to be above the MHTL. In September, 1975, plaintiffs were informed by the Corps that under new regulations adopted pursuant to a court order [NDRC v. Callaway, 392 F.Supp. 685 (D.D.C.1975)] a permit would be necessary for further development. Plaintiffs did not apply for a permit, but brought this action for declaratory and injunctive relief. Plaintiffs asserted that the Corps was estopped by the March 25, 1975 letter from applying the new permitting requirements to them. Plaintiffs also argued that the “grandfather” clause was unreasonably restrictive and therefore a denial of due process, and that the retroactive application of the new regulations was manifestly unjust. The district court entered final judgment against plaintiffs on February 25, 1982 and subsequently denied a motion for rehearing. This appeal followed. In rendering its decision, the district court noted that “[t]he chronology of governmental activities after its representatives became aware of plaintiffs intentions, leaves something to be desired,” but, nevertheless, rejected the plaintiffs arguments and held for the government. While this court agrees with the district court that this case does not present a fact situation where estoppel against the government should be employed, the court does feel that requiring the plaintiff to obtain a § 404 permit for work above the MHTL would be a retroactive application of the Corps regulations which would result in a “manifest injustice.” See, Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964). In a situation such as the one presented by the facts in this case, the court should balance the effects of retroactive application against the “mischief of producing a result which is contrary to statutory design or to legal and equitable principles.” McDonald v. Watt, 653 F.2d 1035, 1043 (5th Cir.1981) [citations omitted]. In this case we find the balance favors the plaintiffs. The plaintiffs were justified in relying upon the March 25, 1975 letter. Members of the public are entitled to assume that public officials will act in accordance with law. Save Our Wetlands v. U.S. Army Corps of Engineers, 549 F.2d 1021 (5th Cir.1974). Throughout the course of their dealings with the Corps, the plaintiffs acted in good faith. It is uncontested that had the plaintiffs not ceased development in 1973 in an attempt to comply fully with the Corps’ regulations, the project would have been completed prior to the change in regulations and the entire project would have been “grandfathered” in. Having delayed for 18 months, plaintiffs obtained new financing and prepared to complete the project on the strength of the assertion in the March 25th letter. Reliance interests should be weighed heavily in the shaping of equitable remedies. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). In balance, the environmental impact of the completion of the Buccaneer Point development must be considered. The record indicates that 80% of the development is complete. The letter of March 25, 1975 lists three requirements with which the plaintiffs’ compliance was required in completing the remaining 20%. The court finds that compliance with these requirements offers satisfactory protection of environmental concerns. It is therefore the opinion of this court that plaintiffs should not be required to obtain a § 404 permit to complete the development at Buccaneer Point. Such completion will be subject to the three require-merits listed in the Corps’ letter of March 25, 1975. Accordingly, the decision of the district court is REVERSED. . Also called the mean high water mark and mean high water line. . The rule in this circuit has been firmly established: the United States is not subject to an estoppel when it acts in its sovereign capacity. Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir.1982); Hicks v. Harris, 606 F.2d 65 (5th Cir.1979). Plaintiffs urge that the Corps’ actions amounted to “affirmatively misconduct” which should act to estop the government. The “affirmative misconduct” exception has not, however, been accepted by this circuit. See, Deltona, supra. This court does not find that the facts presented in this case justify adoption of this exception.

National Wildlife Federation v. Adams

HUG, Circuit Judge: This is an appeal from an order of the district court denying appellants’ motion for a preliminary injunction to restrain further construction of two highway segments approved for federal funding in connection with the Trident Submarine Base located in Bangor, Kitsap County, Washington. The issues on appeal are whether the appellees complied with provisions of: (1) Executive Order 11, 990, 42 Fed.Reg. 26,961 (1977), which is titled “Protection of Wetlands”; (2) the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4369; and, (3) section 608 of the Military Construction Act of 1975, Pub.L.No. 93-552, 88 Stat. 1745, 1763 (1974), which authorizes the use of federal funds to assist communities near the Bangor Trident site in meeting the cost of providing increased services and facilities for residents of the area. The district court found that appellees had complied with all the statutory requirements. The district court refused to enjoin the construction, concluding that appellants had not shown a probability of success on the merits, and that the public interest would suffer far more serious harm if an injunction were issued than would appellants if it were not. We affirm. I One of the primary problems anticipated as a result of the construction of the Trident Base at Bangor, with the concomitant population increase, was the lack of a transportation network sufficient to provide access to the base. Two highway projects are involved in the present dispute. One project is the proposed new 8.14 mile section of State Route 3 (SR-3). The existing section of SR-3, which is presently a two-lane road, and is the main north-south route through Kitsap County, will be replaced by a controlled-access highway with two lanes in each direction. This new highway will run from the Clear Creek Road Interchange near Silverdale to the existing SR-3 near Poulsbo. The route selected for this new highway, known as the T-5 alternative, runs through the Clear Creek Valley to the west of the present section of SR-3. The second proposed improvement challenged in this appeal, the Bucklin Hill Bypass, is a county road which will connect to the new SR-3 at the Clear Creek Road Interchange and provide service to Silver-dale. The principal environmental concerns raised by the appellants relate to the effect of SR-3 on wetlands and agricultural land. Specifically, appellants contend that appellees have not complied with the mandate of Executive Order 11,990 of strict protection of wetlands, and that the effect of SR-3 upon such lands was not adequately described in the Draft Environmental Impact Statement (DEIS). In addition, appellants contend that the 'Department of Defense is providing a larger amount of funding for the SR-3 and Bucklin Hill Bypass projects than is permitted by section 608. II This case was originally filed on November 3, 1978 in the United States District Court for the District of Columbia. On January 31, 1979 a preliminary injunction was entered preventing any action on SR-3 until February 20,1979; this injunction was later extended to March 9, 1979. A motion to change venue to the Western District of Washington was granted. The State of Washington was granted leave to intervene on February 2, 1979, and Kitsap County was granted such leave on February 9, 1979. On March 8, 1979, a hearing was held on appellants’ renewed motion for a preliminary injunction. The district court issued a memorandum opinion and order denying injunctive relief and entered judgment on March 13, 1979. This appeal followed. III Our review on an appeal from denial of a preliminary injunction is limited to determining whether the district court has “abused its discretion or based its decision upon an erroneous legal standard or clearly erroneous finding of fact.” City of Anaheim, California v. Kleppe, 590 F.2d 285, 288 n. 4 (9th Cir. 1978); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir. 1978). In recent cases this court has approved a tripartite test for determining the propriety of injunctive relief: (1) Have the movants established a strong likelihood of success on the merits? (2) Does the balance of irreparable harm favor the movants? (3) Does the public interest favor granting the injunction? Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir. 1977); Sierra Club v. Hathaway, 579 F.2d at 1167. The district court, in denying the injunction in the- present case, correctly considered these factors. The court found that the appellants had not shown a strong likelihood of success on any of their claims, and that the public interest would “suffer far more serious harm” if injunctive relief were granted than would appellants if it were not. We agree with the district court’s evaluation. IV Appellants argue that the selection of the T-5 route did not comply with the directive of Executive Order 11,990 that each federal agency shall avoid undertaking or providing assistance for new construction in wetlands, unless there is “no practicable alternative to such construction.” Appellants contend that there was an inadequate search for alternatives to the T-5 route, pointing to at least three alternatives they allege are preferable to T-5 in terms of impact on wetlands. The district court found that the Federal Highway Administration (FHWA) did construe its authority consistently with the Order and reasonably made the determination therein mandated. Appellants analogize Executive Order 11,990 to section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f), and section 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, as amended. The language of these statutes protecting public parks is similar though not identical to that of Executive Order 11,990. The two statutes provide that the Secretary of Transportation “shall not approve” any project which requires use of park land unless “there is no feasible and prudent alternative.” The Executive Order provides that each agency “shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds . . . that there is no practicable alternative to such construction . . . The Executive Order also adds a sentence on making the determination of practicability not contained in the two statutes: “In making this finding the head of the agency may take into account economic, environmental and other pertinent factors.” It is apparent that the language of the statutes is more restrictive than Executive Order 11,990. The statutes prohibit approval absent a finding of no feasible alternative, whereas Executive Order 11,990 states that the use of wetlands is to be avoided absent a finding of no practicable alternative. Furthermore, the agency, under Executive Order 11,990, is expressly allowed to take into account economic, environmental and other pertinent factors. The Supreme Court has held that the two statutes permit the construction of highways through park lands only in “the most unusual situations,” specifically, “where alternative routes present unique problems.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). We have no doubt that Executive Order 11,990 extends a broader protective aura to wetlands than would NEPA standing alone. We conclude, however, that the Order does not go so far as the statutes discussed in Overton Park. The wording of the Executive Order is less prohibitive and contemplates more balancing of other factors than the statutes at issue in Overton Park. The test for determining whether an alternative propounded by agencies promulgating regulations under Executive Order 11,990 is practicable is whether it is capable of attainment within relevant, existing constraints. Our review of the decision of the head of the agency is limited to determining whether the choice is “arbitrary, capricious, [or] an abuse of discretion” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. 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. 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- Id. (citations omitted). After issuance of the DEIS, in response to extensive comments received by the FHWA from the United States Fish and Wildlife Service (FWS), the FHWA undertook a study in order to determine if the mandate of Executive Order 11,990 had been met. A biology report was prepared, entitled “Wetlands on the Trident Base Access Study Area,” which carefully examined the impact of SR-3 on wetlands and the impact on wetlands of alternatives discussed in the DEIS. This study classified as wetlands much of the land previously identified as pastureland in the DEIS. After reviewing all the relevant information, the FHWA, on March 20, 1978, issued a “Wetlands Determination.” This report concluded that there was no practicable alternative to T-5 under Executive Order 11,990, and, in addition, set forth measures to mitigate the impact of T-5 on wetlands as required by the Order. The evidence supports the agency’s decision and the district court’s findings, and refutes appellants’ contentions that practicable alternatives were not adequately considered. The T-6 alternative proposed by appellant Petersen was considered, and, in fact, comes within the same corridor studied in relation to the T-3A alternative. This alternative was rejected because it was determined that it would actually cause greater harm to the environment, while not providing adequate access to the base. The two other alternatives proposed by appellants, improvement of Clear Creek Road or improvement of Central Valley Road, also have fatal deficiencies. Neither would sufficiently alleviate the central problem — the accommodation of the increased traffic due to the establishment of the base. In addition, improvement of these routes would promote increased development along their paths, which would be socially and environmentally more damaging. The record also indicates that a study of mass transit feasibility was conducted with negative results. As the district court found, appellees considered the following subjects in assessing the impact of the T-5 route: commerce, industry, urban development, land use, farming, employment, taxation, vegetation, wildlife, water, energy, traffic, transportation, visual and air quality, noise, and solid waste. Such a comprehensive review clearly meets the requirements of Executive Order 11,990. In sum, we conclude that the appellees adequately and in good faith complied with Executive Order 11,990. Comprehensive studies were conducted and many factors considered in attempting to alleviate a serious problem. The decision to use route T-5 is supported by the record and is not arbitrary, capricious or an abuse of discretion. We therefore affirm the finding of the district court on this issue. V Appellants contend that the DEIS was so deficient in its discussion of the impact of the project on wetlands that it could not serve as a meaningful basis for preparation of the Final Environmental Impact Statement (FEIS). Appellants assert that circulation of such an inadequate DEIS frustrated the requirement that other agencies be consulted and the public allowed an opportunity for comment. Appellants claim that if the true extent of the effect of T-5 on wetlands were revealed, much different comments would have been received. The “question whether an EIS complies with the requirements of NEPA [is] a procedural question, governed by § 706(2)(D) [of the Administrative Procedure Act].” Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc). Agencies must follow the procedures established by NEPA in preparing an EIS. Id. “Circulation of a grossly inadequate statement as the draft of [an FEIS] could conceivably frustrate the goal of obtaining informed agency and public comment on the environmental consequences of a proposed project, and in some circumstances this could amount to a violation of the responsible agency’s duty” under NEPA. Id. See also Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-1023 (9th Cir. 1980). It is true that the DEIS indicated that only 5 acres of wetlands would be removed by T-5. The final EIS states that the T-5 alternative will actually affect 38 acres directly, and another 51 acres to varying degrees. The district court found, however, that this deficiency in the DEIS “did not deprive any interested agency or the public of notice or the opportunity to comment thereupon.” We are satisfied that the effects described in the DEIS were sufficient to allow comment by all interested parties. In fact, the difference between the acreage figures in the DEIS and the FEIS is principally in nomenclature. The DEIS referred to affected marshes, streams, flooded pastures, and wetlands. Subsequently, in the “Wetlands Determination” prepared pursuant to Executive Order 11,990, these areas came within the definition of wetlands. The description of the nature of these areas in the DEIS was sufficient to allow informed comment. Indeed, the Fish and Wildlife Service sent extensive comments expressing its concern. This acreage was incorporated in the definition of wetlands contained in the final EIS, thus completing the refinement of this definitional process. Appellants’ argument that the effects of T-5 on farmland were inadequately described in the DEIS likewise is not persuasive. The DEIS addressed the effects of T-5 on various specific farms and other acreage that was clearly farmland. Again, differences in the FEIS were principally a matter of definitional refinement. Under these circumstances, we cannot say that the DEIS was so grossly deficient as to frustrate the opportunity for comment. To the contrary, as the district court found, the DEIS was sufficiently detailed to afford a meaningful opportunity to comment. This resulted in a comprehensive FEIS which was both sufficiently detailed to aid in the substantive decision and to make available to the public information about the environmental impact of the proposed action. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). VI Appellants’ final contention is that the funding for SR-3 and the Bucklin Hill Bypass is being provided by the Department of Defense in a manner not permitted by section 608 of Pub.L. No. 93-552. Section 608 authorizes the Secretary of Defense to assist communities located near the Trident Base in meeting the cost of providing increased municipal services and facilities to the residents of those communities. Section 608(a) sets forth the criteria for determining the eligibility of communities for such impact funds and section 608(c) provides for the method of determining the amount of impact funds to be made available to any local community for any community service or facility. In accordance with Section 608, the Secretary of Defense determined that the State of Washington and Kitsap County would be entitled to approximately $22 million in impact funds for improving roads in the area of the Trident Base. It is not this finding the appellants challenge, but rather the decision of the Secretary to allocate a large portion of these impact funds to two high priority projects, rather than distributing the funds to be used for each specific roadway project affected by the Trident Base. The Secretary, in conjunction with local officials, has determined to allocate $13.1 million toward the construction of the first stage of SR-3, which will cost about $27.6 million, and to allocate $7.5 million for the entire cost of the construction of the Bucklin Hill Bypass. It is this pooling of the impact funds for the construction of these highway projects that appellants contend violates the provisions of section 608. The district court found that the Secretary’s approval of the level of funding for these projects, and the pooling of funds beyond the precise Trident — related percentage of SR-3 and Bucklin Hill Bypass expenditures, is not a violation of federal law, so long as the Secretary’s funding of those projects does not exceed the total Trident-related share of the overall cost of improving state and federal roads. We agree. The Secretary, after determining the eligibility of local communities to receive impact funds under section 608(a), is given broad discretion under section 608(c) to determine the amount of impact funds available for any project within a given service category. In determining the amount of financial assistance to be made available to any local community for a service or facility, the Secretary is required under section 608(c) to take into consideration: (1) the time lag between the initial impact of increased population in any such community and any increase in the local tax base which will result from such increased population; (2) the possible temporary nature of the increased population and the long-range cost impact on the permanent residents of any such community; and (3) such other pertinent factors as the Secretary of Defense deems appropriate. In evaluating the various highway improvements necessitated by the Trident Base, the Secretary concurred with the decision of local officials that the most pressing need was for the construction of the major arteries to carry the bulk of the traffic between the Trident Base and the local communities. There is no prohibition in section 608 precluding the pooling of impact funds, nor is there any requirement that the funds be parcelled out to each specific project in proportion to the impact of Trident on that project. The Secretary is required under section 608(c) to consider the time lag between the initial impact of increased population in the community and any increased tax base which would result. It is a reasonable conclusion that it would be best to utilize impact funds to construct the major arteries and leave the local peripheral roadways to be constructed at a later date when the tax base of the local communities has increased. Moreover, the Secretary is to take into consideration under section 608(c)(3) “such other pertinent factors as the Secretary of Defense deems appropriate.” The more pressing need for the major arteries would certainly be a pertinent factor to be taken into consideration in allocating the impact funds and would be well within the authority conferred by section 608. VII We conclude that in the present case the provisions of NEPA and Executive Order 11,990 were fully complied with by all involved agencies and that the pooling of the impact funds for the construction of SR-3 and the Bucklin Hill Bypass was within the authority of the Secretary of Defense. The judgment of the district court is AFFIRMED. . The appellants include the National Wildlife Federation, Friends of the Earth, Inc., and Citizens for Alternatives to Freeways, three environmental groups who have shown longstanding concern for the protection of the environment, and several residents of Kitsap County whose land will be directly affected by construction of the highway. The appellees include the federal officials responsible for approval and funding of the highway, the Department of Transportation of the State of Washington, and Kitsap County. . A thorough discussion of the planning and environmental assessments involved in construction of the base itself may be found in Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977). . The claims relating to this aspect of the project relate solely to the propriety of the funding under section 608. . We have commented extensively on this three-fold test as compared to the test enunciated in William Inglis & Sons Baking Co. v. ITT Continental Banking Co., 526 F.2d 86, 88 (9th Cir. 1975). See City of Anaheim, California v. Kleppe, 590 F.2d at 288 n. 4; Sierra Club v. Hathaway, 579 F.2d at 1167 n. 7. For purposes of this opinion it does not matter which standard we adopt, for appellants have failed to establish entitlement to relief under either. . In pertinent part, Executive Order 11,990 provides: [I]n order to avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative, it is hereby ordered as follows: Section 1. (a) Each agency shall provide leadership and shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency’s responsibilities for . providing Federally undertaken, financed, or assisted construction and improvements; . Section 2. (a) In furtherance of Section 101(b)(3) of the National Environmental Policy Act of 1969 (42 U.S.C. § 4331(b)(3)) to improve and coordinate Federal plans, functions, programs and resources to the end that the Nation may attain the widest range of beneficial uses of the environment without degradation and risk to health or safety, each agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors. . The relevant language in 23 U.S.C. § 138 and 49 U.S.C. § 1653(f) provides: [T]he 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. . Definitions set forth by different agencies may be found at 43 Fed.Reg. 6032 (1978) (Water Resources Council); 44 Fed.Reg. 1456 (1979) (Environmental Protection Agency); 44 Fed.Reg. 20473 (1979) (Economic Development Administration); 10 C.F.R. § 1022.4(p) (Department of Energy). Each of these definitions recognizes that Executive Order 11,990 allows consideration of environmental, technological, legal, and financial factors. Of course, present unavailability of sufficient financial resources to implement either alternatives or mitigative measures cannot be used as the sole, or even the major determinant to a finding of impracticability. . There is no question that the guidelines of the Order apply to the SR-3 project. Section 8 of the Order states that it shall be implemented by each agency by October 1, 1977, but that it is not applicable to projects for which a draft or final EIS is filed before October 1, 1977. The DEIS of SR-3 was not filed until October 14, 1977, and the final EIS was not filed until April 18, 1978. . The FWS approved the mitigative measures as ameliorating its earlier objections. A review of the record reveals that FHWA adequately considered various alternatives to minimize the impact of the project on wetlands. Cf. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 85-87 (5th Cir. 1976) (failure to adequately consider mitigative measures requires remand). . Appellants do not challenge the adequacy of the discussion in the FEIS concerning wetlands and agricultural lands; they challenge only the DEIS. Nor do appellants contend that the DEIS was not circulated to appropriate agencies or was not available to the public. . The district court assumed without deciding that the plaintiffs had standing to assert this claim, and then decided it on the merits. We address the standing issue to determine if we have jurisdiction before reaching a decision on the merits. The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The test for whether appellants have standing is two-pronged: (1) there must be a “distinct and palpable injury” to the plaintiff; and, (2) there must be “ ‘fairly traceable’ causal connection between the claimed injury and the challenged conduct.” Duke Power, 438 U.S. at 72, 98 S.Ct. at 2630. (citations omitted). The individual appellants in this case will clearly suffer harm to their land if the SR-3 project goes forward. Appellees have argued that the section 608 funds are necessary for completion of the project, because sufficient additional funding is not presently available from other federal agencies or State or local sources. Thus, if this court were to grant the requested relief, the project would not proceed. The individual appellants therefore have standing to bring the challenge to the manner of funding. Having reached this conclusion, we need not consider whether the three environmental groups are proper parties, compare Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (plaintiff lacked standing because it alleged no individualized injury) with United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (plaintiffs alleged specific injury and thus had standing), for their “presence or absence makes no material difference to either our consideration of the merits of the controversy or to our authority to award the requested relief." Duke Power, 438 U.S. at 72, n.16, 98 S.Ct. at 2630, n. 16. . Section 608 provides in subsections (a) and (c): (a) The Secretary of Defense is authorized to assist communities located near the TRIDENT Support Site Bangor, Washington, in meeting the costs of providing increased municipal services and facilities to the residents of such communities, if the Secretary determines that there is an immediate and substantial increase in the need for such services and facilities in such communities as a direct result of work being carried out in connection with the construction, installation, testing, and operation of the TRIDENT Weapon System and that an unfair and excessive financial burden will be incurred by such communities as a result of the increased need for such services and facilities. (c) In determining the amount of financial assistance to be made available under this section to any local community for any community service or facility, the Secretary of Defense shall consult with the head of the department or agency of the Federal Government concerned with the type of service or facility for which financial assistance is being made available and shall take into consideration (I) the time lag between the initial impact of increased population in any such community and any increase in the local tax base which will result from such increased population, (2) the possible temporary nature of the increased population and the long-range cost impact on the permanent residents of any such community, and (3) such other pertinent factors as the Secretary of Defense deems appropriate. . The state is providing $1 million of the additional funding for the first stage of SR-3 and the remaining $13.5 million is being provided from the Department of Transportation as defense access funding pursuant to 23 U.S.C. §210. The total cost of the entire new SR-3 highway will be approximately $40 million.

Environmental, Defense Fund, Inc. v. Froehlke

HEANEY, Circuit Judge. The primary question raised on this appeal is whether an environmental impact statement, filed by the Corps of Engineers in connection with the Cache River — Bayou DeView Channelization Project, complied with the National Environmental Policy Act of 1969. Secondary questions are whether the project violates the Water Bank Act of 1970, the Pish and Wildlife Coordination Act, or 33 U.S.C. § 701a. The trial court answered the first question in the affirmative and the latter questions in the negative. We reverse and remand. FACTS The Cache River Basin comprises 2,030 square miles of bottom lands in northern Arkansas and southern Missouri. The predominate economic activity in the area is agriculture, but the basin contains prime habitat for game, fish and wildlife, thousands of acres of hardwood bottom lands and other swamp lands having rare natural aesthetic quality. Severe floods have occurred in the basin since 1916 causing millions of dollars of damage to farms and urban areas. By the Flood Control Act of 1950, Congress authorized construction of the project. Planning funds were regularly appropriated from 1963 to 1971. In July, 1969, a general design for the project was completed. It called for clearing, realigning, enlarging, and re-channeling approximately one hundred forty miles of the Cache River upstream from its junction with the White River, fifteen miles of its upper tributaries, and seventy-seven miles of its principal tributary — the Bayou DeView, for flood control and drainage purposes. The project was estimated to cost the federal government forty-three million dollars. In 1971, specific plans were completed for the first phase of the project. In July of that year, a contract was let to clear and excavate 6.7 miles of the lower Cache River to relieve backwater flooding. Two million dollars for this phase of construction was appropriated for fiscal 1972 and 1973. On December 7, 1970, the Corps of Engineers filed a final environmental impact statement with respect to the project. On September 24, 1971, a draft environmental statement was filed by the Corps. This statement discussed a “mitigation plan” to purchase thirty thousand acres of land in the basin to mitigate the wildlife losses. On October 6, 1971, the plaintiffs filed an action seeking to halt construction of the project. Construction was voluntarily postponed by the Corps to permit the trial court to consider the matter. On May 12, 1972, the trial court filed a final judgment in favor of the defendants. Construction was undertaken immediately. ADEQUACY OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT Section 102(C) of NEPA requires the Corps to “[ijnclude 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” which discusses the impact of the action on the environment. The final impact statement, filed on December 7, 1970, is not sufficiently detailed to meet the standards of the Act. It is too vague, too general and too con-clusionary. Thus, it cannot form a basis for responsible evaluation and criticism. The statement does not meet the guidelines laid down by the Council on Environmental Quality or the Corps itself. The most significant failure of the December 7 impact statement is its unsatisfactory discussion of alternatives to channelizing the Cache River. Section 102(C) (iii) of NEPA specifically requires that the impact statement discuss “ [alternatives to the proposed action.” In this case, a number of alternatives to the proposed project have been suggested by responsible critics, including state and federal agencies and private groups and individuals. These alternatives include (1) acquisition of public lands to mitigate the loss of public access to forest and wildlife resources, (2) flood plain zoning, (3) crop insurance, (4) outright purchase of the fee title to or a flowage easement over the lands in the flood plain, and (5) four plans consisting of various combinations of diversions, floodways, reservoirs, interceptor ditches and levees. While some of these alternatives were mentioned in the impact statement and others set forth by including letters received by those who had suggested them, none were discussed in detail by the Corps. This treatment of alternatives is insufficient. Section 102(G) of NEPA states that the Corps should “[{'initiate and utilize ecological information in the planning and development of resource-oriented projects.” And § 102(D) of NEPA mandates that the Corps: “Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;” The guidelines of the CEQ state that the impact statement should include: “ * * * A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential. * * * ” Statements on Proposed Federal Actions Affecting the Environment: Interim Guidelines § 7(a) (iii), 35 Fed.Reg. 7390, et seq., April 30, 1970. Accord, Statements on Proposed Federal Actions Affecting the Environment: Guidelines § 6(a) (iv), 36 Fed.Reg. 7724, et seq., April 23, 1971. And the Corps own guidelines stated that the statement should “ * * * Discuss the unavoidable adverse effects and the implications thereof, and identify the abatement or mitigation measures proposed to rectify these and the extent of their effectiveness. * * * ” EC 1120-2-56 App. B § 5(d), September 25, 1970. Furthermore, “[t]he legislative history suggests that the Congress * * * expected] the 102 statement to record the agency’s tradeoffs of competing values. In explaining the bill on the Senate floor, Senator Jackson said: “‘Subsection 102(c) (now 102(2)(C)) establishes a procedure designed to insure that in instances where a proposed major Federal action would have a significant impact on the environment that the impact has in fact been considered, that any adverse effects which cannot be avoided are justified by some other stated consideration of national policy, that short-term uses are consistent with long-term productivity, and that any irreversible and irretrievable commitments of resources are warranted.’ [115 Cong.Rec. 29055 (October 8, 1969)]” (Emphasis included.) Council on Environmental, Quality, Environmental Quality 245 (1972). To fulfill these mandates, the impact statement should not just list the alternatives to the proposed project but it should also include the results of the Corps’ own investigation and evaluation of alternatives so that the reasons for the choice of a course of action are clear. The Corps argues that despite these omissions, its impact statement should be considered sufficient because “at every step of the way, from preauthorization studies through detailed project planning, which includes recent environmental and mitigation studies, the voices of fish and wildlife interests have been heard, considered and reported to Congress.” We disagree. Nothing less than a complete impact statement can serve the important purposes of § 102(C) (iii) of NEPA. As the District of Columbia Circuit Court stated in Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834 (D.C.Cir. 1972), “it is the essence and thrust of NEPA that the pertinent Statement serve to gather in one place a discussion of the relative environmental impact of alternatives.” Section 102(C) of NEPA requires that copies of the statement “shall be made available to the President, the Council on Environmental Quality and to the public * * * and shall accompany the proposal through the existing agency review processes.” A statement which includes a detailed discussion of all reasonable alternatives to a proposed project and their effects, see, Natural Resources Defense Council, Inc. v. Morton, supra at 834, insures that agency officials will be acquainted with the tradeoffs which will have to be made if any particular line of action is chosen. A complete impact study is an integral part of the ‘careful and informed decision-making process.” See, Calvert Cliffs Coord. Com. v. United States A.E. Com’n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The complete impact statement must contain more than a catalog of environmental facts, however. The agency must also “explicate fully its course of inquiry, its analysis and its reasoning.” Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). Thus, the complete formal impact statement represents an accessible means for opening up the agency decision-making process and subjecting it to critical evaluation by those outside the agency, including the public. Finally, the formal impact statement supplies a convenient record for courts to use in reviewing agency decisions on the merits to determine if they are in accord with the substantive policies of NEPA. To hold that the piecemeal presentation of environmental views to Congress over a period of approximately twenty-five years may be substituted for a complete environmental impact statement would rob the statement of much of its efficacy as an action-forcing mechanism. The Corps also argues that it was not necessary to discuss in greater detail the alternative of acquiring land to mitigate the loss of natural resources because this alternative was a separate project requiring separate Congressional authorization. We disagree. The proposed mitigation plans go to the very heart of the question before the Corps in preparing its environmental impact statement — whether the project should proceed at the present time in view of its environmental consequences. Responsible critics of the project have urged that no project be initiated until a mitigation plan is actually put into effect in order to prevent easily avoidable environmental losses. They state that following the commencement of construction, it will become difficult — if not impossible — to acquire suitable land for mitigation because of increased property values and the continued clearing of land for cultivation. Thus, in their view, any mitigation proposal is inextricably linked to the project itself. Such a view is not clearly without merit. Yet the Corps has provided no evaluation or analysis of the costs and benefits of delayed construction. This failure is contrary to the guidelines of the CEQ which state: “ * * * Sufficient analysis of such alternatives and their costs and impact on the environment should accompany the proposed action through the agency review process in order not to foreclose prematurely options which might have less detrimental effects.” Interim Guidelines § 7(a) (iii), supra. Accord, Guidelines § 6(a)(iv), supra. Here, neither agency decision-makers, such as the Chief of Engineers or the Secretary of the Army, nor the Congress were presented in the impact study with sufficient information to make an intelligent decision about proceeding with the project or awaiting the effectuation of a mitigation plan. Thus, the statement did not insure that the option of mitigation would not be prematurely foreclosed. In addition, we see no practical reason why the Corps could not have included in its final impact statement a thorough exploration of the possibility of mitigation in order to give decision-makers an opportunity to consider the possibility of delaying construction until a mitigation plan was put into effect. There is no suggestion that speed is of the essence in this project. It has already waited approximately twenty-five years. Furthermore, mitigation measures have been suggested by government agencies, at least since 1959. This is not a case where a previously unthought of or implausible alternative suddenly becomes practical because of the development of new sources of information or new technology. While the December 7 impact statement fails to meet the standard of detail required by NEPA in other respects besides the discussion of alternatives, we think it unnecessary to discuss these at the present time. Subsequent to the District Court’s decision in the present case, we decided Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 470 F.2d 289 (8th Cir. 1972), in which we approved the decision of Judge Eisele in the Cossatot case. We think that the opinions of Judge Eisele in that case, along with the current guidelines of CEQ and the Corps, provide sufficient guidance for the preparation of a new impact statement. JUDICIAL REVIEW OF SUBSTANTIVE MERITS We held in Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, supra at 397, that District Courts have an obligation to review substantive agency decisions on the merits .to determine if they are in accord with NEPA. The review is a limited one for the purpose of determining whether the agency reached its decision after a full, good faith consideration of environmental factors made under the standards set forth in §§ 101 and 102 of NEPA; and whether the actual balance of costs and benefits struck by the agency according to these standards was arbitrary or clearly gave insufficient weight to environmental factors. Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, supra. We caution, as we did in Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, supra at 300, that: “ * * 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.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The Corps concedes that a limited review is generally available but argues that review on the merits is not proper in this case because Congress appropriated money for the project after an impact statement was filed. The Corps reasons that the decision of Congress to fund the project under these circumstances makes the decision to complete the project a Congressional one not subject to review by the courts. We disagree. NEPA requires that construction projects be completed in accordance with its substantive provisions. An appropriation act cannot serve as a vehicle to change that requirement. Rule XXI of the House of Representatives is specific in this regard. It provides: “2. No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works and objects as are already in. progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order, * * (Emphasis added.) L. Deschler, Manual and Rules of House of Representatives, 92nd Congress, H.R. Doe.No.439, 91st Cong., 2nd Sess. 464-465 (1971). Moreover, the appropriation act for fiscal 1971 was accompanied by a Senate Report which stated in part; “The committee has received objections, based on environmental grounds, to many programs and projects for which funds are included in this bill. The objections are principally based on the failure of the agencies involved to file the five-point statement required by the National Environmental Policy Act of 1969. The agencies were given until June 1, 1970, to prepare their procedures for implementing that act. The committee has been informed that the required statements are in preparation. In most cases, the projects objected to have been under construction for some time. The fact that the committee has recommended funds in this bill does not exempt the construction agencies from complying with the provisions of that act as currently applicable.” (Emphasis added.) S.Rep. 91-118, 91st Cong., 2nd Sess. (1970). The appropriation acts for fiscal 1972 and 1973 were not accompanied by similar reports, but that fact is immaterial in the light of House Rule XXI, supra, and the general rule against repeal by implication. Thus, legislators voting for bills appropriating funds for this project had the right to assume that the project would be carried out in accordance with the substantive provisions of NEPA. Our conclusion that the District Court has an obligation to provide a substantive review here is supported by the decision of the United States Court of Appeals for the D.C. Circuit. Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 785 (D.C.Cir.1971). There, the Court stated: “ * * * There is, of course, nothing inconsistent with the adoption of appropriations and authorization measures on the pro tanto assumption of validity, while leaving any claim of invalidity to be determined by the courts. * * * ” (Emphasis added.) Our holding is not as broad as that of the D.C. Circuit in Seaborg. We simply hold that an appropriation act cannot change the requirements of NEPA. We recognize that Congress has the right to authorize projects and to exempt them from the provisions of NEPA, but Congress did not take such action here. No new authorization bill was passed after NEPA was enacted. The only authorization for the project was voted years before NEPA was passed. ALLEGED VIOLATIONS OF THE WATER BANK ACT OF 1970 AND THE FISH AND WILDLIFE COORDINATION ACT . The plaintiffs contend that the trial court erred in dismissing counts of the complaint which alleged violations of the above Acts. We do not agree. The Water Bank Act sets up a leasing program for the preservation of wetlands to be administered by the Agriculture Department. It does not purport to establish enforceable standards which must be followed by all government agencies in construction projects. The Fish and Wildlife Coordination Act, on the other hand, does require governmental agencies, including the Corps, to coordinate their activities so that adverse effect on fish and wildlife will be minimized. But as Judge Eisele said in Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749, 754 (E.D.Ark.1971) (the Cossatot case), if the Corps complies with NEPA in good faith, it will “automatically take into consideration all of the factors required by the Fish and Wildlife Act and it is not reasonable to require them to do both separately.” ALLEGED VIOLATION OF 33 U.S.C. § 701a The plaintiffs finally contend that the trial court erred in dismissing their fifth claim for relief which alleges that the Corps is violating 33 U.S.C. § 701a by proceeding with the project. Section 701a is a preamble to the Flood Control Act of 1936. It states: “ * * * ^he Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected. * * *” The complaint specifically alleges that the costs exceed the benefits for this project and that the lives of people would be adversely affected by the project’s completion. However, this project was authorized many years ago by Congress on the basis of its determination that the benefits of the project exceed the costs. We do not think that the statement of policy in § 701a can be used as a vehicle for continuing evaluation of the project by the courts. We point out, however, that the relief requested by the plaintiffs under § 701a is partially available under NEPA. To fully comply with NEPA, the Corps must reappraise the costs and benefits of the project in light of the policies of environmental protection found in NEPA. As we have stated, a decision to proceed with channelization is reviewable in the District Court to determine whether the actual balance of costs and benefits struck by the agency according to the standards of §§ 101 and 102 of NEPA was arbitrary or clearly gave insufficient weight to environmental factors. REMEDIES We remand this case to the District Court with instructions to it: (1) to require the Corps to submit a revised impact statement in accordance with the decision of Judge Eisele in the Cossatot case and in accordance with the current guidelines of CEQ and the Corps itself; (2) to retain jurisdiction of the matter to rule on the sufficiency of the new environmental impact statement if a prompt request for such review is made; (3) to review the agency decision in light of the arbitrary and capricious test if a prompt request for such review is made; and (4) to grant such injunctive relief as the court may feel is appropriate. Reversed and remanded. . 42 U.S.C. § 4321 et seq. . 16 U.S.C. §§ 1301-1311. . 16 U.S.C. § 662. . 64 Stat. 172. . Supplemental Appropriations Act of 1973, P.D. 92-607 (October 31, 1972) ; Public Works for Water and Power Development and Atomic Energy Commission Appropriation Act, 1973, 86 Stat. 621, approved August 25, 1972; Public Works for Water and Power Development and Atomic Energy Commission Appropriation Act, 1972, 85 Stat. 364, approved October 5, 1971. . The Council on Environmental Quality’s Interim Guidelines in effect when the Corps’ December 7 impact statement was prepared may be found at 35 Fed.Reg. 7390 (April 30, 1970). CEQ’s most recent guidelines may be found at 36 Fed. Reg. 7724 (April 23, 1971). The Corps’ guidelines in effect when the statement was prepared are found at E'C 1120-2-56 and appendixes (September 25, 1970). The Corps’ most recent guidelines may be found at ER 1105-2-507 (January 3, 1972) and appendixes. See, Environmental Guidelines for the Civil Works Program, November 23, 1970. The Corps states that while its December 7, statement does not comply with current standards for the preparation of an impact statement, it does comply with the standards in effect when this statement was prepared and should be evaluated by the latter standards. In our opinion, however, the December 7 statement is inadequate under either set of standards. . Those who have suggested that a mitigation plan should be formulated and included as part of the project are the Arkansas Game and Fish Commission, the Arkansas Soil and Water Conservation Commission, Dale Bumpers (Governor of Arkansas), the United States Department of Agriculture Forest Service, the Department of the Interior Fish and Wildlife Service, the Secretary of the Interior and the Arkansas Planning Commission. The December 7 impact study itself concludes that “[t]he most desirable alternative to the project as presently formulated would be the inclusion of additional features to prevent or mitigate fishery and wildlife losses.” The statement, however, states: “The alternative of modification of the project to provide additional mitigation measures is under active consideration. The District Engineer is proceeding with studies that will make a current assessment of the overall project effects on fish and wildlife habitat and will determine the extent additional measures for mitigation of such losses are needed which are beyond our present authorities.” . This alternative has been suggested by the Arkansas Game and Fish Commission, and the United States Department of the Interior. . This alternative was suggested by Leo Eisel, a professional water resource planner, in an affidavit submitted at trial. . This alternative was suggested by Leo Eisel. The United States Department of the Interior also suggested this alternative as part of a mitigation plan. . The December 7, 1970, impact statement states, with respect to these plans : “Four alternate plans consisting of various combinations of diversions, flood-ways, reservoirs, interceptor ditches and levees were studied in detail. One of these plans was recommended by the U. S. Fish and Wildlife Service as a means of reducing fish and wildlife losses. None of the plans were feasible, either from an economic or engineering viewpoint.” . The Corps’ most recent guidelines recognize the importance of the impact statement : “1. General. Preparation of environmental statements will be based on considerations discussed in the CEQ Interim Guidelines and the detailed guidance to follow. These directions are intended to assure consistency of effort in preparing statements and are not proposed to induce unthinking uniformity or limit flexibility when preparing the statements. These statements have several levels of importance with reference to the decision-making process, Corps relations with the public, and internal project planning activities. A careful, objective detailing of environmental impacts, alternatives, and implications of a proposed project should give reviewers both within and outside the Corps insight into the particular trade-offs and commitments associated with the action. The general public, environmental action groups, trade and special interest associations, governmental agencies, and Congressional Committees will all expect the statements to be a valid source of information on project effects, as well as a reflection of how the agency views environmental factors and seeks to accommodate them. Since the statements will be made available to the public and may receive broad exposure in the media, it can be assumed that they will receive careful scrutiny. Most importantly, preparation of the statements should cause systematic consideration of environmental impacts. An imaginative evaluation of alternatives and their implications should begin in the earliest stages of project formulation, with planners contemplating the criteria and range of information to be employed in preparation of final statements.” This is substantially in accord with the views expressed in EC 1120-2-56, App. B, Sec. 1, September 25, 1970. . These include the United States Secretary of the Interior, the regional office of the Fish and Wildlife Service (Bureau of Sport Fisheries and Wildlife), the Arkansas Planning Commission, the Arkansas Game and Fish Commission, and the Governor of Arkansas. . That plaintiffs’ fears may have a basis in fact is supported by the following colloquy before the District Court: “Q. [Mr. Palmer, attorney for the plaintiffs] Has the Memphis District of the Corps of Engineers ever, in fact, acquired any mitigation lands in respect of any of these other channelization projects? A. [Colonel Parish, Corps of Engineers] No, sir, we have not. “Q. Again, if you know, why is that? How did that come to pass? A. We obtained authorization for acquiring some 6,000 acres of wildlife habitat in the St. Francis Basin several years: ago. However, between the time we had selected the land for authorization and the time we received the authorization, the lands were cleared and under cultivation. * * * ” . As noted above, the Corps has prepared a draft impact statement relating to a proposed mitigation plan which would result in the acquisition of 30,000 acres. This proposal is still undergoing administrative review within the agency. Congress included a mitigation plan for the project in the Flood Control Act of 1972 (S. 4018). This Act was vetoed by President Nixon on October 27, 1972. . The opinions in the Cossatot case may be found at: Environmental Defense Fund v. Corps of Eng. of United States Army, 325 F.Supp. 728 (E.D.Ark.1971) ; Environmental Defense Fund, Inc. v. Corps of Eng. of United States Army, 325 F.Supp. 749 (E.D.Ark.1971) ; Environmental D. Fund, Inc. v. Corps of Eng. of United States Army, 342 F.Supp. 1211 (E.D.Ark.1972). . The Corps concedes, however, that if we find, as we do, that the impact statement is unsatisfactory, the case must be reversed and remanded in order for the Corps to prepare a new impact study even if Congressional funds had been appropriated. See, Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 785 (D.C. Cir. 1971) ; Environmental Defense Fund, Inc. v. Corps of Eng. of United States Army, supra at 325 F.Supp. 763. . Section 102(2) of NEPA requires all agencies of the federal government to consider environmental factors in reaching decisions. Senate Report 91-296, 91st Congress, 1st Session (1969), states in part: “1. * * * Virtually every agency of the Federal Government plays some role in determining how well the environment is managed. Vet, many of these agencies do not have a mandate, a body of law, or a set of policies to guide their actions which have an impact on the environment. * * * “Section 101 of S. 1075 rectifies this by providing a congressional declaration that it is the continuing policy and responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal planning and activities to the end that certain broad national goals in the management of the environment may be attained. «2. * * * But, if goals and principles are to be effective, they must be capable of being applied in action. S. 1075 thus incorporates certain ‘action-forcing’ provisions and procedures which are designed to assure that all Federal agencies plan and work toward meeting the challenge of a better environment.” (Emphasis added.) Mr. Henry M. Jackson, the principal Senate sponsor of NEPA, stated: “ * * * If an environmental policy is to become more than rhetoric, and if the studies and advice of any high-level, advisory group are to be translated into action, each of these agencies must be enabled and directed to participate in active and objective-oriented environmental management. Concern for environmental quality must be made part of every phase of Federal action.” (Emphasis added.) 115 Cong.Rec. 29087 (1969). The guidelines of the Council on Environmental Quality state: “4. Federal agencies included. Section 102(2) (C) applies to all agencies of the Federal Government with respect to recommendations or reports on proposals for (i) legislation and (ii) other major Federal actions significantly affecting the quality of the human environment. The phrase ‘to the fullest extent possible’ in section 102(2) (C) is meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency’s operations expressly prohibits or makes compliance impossible. (Section 105 of the Act provides that ‘The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.’) ” 36 Fed.Reg. 7724, et seq. (1971) (Emphasis added.) Congress has specifically indicated that the provisions of NEPA are applicable to construction agencies. See, S.Rep. 91-118, 91st Cong., 2nd Sess. (1970). In this case, flood control projects are under the jurisdiction of and are prosecuted by the Department of the Army with the supervision of the Chief of Engineers. 33 U.S.C. § 701b. The decisions of the Corps of Engineers figure importantly in the planning of flood control projects. See, 33 U.S.C. § 701, et seq. The project, which included Gillham Dam, was authorized according to the recommendations of the Corps. 72 Stat. 309 (1958). Before a dam is constructed or modified, its plans must be submitted to the Chief of Engineers and the Secretary of the Army, and approved by them. 33 U.S.C. § 401. Small flood control and shore restoration projects may be undertaken by the Corps without specific Congressional approval. 33 U.S.C. § 426g; 33 U.S.C. § 701s. We see no reason why its action should not be as subject to judicial review as that of any other agency. In making recommendations, evaluating plans and constructing projects, the Corps must give appropriate weight to all environmental values. The Corps itself has recognized this, stating: “ * * * In formulating plans for Federal water resource development or management activities, impact on the environment will be fully considered from the initiation of preauthorization planning through postauthorization planning and design, construction, and operation management. * * * * * * * 'At “ * * * During Corps of Engineers project planning and the related decision making process, a systematic and interdisciplinary approach will be utilized to insure that proper weighing and balancing has been made of environmental impacts together with the technical economic and social aspects as well as all other considerations affecting the total public interest. * * * ” ER 1105-2-507, §§ 4, 4b, January 3, 1972. See, Environmental Guidelines for the Civil Works Program of the Corps of Engineers, November, 1970. . The commentary to this part of Rule XXI states that “the rule was first adopted in 1837, to prevent delay of appropriation bills because of contention over proj)-ositions of legislation.” L. Deschler, Manual and Rules of House of Representatives, 92nd Congress, H.R.Doe.No. 439, 91st Cong., 2nd Sess. 464-465 (1971). The commentary also points out that: “The provision of the rule forbidding in any general appropriation bill a ‘provision changing existing law’ is construed to mean the enactment of law where none exists, or a proposition for repeal of existing law. * * * ” 7lid. at 470. Rule 16.4 of the Standing Rules of the Senate contains an analogous provision: “No amendment which proposes general legislation shall be received to any general appropriation bill, nor shall any amendment not germane or relevant to the subject matter contained in the bill be received; nor shall any amendment to any item or clause of such bill be received which does not directly relate thereto; nor shall any restriction on the expenditure of the funds appropriated which proposes a limitation not authorized by law be received if such restriction is to take effect or eease to be effective upon the happening of a contingency; and all questions of relevancy of amendments under this rule, when raised, shall be submitted to the Senate and be decided without debate; and any such amendment or restriction to a general appropriation bill may be laid on the table without prejudice to the bill.” G. Harrison & J. Coder, Senate Manual, S. Doc. No. 92-1, 92nd Cong., 1st Sess. 18 (1971). The Senate rule differs from the House rule in that it is limited to amendments to appropriation bills. This limitation exists apparently because traditionally the House has assumed the power to originate such bills. Congressional Quarterly, Guide to the Congress of the United States, 185-186 (1971). . See, Committee for Nuclear Responsibility v. Seaborg, supra at 463 F.2d 785. . It appears that work on the initial phase of channelization is almost complete. No future contracts for the proj-eet will be awarded until 1974. We, therefore, leave to the trial court the necessity for injunctive relief.

Audubon Soc'y of Greater Denver v. U.S. Army Corps of Eng'rs

BRISCOE, Circuit Judge. This is an Administrative Procedure Act challenge to the Army Corps of Engineers' approval of a project to store more water in the Chatfield Reservoir in Colorado. Petitioner Audubon Society of Greater Denver sought review of the Corps' decision, arguing that the Corps' review and approval of the project failed to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321 - 4370m-12, and the Clean Water Act, 33 U.S.C. §§ 1251 - 1388. The district court denied the petition for review after concluding that the Corps' decision was not arbitrary or capricious. Audubon also moved to supplement the administrative record. The district court denied the motion because it found that the administrative record sufficiently informed the Corps' analysis. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM. I A. Statutory Background In this case, we must decide whether the Corps complied with NEPA and the CWA when it approved the Chatfield Storage Reallocation Project, which will allow certain water providers in the Denver metropolitan area to store 20,600 acre-feet of water in the Chatfield Reservoir. "In NEPA, Congress codified rules designed to focus both agency and public attention on the environmental effects of proposed actions and thereby facilitate informed decisionmaking by agencies and allow the political process to check those decisions." WildEarth Guardians v. U.S. Fish & Wildlife Serv. , 784 F.3d 677, 690 (10th Cir. 2015) (quotation marks and alteration omitted). "NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires the Corps to "include" an Environmental Impact Statement "in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). An EIS "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." 40 C.F.R. § 1502.1. At issue in this appeal is whether the Corps adequately addressed and discussed the identified reasonable alternatives. The discussion of alternatives "is the heart of the" EIS. Id. § 1502.14. "[I]t should 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." Id. The Corps was required to: (a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. (b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits. (c) Include reasonable alternatives not within the jurisdiction of the lead agency. (d) Include the alternative of no action. (e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference. (f) Include appropriate mitigation measures not already included in the proposed action or alternatives. Id. As long as "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 , 490 U.S. at 350, 109 S.Ct. 1835. "Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed-rather than unwise-agency action." Id. at 351, 109 S.Ct. 1835 (footnote omitted). Unlike NEPA, which focuses on process, the CWA imposes substantive requirements on the Corps. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs , 702 F.3d 1156, 1166 (10th Cir. 2012). With certain exceptions, the CWA prohibits the "discharge of dredged or fill material into the" "waters of the United States." 33 U.S.C. §§ 1311(a), 1344(a), 1362(7). But the Corps "may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a). This permitting process is governed by the Section 404(b)(1) Guidelines, which are contained in Part 230 of Title 40 of the Code of Federal Regulations. 40 C.F.R. §§ 230.1 - 230.98. When the Corps decides whether it may itself "discharge[ ] ... dredged material or fill material," it does not issue a permit, "but does apply the 404(b)(1) [G]uidelines and other substantive requirements of the CWA and other environmental laws." 33 C.F.R. § 335.2. The 404(b)(1) Guidelines state that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2). In other words, the Corps may authorize a proposed discharge when it is the least environmentally damaging practicable alternative ("LEDPA"). Id. § 230.10(a). B. Factual Background In 1973, the Corps constructed the Chatfield Reservoir by erecting a dam across the South Platte River southwest of Denver. PAA0643. The Reservoir was primarily built for flood control, but Congress also authorized the Corps to develop recreational facilities at the Reservoir. PAA0643-44. In 1974, the Corps leased the land surrounding the Reservoir to the State of Colorado, which opens the area to the public as Chatfield State Park. PAA0644. Chatfield State Park is currently one of the most popular state parks in Colorado. PAA0628-29. In 1986, Congress authorized the Corps to study whether it would be feasible and economically justifiable to reallocate part of Chatfield Reservoir's storage capacity from flood control to municipal, industrial, and agricultural water storage. See Water Resource Development Act of 1986, Pub. L. No. 99-662, § 808, 100 Stat. 4082, 4186. The resulting study predicted that, even taking into account water conservation programs, water providers will need approximately 50% more water in 2050 because of population growth in the Denver metropolitan area. PAA0629-30, 0656, 0658. Under current conditions, absent the development of additional water supply, the Denver metropolitan area will have "approximately 90,000 acre-feet of unmet [water] needs" in 2050. PAA0658. In 2009, Congress "authorized ... modifications of the ... [Chatfield] Reservoir, ... and any required mitigation," to accommodate water storage. Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, § 116, 123 Stat. 524, 608. Following additional study, a group of water providers who supply water to municipal, industrial, and agricultural users in the Denver metropolitan area proposed the Reallocation Project at issue in this appeal. PAA0665. The Reallocation Project allows the water providers to store 20,600 acre-feet of water in Chatfield Reservoir. PAA0665. The immediate practical effect of the Reallocation Project is that the maximum water level in the Reservoir will rise by 12 feet, flooding 587 acres of Chatfield State Park. PAA0764. The flooded area includes various recreation facilities and sensitive environments. PAA0765, 0827-30. Because of these effects, the water providers also proposed two plans-one to relocate the recreation facilities and the other to mitigate environmental damage. PAA0828-40. As proposed, the recreation relocation and environmental mitigation plans involved the discharge of dredged and fill material into wetlands near Chatfield Reservoir. PAA0840. As part of its review of the Reallocation Project, the Corps prepared an Environmental Impact Statement. PAA0627. The EIS states that "the main problem" addressed by the Reallocation Project is the "increasing water demand in the Denver Metro area that exceeds available water supplies." PAA0628. Accordingly, [t]he purpose and need [of the Reallocation Project] is to increase availability of water, providing an additional average year yield of up to approximately 8,539 acre-feet of municipal and industrial ... water, sustainable over the 50-year period of analysis, in the greater Denver Metro area so that a larger proportion of existing and future water needs can be met. PAA0628. The Corps also noted that any version of the Reallocation Project ultimately approved would need to comply with the CWA, mitigate any environmental damage caused by the Reallocation Project, and preserve recreation opportunities for Chatfield State Park visitors. PAA0662-63. The Corps initially examined thirty-eight alternatives for securing additional water supply for the Denver metropolitan area. PAA0667. These strategies fell into seven categories: increased water conservation, agricultural transfers, importation of water, development of new water storage facilities, storage of additional water at existing reservoirs, increased use of surface water and groundwater, and increased water recycling. PAA0667-71. The Corps used four criteria to compare these potential alternatives: "[a]bility to meet purpose and need," "[c]ost," "[l]ogistics and technology," and "[e]nvironmental impacts (including significance and ability to mitigate)." PAA0633-34. After its initial analysis, the Corps concluded that some of the original thirty-eight alternatives did not warrant further study. Among those alternatives abandoned by the Corps were increased water conservation, development of gravel pit storage upstream from Chatfield Reservoir, and the purchase of water storage capacity at the Rueter-Hess Reservoir. PAA0673, 0689. After briefly explaining its decision not to further analyze thirty-four alternatives, the Corps considered the remaining four alternatives in detail. First, the Corps considered Alternative 1, the "No Action Alternative," which meant the Reallocation Project would not proceed and water providers would have to look to other options to secure additional water. PAA0693. "The main feature of the No Action Alternative is the development of other alternative surface storage units to contain surface water supplies of the same approximate yield of the Chatfield Reservoir storage reallocation project." PAA0693. Specifically, the No Action Alternative assumed that the water providers would store surface water in a newly-constructed Penley Reservoir and downstream gravel pits. PAA0693. The Corps next considered Alternative 2, in which the water providers would meet future demand using groundwater and surface water stored in downstream gravel pits. PAA0714-15. The gravel pits in Alternative 2 would be developed in the same way as in Alternative 1. PAA0715. But in Alternative 2, instead of building Penley Reservoir, the water providers would also rely on groundwater to serve their customers. PAA0715. The Corps then evaluated Alternative 3, which is the Reallocation Project that was ultimately selected. PAA0715-16. Under Alternative 3, the water providers could store 20,600 acre-feet of water in Chatfield Reservoir. PAA0715. Increasing the amount of water in Chatfield Reservoir would raise the water level by 12 feet. PAA0715. "No new infrastructure would be needed at Chatfield by any water provider." PAA0716. Finally, the Corps examined Alternative 4, which would allow water providers to store 7,700 acre-feet of water in Chatfield Reservoir. PAA0716-17. Alternative 4 would increase the water level in the reservoir by five feet. PAA0717. To meet additional demand, the water providers would also rely on groundwater and surface water stored in downstream gravel pits (again developed in the same way as in Alternative 1). PAA0717. After comparing these four alternatives, the Corps chose Alternative 3. PAA0819. The Corps concluded that "Alternative 3 maximizes [National Economic Development] benefits" by "minimiz[ing] the cost of supplying water" and "best meets the water supply needs of the water providers." PAA0819. The Corps also concluded that Alternative 3 is ... the Least Environmentally Damaging alternative because: 1) the environmental impacts of Alternative 3 at Chatfield can all be fully mitigated; 2) Alternative 3 does not result in the drying up of any farmland or include the use of non-renewable [groundwater]; and 3) Alternative 3 is the plan most consistent with the Corps' seven [Environmental Operating Principles]. PAA0819. While conducting the NEPA analysis, the Corps remained mindful that the alternative ultimately chosen would need to comply with the CWA. PAA0663. Alternative 3 includes "the modification of recreation facilities and certain environmental mitigation activities [that] would involve the discharge of dredge and fill material into waters of the United States, including wetlands." PAA0840. "These discharge activities would involve an estimated temporary impact to about 5.5 acres of wetlands and a loss of about 6.9 acres of wetlands." Id. In the Corps' opinion, the "[c]umulative impacts of the proposed dredge and fill activities on the aquatic ecosystem are expected to be small." PAA0842. The Corps also appended a separate analysis of the dredge and fill discharge associated with the Reallocation Project. PAA1072-1101. As part of that analysis, the Corps considered whether it could relocate the recreation facilities and mitigate environmental damage without discharging dredge or fill. PAA1094, 1097. The Corps concluded that, while it was possible to avoid discharging dredge or fill, doing so "would result in a greater area of net disturbance and environmental impact," PAA1095; prevent the Corps from fully replacing the recreational facilities affected by plan; and "complicate the construction, maintenance, and reliability of the [environmental] mitigation," PAA1098. Because of these complications, the Corps instead modified the recreation relocation and environmental mitigation plans to "avoid[ ] and minimize[ ] the discharge of fill material ... to the maximum extent practicable while still meeting the objective[s] of providing recreation facilities that maintain the existing recreational experience," PAA1097, and "fully mitigating the [environmental] impacts," PAA1098. In May 2014, the Corps issued its Record of Decision approving the Reallocation Project. PAA1144-45. In October 2014, Audubon sought review of the Corps' decision. The Colorado Department of Natural Resources and the water providers who seek to store water in Chatfield Reservoir intervened in support of the Corps' decision. PAA0006. Audubon moved to supplement the administrative record. PAA0131-54. The district court denied the motion because it found that the administrative record was sufficient for the Corps' analysis. PAA0277-88. In December 2017, the district court concluded that the Corps did not act arbitrarily or capriciously when approving the Reallocation Project and affirmed the Corps' decision. PAA0500-38. Audubon timely filed a notice of appeal. PAA0543-45. Audubon then moved in this Court for an injunction pending appeal because the Corps has already begun to implement the Reallocation Project. The motion was denied. Audubon subsequently filed a motion to expedite consideration of this appeal because of the ongoing construction at Chatfield Reservoir. The motion was denied as premature because the appeal was not yet fully briefed. After filing its reply brief, Audubon again moved for expedited consideration. The motion was denied insofar as it sought a special sitting to hear the appeal, and deferred insofar as it sought expedited consideration after oral argument. II Audubon challenges the Corps' compliance with NEPA and the CWA. We review the district court's decision de novo and "the Corps' compliance with NEPA and the CWA pursuant to the Administrative Procedure Act." Greater Yellowstone Coal. v. Flowers , 359 F.3d 1257, 1268 (10th Cir. 2004). Under the APA, we will not set aside the Corps' decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The APA's arbitrary and capricious standard is a deferential one; administrative determinations may be set aside only for substantial procedural or substantive reasons, and the court cannot substitute its judgment for that of the agency." Utahns for Better Transp. v. U.S. Dep't of Transp. , 305 F.3d 1152, 1164 (10th Cir. 2002). A. NEPA NEPA requires the Corps to prepare an EIS for a "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). When an agency prepares an EIS, it must "[r]igorously explore and objectively evaluate all reasonable alternatives" to the project. 40 C.F.R. § 1502.14(a). But "[a] rule of reason applies to an ... agency's choice of alternatives to include in its analysis." WildEarth Guardians v. Nat'l Park Serv. , 703 F.3d 1178, 1183 (10th Cir. 2013) (quotation marks omitted). "[A]gencies are not required to consider alternatives they have in good faith rejected as too remote, speculative, or impractical or ineffective." Id. (quotation marks and ellipsis omitted). "Alternatives that do not accomplish the purpose of an action are not reasonable, and need not be studied in detail by the agency." Id. (quotation marks omitted). Moreover, "an agency has wide discretion in defining its objectives and in determining which alternatives meet those objectives." W. Watersheds Project v. Bureau of Land Mgmt. , 721 F.3d 1264, 1275-76 (10th Cir. 2013). When an agency decides to exclude an alternative from detailed study, it only needs to " 'briefly discuss the reasons' for eliminating [the] unreasonable alternative[ ] from [the] EIS." WildEarth , 703 F.3d at 1183 (quoting 40 C.F.R. § 1502.14(a) ). Audubon argues that the Corps dismissed three alternatives without sufficient explanation. Aplt. Br. 44. Specifically, Audubon faults the Corps for failing to examine "[e]nhanced water conservation measures," which "go beyond the standard methods already being used by water providers." Aplt. Br. 45-50. Audubon also maintains that the Corps erred when it excluded upstream gravel pits from further consideration because they offered sufficient capacity for the Reallocation Project. Aplt. Br. 50-53. Finally, Audubon asserts that the water providers could have purchased storage capacity at the Rueter-Hess Reservoir instead of expanding the Chatfield Reservoir. Aplt. Br. 53-55. We hold that the Corps' decision not to further analyze these three alternatives was not arbitrary or capricious. First, the Corps considered increased water conservation at length and concluded that "water conservation is not an equivalent practicable alternative to the proposed project" because the "shortages of sustainable water supplies faced by the water providers will not be resolved by water conservation measures alone." PAA0674. Instead, the Corps' subsequent analyses assumed that "[c]urrent water conservation practices constitute an independent parallel action" to the Reallocation Project. PAA0679. As the Corps explained in response to a public comment, "[w]ater conservation goals and amounts were considered when determining the amount of water needed for future use." PAA0971. Therefore, the Corps "view[ed] each alternative [discussed in the EIS] as also including the various conservation programs as components." PAA0971. The Corps concluded that, while "conservation can delay the timing of the need for additional supplies," "it does not in itself eliminate the need for additional supplies." PAA0673. Contrary to Audubon's suggestion, Aplt. Br. 46-50, Davis v. Mineta , 302 F.3d 1104, 1122 (10th Cir. 2002), abrogated on other grounds by Dine Citizens Against Ruining Our Env't v. Jewell , 839 F.3d 1276 (10th Cir. 2016), does not indicate that the Corp's analysis was inadequate. In Davis , the agency's NEPA analysis was deficient because it "summarily rejected" alternatives that could not, "standing alone," achieve the project's goals. 302 F.3d at 1120. The Department of Transportation made "no effort" to consider whether these alternatives, when analyzed "in conjunction" with each other, could achieve the project goals. Id. at 1121. The Corps' analysis here is far more extensive. The Corps thoroughly described the current status of the water providers' conservation plans and explained that, because the future unmet water need is so great, the water providers will "develop even more stringent water conservation measures," even after the Reallocation Project is completed. PAA0673-0679, 0944-0961. This discussion sufficiently explained why the Corps did not consider enhanced water conservation to be a reasonable alternative worthy of further analysis, which is all that NEPA requires. See WildEarth , 703 F.3d at 1183-87. Second, the Corps adequately explained why upstream gravel pits did not merit further discussion. Upstream gravel pits were "eliminated from further consideration due to limited storage capacity and the logistical difficulties of combining reservoirs to meet the storage requirements of the project." PAA0683. The upstream gravel pits had 5,490 acre-feet of capacity spread across three reservoirs, which was less than the 8,539 acre-feet sought by the Reallocation Project. PAA0669. On the other hand, downstream gravel pits, which the Corps did analyze at length, would have provided 7,835 acre-feet of storage and presented fewer logistical complications. PAA0700. Compared to the upstream gravel pits, the downstream gravel pits were closer to "existing water supply system[s]," which "minimize[d] connection costs" for the water suppliers. PAA0700. Given that the upstream and downstream gravel pits were similar alternatives, but the downstream option offered more storage at a lower cost, the Corps' decision to exclude upstream gravel pits as an alternative was neither arbitrary nor capricious. Prairie Band Pottawatomie Nation v. Fed. Highway Admin. , 684 F.3d 1002, 1011 (10th Cir. 2012) ("[A]n agency need not consider an alternative unless it is significantly distinguishable from the alternatives already considered." (quotation marks omitted) ). Notwithstanding the Corps' reasoning, Audubon urges us to conclude that the Corps' analysis was arbitrary and capricious because, after the Corps finalized the EIS, an upstream gravel pit owner informed the Corps that a "preliminary" report showed that the pit could "hav[e] the capacity for 11,000 acre-feet of storage when expanded." PAA1105. This new information does not render the Corps' decision arbitrary or capricious because the information was not provided to the Corps until after the final EIS was issued. Prairie Band , 684 F.3d at 1012-13. Third, the Corps sufficiently explained why storing water at the Rueter-Hess Reservoir was not a viable alternative to the Reallocation Project. The Corps observed that the Rueter-Hess "[w]ater allocation [had been] subscribed and permitted under a separate planning action" carried out by the Corps. PAA0670. The Corps further noted that several water providers already owned the "storage capacity" at the Rueter-Hess Reservoir. PAA0670. Though the Rueter-Hess Reservoir had recently been expanded, the capacity was "anticipated to primarily meet the needs of" the current storage owners, who "ha[d] not made any additional [storage] capacity available for sale" since 2012. PAA0684. The Corps explained that storing additional water at Rueter-Hess was not a practicable alternative because there was no available storage in that reservoir. This analysis was not arbitrary or capricious. See WildEarth , 703 F.3d at 1183-87. B. CWA The CWA authorizes the Corps to "issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). Regulations implementing the CWA state that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2). The Corps interpreted the phrase "practicable alternative to the proposed discharge" to limit the scope of its CWA alternatives analysis to those portions of the Reallocation Project that caused the discharge of dredge and fill. Aple. Br. 27. The Corps reasoned that the entire Reallocation Project could be accomplished without the discharge of dredge and fill because (1) increasing the water level in Chatfield Reservoir causes no discharge and (2) it was possible to "totally avoid all discharge of fill material" when relocating the recreation facilities and mitigating environmental damage. PAA1074, 1095. But when the water providers actually proposed the recreation relocation and environmental mitigation plans, each plan called for the discharge of dredge and fill. PAA1094-98. Because the Corps did not consider these proposed discharges to be integral to the Reallocation Project-i.e., the Corps could have approved the Reallocation Project without allowing the discharge of dredge and fill-the Corps limited its CWA analysis to the water providers' recreation relocation and environmental mitigation plans. PAA0840-42, 1072-1101. Audubon disagrees with the Corps' interpretation of 40 C.F.R. § 230.10(a). Audubon argues that the Corps should have used the 404(b)(1) Guidelines to compare the four NEPA alternatives to the Reallocation Project, not just the alternatives to the recreation relocation and environmental mitigation plans. Aplt. Br. 28-30. According to Audubon, the suggestion in § 230.10(a)(2) that alternatives be considered "in light of overall project purposes" means that the CWA analysis should focus on the project as a whole, not just "the proposed discharge." Aplt. Br. 28-30. Therefore, Audubon argues that the Corps improperly segmented the Reallocation Project when it analyzed alternatives to the recreation relocation and environmental mitigation plans without accounting for the environmental impacts of the rest of the Reallocation Project. Aplt. Br. 28-30. Resolving this dispute involves two questions. See Biodiversity Conservation All. v. Jiron , 762 F.3d 1036, 1062-69 (10th Cir. 2014). The first asks whether the Corps correctly interpreted its own regulation. Id. at 1062. The second asks whether the Corps "compl[ied] with its own interpretation." Id. at 1069. We address each question in turn. When deciding whether an agency correctly interpreted its own regulations, "we ... determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Id. at 1062 (quotation marks omitted). If so, we apply the regulation's unambiguous meaning. Id. But "[i]f the meaning is ambiguous, we defer to [the] agency's interpretation ... , even when that interpretation is advanced in a legal brief, unless the agency's interpretation is plainly erroneous or inconsistent with the regulation." Id. (quotation marks and citations omitted). "An agency's interpretation need not be the only possible reading of a regulation-or even the best one-to prevail." Id. (quotation marks and alteration omitted). Section 230.10(a) does not plainly and unambiguously define the scope of the Corps' CWA analysis. Whereas § 230.10(a) is narrowly focused on "the proposed discharge," § 230.10(a)(2) instructs the Corps to take into account the "overall project purposes." The Corps proposes an interpretation of § 230.10(a) in which the scope of its CWA analysis is determined by the relationship between the overall project and the proposed discharge. Under the Corps' interpretation, when the proposed discharge is incidental to the completion of the overall project, the Corps' analysis must only address alternatives to the proposed discharge. The Eighth and Ninth Circuits have affirmed the issuance of dredge and fill permits when the Corps employed a similar interpretation of § 230.10(a). See Nat'l Wildlife Fed'n v. Whistler , 27 F.3d 1341, 1345-46 (8th Cir. 1994) (reasoning that the Corps was faced with "two severable projects" where one "would proceed even without" the § 404 permit); Sylvester v. U.S. Army Corps of Eng'rs (Sylvester II ), 882 F.2d 407, 410-11 (9th Cir. 1989) ("[A]n alternative site does not have to accommodate components of a project that are merely incidental to the applicant's basic purpose."). As Audubon notes, the Corps' interpretation of § 230.10(a) could incentivize permit applicants to improperly segment their projects to minimize apparent environmental damage. Aplt. Br. 32-34. But we have previously addressed similar concerns by explaining that the Corps can only consider an applicant's "legitimate" objectives when defining the scope of its CWA analysis. Greater Yellowstone , 359 F.3d at 1269-70 (citing Sylvester II , 882 F.2d at 409, and Whistler , 27 F.3d at 1346 ). "[A]n applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Whistler , 27 F.3d at 1346 (quoting Sylvester II , 882 F.2d at 409 ). In addition to finding support in prior case law, the Corps' interpretation of § 230.10(a) is supported by other parts of the 404(b)(1) Guidelines. The Corps is "instruct[ed] ... to 'recognize the different levels of effort that should be associated with varying degrees of impact [from the proposed discharge] and require or prepare commensurate documentation.' " Greater Yellowstone , 359 F.3d at 1271 (quoting 40 C.F.R. § 230.6(b) ). "The level of documentation should reflect the significance and complexity of the discharge activity." 40 C.F.R. § 230.6(b). Though the Corps must always identify the LEDPA, "the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities." Greater Yellowstone , 359 F.3d at 1271 (quoting 40 C.F.R. § 230.10 ). These provisions support the Corps' interpretation of § 230.10(a) because they instruct the Corps to consider the scale of a proposed discharge when applying the 404(b)(1) Guidelines. Other provisions of the 404(b)(1) Guidelines similarly confirm that the Corps' CWA and NEPA analyses can differ in scope. Audubon correctly argues, Aplt. Br. 42, that "the analysis of alternatives required for NEPA environmental documents[ ] ... will in most cases provide the information for the evaluation of alternatives under" the 404(b)(1) Guidelines. 40 C.F.R. § 230.10(a)(4). But the Guidelines also state that, "[o]n occasion, these NEPA documents may address a broader range of alternatives than required to be considered under [the CWA] or may not have considered the alternatives in sufficient detail to respond to the requirements of" the 404(b)(1) Guidelines. Id. Because the Corps' interpretation of § 230.10(a) -that its analysis need only address alternatives to the proposed discharge when the proposed discharge is incidental to the completion of the overall project-finds support in case law and other parts of the 404(b)(1) Guidelines, its interpretation is not "plainly erroneous or inconsistent with the regulation." Biodiversity Conservation All. , 762 F.3d at 1068-69. Accordingly, we now consider whether the Corps complied with its own interpretation of § 230.10(a). We conclude that the Corps complied with § 230.10(a) because it reasonably found that it could approve the Reallocation Project without allowing the discharge of dredge and fill, PAA1095-97, such that it was appropriate for the Corps to confine its CWA analysis to the recreation relocation and environmental mitigation plans, see Whistler , 27 F.3d at 1345-46 ; Sylvester II , 882 F.2d at 410-11. The Corps explained in the EIS that it was "feasible" to complete the recreation relocation and environmental mitigation plans without discharging dredge and fill. PAA1095-96. As part of its analysis, the Corps explained how the plans could be amended to avoid the discharge of dredge and fill. PAA1095-96. Potential changes included moving "recreational facilities ... farther from the reservoir," PAA1135, shortening culverts, PAA1138, and positioning "stilling basins ... outside of wetlands," PAA1138. Audubon disputes the Corps' conclusion, but provides no reasoned basis to doubt the Corps' explanation that dredge and fill could be avoided if the recreation facilities and mitigation activities were moved farther from the wetlands. Aplt. Reply Br. 7 n.2; PAA1095-96. Audubon does not suggest that the Corps defined the objectives of the recreation relocation and environmental modification plans to circumvent the CWA, nor is there any indication in the record of such gamesmanship. The objectives of these plans were, respectively, "providing recreation facilities that maintain the existing recreational experience" and "fully mitigating the impacts to wetlands, riparian habitat, Preble's habitat, and bird habitat impacted by the [Reallocation] Project." PAA1097-98. The Corps repeatedly noted throughout the EIS that these were also objectives of the Reallocation Project. PAA0649, 0661, 0663. The objectives are also rooted in the Congressional authorization of the Reallocation Project. See § 116, 123 Stat. at 608 ("authoriz[ing] ... modifications of the facility (Chatfield Reservoir, Colorado), and any required mitigation which results from implementation of the project"). Most importantly, the Corps' definition of the objectives did not "preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Whistler , 27 F.3d at 1346 (quoting Sylvester II , 882 F.2d at 409 ). Even after the Corps limited its analysis to the recreation relocation and environmental mitigation plans, it sufficiently analyzed the alternatives and identified the LEDPA. During its CWA analysis, the Corps considered the plans as originally proposed by the water providers, as well as alternatives that would have involved no discharge of dredge or fill. "While [the no discharge] approach [wa]s ... feasible," the Corps concluded that "it would result in a greater area of net disturbance and environmental impact, and a significant reduction of the amount of desired in-kind replacement of existing recreational amenities and experiences." PAA1095. The no discharge approach was also more expensive. PAA1096. The Corps settled on a compromise alternative that "would involve an estimated temporary impact to about 5.5 acres of wetlands and a loss of about 6.9 acres of wetlands." PAA0840. As approved, the recreation relocation and environmental mitigation plans "avoid[ ] and minimize[ ] the discharge of fill material" "to the maximum extent practicable" while still achieving the Corps' objectives. PAA1097-98. The Corps explained that, as a result, the "[c]umulative impacts of the proposed dredge and fill activities on the aquatic ecosystem are expected to be small." PAA1100. According to the EIS, relocating the recreation facilities "would have little effect on the aquatic ecosystem due to limited dredge and fill footprints." PAA1100. The Corps also found that the environmental mitigation would not "impact[ ] ... long-term water quality or the aquatic ecosystem" and would cause "the benefit of improved sediment erosion control." PAA1100. Moreover, the negative impacts to wetlands will themselves "be fully mitigate[d]." PAA1100. Therefore, the Corps' decision to approve the recreation relocation and environmental mitigation plans, as modified to reduce dredge and fill, was not arbitrary or capricious. C. Motion to Supplement the Record "We review a district court's determination of whether or not to exclude extra-record evidence for abuse of discretion." Citizens for Alts. To Radioactive Dumping v. U.S. Dep't of Energy , 485 F.3d 1091, 1096 (10th Cir. 2007). "[J]udicial review of agency action is normally restricted to the administrative record, [but] we have recognized that consideration of extra-record materials is appropriate in extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record." Lee v. U.S. Air Force , 354 F.3d 1229, 1242 (10th Cir. 2004) (quotation marks omitted). "[W]here, as is often the case in the NEPA context, we are faced with an agency's technical or scientific analysis, an initial examination of the extra-record evidence ... may illuminate whether an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug." Id. (quotation marks and alteration omitted). Audubon argues that the district court abused its discretion by denying the motion to supplement the record because the administrative "record lacks documentation required to determine if the Corps' dismissal of Rueter-Hess Reservoir and enhanced water conservation measures ... was justified." Aplt. Br. 57. Audubon claims that consideration of a water conservation survey was necessary for the Corps to determine whether enhanced water conservation was a viable alternative to the Reallocation Project. Aplt. Br. 58 (referring to PAA0201). Audubon also claims that a report on a water recycling program (Project WISE) was necessary for the Corps to properly evaluate the viability of storing additional water in the Rueter-Hess Reservoir. Aplt. Br. 59-61 (referring to PAA0225-41). The district court denied Audubon's motion because neither the survey of water conservation efforts nor the Project WISE information indicated that the Corps' NEPA analysis was deficient. PAA0284-87. The district court reasoned that water conservation efforts, including potential efforts to enhance water conservation in the future, were extensively discussed in the EIS. PAA0285-87. The district court also explained that the summary of Project WISE was addressed in the NEPA alternatives analysis when the Corps stated that Rueter-Hess did not have any storage capacity for sale and that Project WISE was an independent effort to increase water supply in the Denver metropolitan area. PAA0284-85, 0671, 0685, 0688. The district court did not abuse its discretion in denying Audubon's motion to supplement the record. Rather, it correctly noted that the EIS already incorporated sufficient information about water conservation in Colorado and the impact of Project WISE on regional water supply. Therefore, the extra record evidence would not have filled "gaps" or addressed "inadequacies" in the Corps' analysis. Lee , 354 F.3d at 1242. III Because the Corps' approval of the Reallocation Project was neither arbitrary nor capricious, and the district court's denial of Audubon's motion to supplement the record was not an abuse of discretion, we AFFIRM. Audubon's motion for an expedited decision is DENIED as moot. Fill material, which would be deposited in certain areas of wetlands around Chatfield Reservoir to raise parts of the shoreline above the new high water line, would be excavated from five sites around Chatfield State Park. PAA1083-87. The surface water would be captured from above-ground streams or rivers, PAA0682, and groundwater would be pumped from underground aquifers, PAA0743-44. At oral argument, Audubon also argued that the Reallocation Project does not increase water supply for the Denver metropolitan area because the Reallocation Project has "zero dependable yield." Because this issue was not briefed by the parties, we asked them to file notices of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j). In the EIS, the Corps acknowledged that, under the Reallocation project, the water providers will store varying amounts of water from year to year because the water providers have relatively junior water rights. PAA0973, 1069. The water providers will store less in drought years and more in years when water is abundant. But these fluctuations are not caused by the Reallocation Project, but by the natural cycle of drought. As the Corps explained, "[b]ecause gravel pit or reservoir storage relies on junior surface water rights, the water supply for all alternatives, to some degree, would be unreliable during dry periods." PAA0813. The Corps also explained that Chatfield Reservoir is an attractive storage option because it sits on the South Platte River and can effectively capture excess water without new facilities. PAA0973. Therefore, Audubon has less raised a problem with the Reallocation Project than noted the challenge faced by water suppliers as they attempt to serve the growing needs of the Denver metropolitan area with erratic surface water availability. Audubon asks that we take judicial notice of the Parker Water and Sanitation District's website for "the fact that, at this time, Rueter-Hess Reservoir is only 1/3 full." Aplt. Reply Br. at 26 n.10. Even if the accuracy of this statement was sufficiently certain to warrant our taking judicial notice of it, the statement does not speak to the question of whether any of the storage capacity in the Reservoir is for sale. "Where the activity associated with a discharge [into] ... a special aquatic site ... does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not water dependent), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). Wetlands are a special aquatic site. Id. § 230.41. No party discusses whether the § 230.10(a)(3) presumption applies in this case, and it does not appear that the Corps explicitly determined whether the recreation relocation and environmental mitigation plans were water dependent. The district court noted this issue and concluded that the presumption was "not at issue" in this case. PAA0530. During the preparation of the EIS, there was debate within the Corps and with the Environmental Protection Agency about whether the Corps had adopted the correct interpretation of 40 C.F.R. § 230.10(a). PAA1056-66, 1152-1153, 1157-1164. After further discussion, the EPA became "comfortable with the approach taken by the Corps in the preliminary draft CWA § 404(b)(1) analysis." PAA1066. Because we "are empowered to review only an agency's final action," this internal debate does not render the Corp's ultimate interpretation arbitrary or capricious. Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citing 5 U.S.C. § 704 ). In Sylvester , a developer planned to build a resort on uplands and a golf course on wetlands. Sylvester II , 882 F.2d at 410-11. "The Corps believed that it had jurisdiction only over the wetlands and, accordingly, confined its review to the meadow where [the developer] intend[ed] to locate the golf course." Sylvester v. U.S. Army Corps of Eng'rs (Sylvester I ), 884 F.2d 394, 396 (9th Cir. 1989). In Whistler , a developer planned to build a housing development on uplands and provide water access to the development by dredging wetlands. 27 F.3d at 1345-46. The Corps analyzed the two components of the project separately because "the planned housing development site was located on uplands and therefore could proceed without a permit." Id. at 1345. Without citing any authority, Audubon suggests that the Corps should apply NEPA's anti-segmentation rule to its CWA analyses. Aplt. Br. 32-34. The anti-segmentation rule is designed "to prevent agencies from minimizing the potential environmental consequences of a proposed action (and thus short-circuiting NEPA review) by segmenting or isolating an individual action that, by itself, may not have a significant environmental impact." Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv. , 297 F.3d 1012, 1028 (10th Cir. 2002). But, as discussed previously, NEPA and the CWA have distinct analytical frameworks. See Hillsdale , 702 F.3d at 1165-66 (comparing an agency's obligations under NEPA and the CWA). Audubon argues that the same policy considerations motivate NEPA and the CWA, but this argument does not address the fact that Congress enacted two statutes, each with its own unique procedure. See Wyoming v. U.S. Dep't of Agric. , 661 F.3d 1209, 1239 (10th Cir. 2011) ("To impose upon the agency more stringent requirements than the legal framework requires, absent extremely compelling circumstances, would violate the well-settled principle articulated by the Supreme Court in Vermont Yankee that the formulation of procedure is to be basically left within the discretion of the agencies to which Congress has confined the responsibility for substantive judgments." (quotation marks omitted) (referring to Vermont Yankee Nuclear Power Plant v. Nat. Res. Def. Council , 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ) ).

Friends of the Santa Clara River v. U.S. Army Corps of Eng'rs

IKUTA, Circuit Judge: Under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, the U.S. Army Corps of Engineers (Corps) may issue permits authorizing the discharge of dredged or fill material into the navigable waters of the United States. In this case, we consider challenges to the Corps's issuance of a Section 404 permit to Newhall Land and Farming (Newhall Land), authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in northwestern Los Angeles County near Santa Clarita, California. The Santa Clarita Organization for Planning the Environment (SCOPE) and the Friends of the Santa Clara River (Friends) challenge the permit issuance under the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). We conclude that the Corps complied with the numerous requirements prescribed by each of these statutes, and we affirm. I We begin by reviewing the legal framework. A Under the CWA, the discharge of any pollutant (including dredged or fill material) to navigable waters is unlawful unless the discharge complies with various statutory requirements, including obtaining a permit issued by the Corps under Section 404 of the CWA, 33 U.S.C. § 1344 (a Section 404 Permit). 33 U.S.C. §§ 1311(a), 1362(6), (12) ; see also United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Section 404 of the CWA authorizes the Corps to "issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a) ; see also 33 C.F.R. § 325.2 (processing of applications). The term "navigable waters" means "the waters of the United States, including the territorial seas," 33 U.S.C. § 1362(7), which is further defined by regulation to include wetlands, 33 C.F.R. § 328.3(a)(3) (2014). When an applicant applies for a permit for a discharge to wetlands, the Corps evaluates whether to grant or deny the application under guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army and published in 40 C.F.R. part 230. See 33 C.F.R. § 320.2(f) ; see also 33 U.S.C. § 1344(b). These regulations, referred to as the Section 404(b)(1) Guidelines, or simply the Guidelines, provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences" except as otherwise specified. 40 C.F.R. § 230.10(a). That is, the Corps must analyze alternatives to the proposed discharge and "select the least environmentally damaging practicable alternative." Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs , 524 F.3d 938, 955 (9th Cir. 2008). The Guidelines further provide that "[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. § 230.10(a)(2). The term "practicable alternatives" includes "[a]ctivities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters" and "[d]ischarges of dredged or fill material at other locations in waters of the United States or ocean waters." 40 C.F.R. § 230.10(a)(1). In order to determine whether an alternative is practicable, "the Corps must first determine the 'overall project purpose.' " Jones v. Nat'l Marine Fisheries Serv. , 741 F.3d 989, 1002 (9th Cir. 2013) (quoting 40 C.F.R. § 230.10(a)(2) ). In defining the overall project purpose, "the Corps has a duty to consider the applicant's purpose," Sylvester v. U.S. Army Corps of Eng'rs , 882 F.2d 407, 409 (9th Cir. 1989), and "the objectives of the applicant's project," id. (quoting La. Wildlife Fed'n, Inc. v. York , 761 F.2d 1044, 1048 (5th Cir. 1985) (per curiam) ). "Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable." Id. (quoting La. Wildlife Fed'n , 761 F.2d at 1048 ). The permit applicant may not define the project purpose narrowly "in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Id. But when the applicant's stated purpose is "genuine and legitimate," the Corps may not reject it. Id. In determining the overall project purpose, the Corps will "normally accept decisions" by state, local, and tribal governments with respect to "zoning and land use matters," unless "there are significant issues of overriding national importance." 33 C.F.R. § 320.4(j)(2). Likewise, when the Corps approves or undertakes projects requiring the discharge of material into the waters of the United States, it must consider "officially adopted state, regional, or local land use classifications, determinations, or policies." 33 C.F.R. § 336.1(c)(11)(ii). In analyzing "practicable alternatives," the Corps must determine whether a project is "water dependent." A project that "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose" is "not 'water dependent.' " 40 C.F.R. § 230.10(a)(3). A project's "basic purpose (for determining water dependency) is distinct from the overall purpose (for determining practicable alternatives)." Del. Riverkeeper Network v. U.S. Army Corps of Eng'rs , 869 F.3d 148, 157 (3d Cir. 2017) (emphasis omitted). When a project's basic purpose is not water dependent, "practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). "[C]lassification of an activity as 'non-water dependent' does not serve as an automatic bar to issuance of a permit ... [it] simply necessitates a more persuasive showing than otherwise concerning the lack of alternatives." Sylvester , 882 F.2d at 409 (quoting La. Wildlife Fed'n, Inc. v. York , 603 F.Supp. 518, 527 (W.D. La. 1984), aff'd in part and vacated in part , 761 F.2d 1044 (5th Cir. 1985) ) (alterations in original). When the Corps recognizes that a project is not water dependent, considers a range of alternative sites for the project, and concludes that there are no practicable alternative sites available, the presumption is rebutted. Bering Strait Citizens , 524 F.3d at 947 ; see also Butte Envtl. Council v. U.S. Army Corps of Eng'rs , 620 F.3d 936, 945 (9th Cir. 2010) (holding that "the Corps applied the proper presumption and found that it had been rebutted" because "the Corps acknowledged that the proposed project was not water dependent" and reviewed "over a dozen alternative sites"). We then defer to the Corps's approval of an alternative. Bering Strait Citizens , 524 F.3d at 947. B Before issuing a permit allowing the discharge of dredge or fill materials into wetlands, the Corps must comply with NEPA, 42 U.S.C. §§ 4321 - 4370m-12 ; see 33 C.F.R. § 325.2(a)(4) and Appendix B. NEPA requires all federal agencies to consider the environmental impact of any "major Federal actions significantly affecting the quality of the human environment," and provide a detailed statement on "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and any "alternatives to the proposed action." 42 U.S.C. § 4332(C). The Corps's procedures for implementing NEPA include directions for preparing an environmental impact statement (EIS) for a decision on a permit application. See 33 C.F.R. §§ 230.13, 325.2(a)(4). If the Corps is the lead agency, 33 C.F.R. § 230.16(a) ; 40 C.F.R. § 1501.5, it must address the purpose and need of the project and consider reasonable alternatives, among other requirements. 33 C.F.R. § 325 app. B (9)(b)(4), (5). Because "NEPA does not provide substantive protections, only procedural ones," Conservation Cong. v. Finley , 774 F.3d 611, 615 (9th Cir. 2014), "our review is limited to whether the EIS contains 'a reasonably thorough discussion of the significant aspects of the probable environmental consequences,' " Nat. Res. Def. Council v. U.S. Dep't of Transp. , 770 F.3d 1260, 1271 (9th Cir. 2014) (quoting City of Carmel-by-the-Sea v. U.S. Dep't of Transp. , 123 F.3d 1142, 1150 (9th Cir. 1997) ). Although a court must "insure that the agency has taken a hard look at environmental consequences," a court 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, 49 L.Ed.2d 576 (1976) (quoting Nat. Res. Def. Council v. Morton , 458 F.2d 827, 838 (D.C. Cir. 1972) ) (internal quotation marks omitted). C The Corps must also comply with the ESA, 16 U.S.C. §§ 1531 - 44. Under the ESA, each federal agency must "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 endangered or threatened species. 16 U.S.C. § 1536(a)(2). Therefore, the Corps must review the permit application "for the potential impact on threatened or endangered species pursuant to section 7 of the Endangered Species Act." 33 C.F.R. § 325.2(b)(5). If the Corps determines that "the proposed activity may affect an endangered or threatened species or their critical habitat," it must "initiate formal consultation procedures with the U.S. Fish and Wildlife Service [ (FWS) ] or National Marine Fisheries Service" (NMFS). Id. Conversely, if the Corps "determines that the proposed activity would not affect listed species or their critical habitat, [it] will include a statement to this effect" in the public notice regarding the application for a permit, id. , and "the consultation requirements are not triggered," Pac. Rivers Council v. Thomas , 30 F.3d 1050, 1054 n.8 (9th Cir. 1994). After the Corps has completed its review, it will determine whether a permit should be issued and (if an EIS has been prepared) issue a record of decision (ROD). 33 C.F.R. § 325.2(a)(6). II We next turn to the lengthy history of the Newhall Ranch Project and the activities preceding the Corps's issuance of the Section 404 Permit. Starting in the early 1990s, Newhall Land, a land management company, and Los Angeles County (the County) began developing a land use plan (the Newhall Ranch Specific Plan) to guide the development of the Newhall Ranch Project. As envisioned in the Specific Plan, the Project would be a large-scale residential, commercial, and industrial development in northwestern Los Angeles County near the city of Santa Clarita. It would encompass approximately 12,000 acres, including 5.5 linear miles of the Santa Clara River and its tributaries. In compliance with the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code §§ 21000 - 21189.57, the County held public hearings and published an environmental impact report (EIR) for the Specific Plan. The County ultimately approved the Specific Plan, as revised in response to public comments, and issued various project approvals, including zoning changes. Environmental groups immediately brought actions in state court to challenge the County's approval of the Specific Plan. In August 2000, the state court ordered the County to vacate the project approval and conduct further environmental analyses. See Ctr. for Biological Diversity v. Dep't of Fish & Wildlife , 224 Cal. App. 4th 1105, 1112, 169 Cal.Rptr.3d 413 (2014), rev'd on other grounds , 62 Cal. 4th 204, 195 Cal.Rptr.3d 247, 361 P.3d 342 (2015). Following numerous additional hearings and further analyses, the County adopted a revised Specific Plan for the Newhall Ranch Project in May 2003. As revised, the Specific Plan provided for the development of more than 21,000 residential units and 5.5 million square feet of commercial, office, and retail uses in a series of "interrelated villages." Id. at 1113, 169 Cal.Rptr.3d 413. The state court approved the amended Specific Plan, and dismissed the environmental plaintiffs pursuant to a settlement agreement. Id. In December 2003, Newhall Land applied to the Corps for a Section 404 Permit that would allow the construction of the infrastructure necessary for the development authorized by the Specific Plan. Pursuant to its permitting regulations, the Corps determined it was the lead agency for purposes of NEPA compliance. See 33 C.F.R. § 325.2(a)(4), app. B § 325(8). After deciding to prepare an EIS, the Corps coordinated with the California Department of Fish and Wildlife (CDFW) to prepare a combined EIS/EIR. The Corps published a notice of intent to prepare an EIS/EIR in the Federal Register in 2004 and a second one in 2005, and held two public scoping meetings to determine the scope of the issues to be addressed and to identify the significant issues relating to the action. See 40 C.F.R. § 1501.7. The Corps circulated the Draft EIS/EIR in May 2009 for public comment. After receiving and considering public comments on the Draft EIS/EIR, the Corps prepared a Final EIS/EIR, which included the Corps's Draft Section 404(b)(1) Guidelines Evaluation. As part of its analysis of the Project's water quality, biological resources, and cumulative impacts, the Final EIS/EIR discussed the Project's water discharges into the Santa Clara River and the potential impacts on the Southern California steelhead, an endangered species. The Corps determined that the Project area was not part of the steelhead's critical habitat, but considered the Project's potential to affect steelhead and its habitat downstream of the Project area through increased stormwater discharges. While the Santa Clara River generally contains water on a year-round basis, a portion of the river between the Project area and the downstream steelhead areas is dry most of the year, so Project discharges would generally not impact steelhead. (This dry reach of the river is informally known as the "Dry Gap.") In months when there is sufficient rainfall, however, stormwater runoff may flow through the Dry Gap, and during those periods Project discharge might reach steelhead populations. The Corps nonetheless determined that these changes would not have a substantial adverse effect on the southern steelhead. In reaching this conclusion, the Corps analyzed the combination of wastewater and stormwater discharges from the Project, and concluded that the Project's total discharges would have a dissolved-copper concentration of 9.0 micrograms-per-liter. This concentration is less than the existing dissolved-copper concentration in the Santa Clara River that occurs during storm events large enough to flow through the Dry Gap. In addition, this concentration would be less than the limit of 32 micrograms-per-liter of dissolved copper that the California Toxics Rule (CTR), an EPA-promulgated regulation establishing water quality standards in California, set for the Santa Clara River. Accordingly, the Corps concluded in the Final EIS/EIR that the Project would not affect the steelhead, and therefore it was not required to consult with NMFS to discharge its responsibilities under the ESA. See 16 U.S.C. § 1536(a)(3) ; 33 C.F.R. § 325.2(b)(5). The Corps solicited additional comments that would be considered "before the Corps ... finalizes the Record of Decision (ROD) for the Federal action associated with the proposed project." Among other letters, it received a comment letter from Ventura Coastkeeper expressing its concern that the Project's discharges would contain dissolved copper at a concentration that would harm Southern California steelhead. In August 2010, the Corps also received a letter from the EPA, offering comments on the Final EIS/EIR and suggesting, among other things, that the Corps's practicability analysis for different alternatives should consider the expected revenues from the Project. The EPA subsequently sent a letter in August 2011, indicating that it would not seek review of the Corps's permit decision, citing significant improvements to the Project design and additional mitigation measures that had resulted from collaboration among the EPA, the Corps, and Newhall Land. On August 31, 2011, the Corps issued a ROD and a provisional Section 404(b) permit to Newhall Land. The ROD addressed the comments the Corps had received on the Final EIS/EIR. In responding to Ventura Coastkeeper's comment letter, the Corps summarized the results of a Supplemental Water Quality Analysis conducted by a third-party consultant in May 2011, which showed that the additional stormwater retention measures incorporated into the Project would further reduce the dissolved-copper concentration in the Project's stormwater discharges. The Corps also appended its Final Section 404(b)(1) Guidelines Evaluation (Final Evaluation) to the ROD. The Final Evaluation stated that it was not a stand-alone document, but relied heavily on the information provided in the Draft EIS/EIR and the Final EIS/EIR. Like the Final EIS/EIR, the Final Evaluation concluded that the Project would not affect the steelhead and therefore consultation with NMFS pursuant to the ESA was not required. The Final Evaluation defined the "overall project purpose" for purposes of analyzing the practicability of alternatives as follows: [T]he development of a master planned community with interrelated villages in the vicinity of the Santa Clarita Valley in northwestern Los Angeles County that achieves the basic objectives of the Specific Plan by providing a broad range of land uses of approximately the same size and proportions as approved in the Specific Plan, including residential, mixed-use, commercial and industrial uses, public services (schools, parks, etc.), and a water reclamation plant. The Corps determined that the overall project purpose also included 15 of the 37 basic objectives of the Specific Plan. The Corps stated that the "basic project purpose," which is used to determine whether the project is water dependent, was "to provide housing and commercial/industrial/mixed-use development." Because the basic project purpose was not water dependent, the Corps determined that the rebuttable presumption that practicable alternatives were available applied, but was rebutted because the Corps had analyzed 23 alternative sites and concluded that they were impracticable. The Final Evaluation considered the eight on-site alternatives described and analyzed in the Final EIS/EIR, in order to determine which one was the "least environmentally damaging practicable alternative." Bering Strait Citizens , 524 F.3d at 955. These alternatives included a no-build alternative (Alternative 1), Newhall Land's preferred alternative (Alternative 2), and six other alternatives (Alternatives 3 through 7 and Modified Alternative 3), each with varying project sizes and resulting impacts on waters of the United States. Alternative 2, Newhall Land's alternative, proposed developing 2,864.2 acres, which would include 20,885 residential units and 5.5 million square feet of commercial space. It would have permanently filled 93.3 acres of waters of the United States, including 20.5 acres of wetlands, and would have temporarily filled 33.3 acres of waters of the United States, including 11.2 acres of wetlands. The Corps selected Modified Alternative 3 as the least environmentally damaging practicable alternative. Compared to Newhall Land's preferred alternative (Alternative 2), Modified Alternative 3 reduced permanent impacts to waters of the United States by 29 percent and temporary impacts by 3 percent. It also reduced the acreage that could be developed for residential units by 10 percent and likewise reduced the developable commercial acreage by 14 percent, increasing the Project's cost per developable acre by 5.7 percent. The Corps concluded that further modifications to the Project would be impracticably expensive, noting that Modified Alternative 3 would be more costly than the most expensive comparable development project in the region. Accordingly, the ROD adopted Modified Alternative 3 as the basis for the Section 404 permit. In March 2014, SCOPE sued the EPA, the Corps, and their respective agency officials in district court, alleging violations of the CWA, NEPA, and the NHPA. Newhall Land successfully moved to intervene as a defendant. In January 2015, SCOPE amended its complaint to assert an additional claim under the ESA. On cross-motions for summary judgment, the district court granted summary judgment in favor of the Corps and Newhall Land on June 30, 2015, the judgment that SCOPE now appeals. III Before reaching the merits of SCOPE's claims, we consider whether the plaintiffs have standing to bring their NEPA and ESA claims. After this case was argued on appeal, the Corps and Newhall Land settled with four of the six plaintiffs, and stipulated to voluntary dismissal of those plaintiffs. In supplemental briefing on the effect of these dismissals, the Corps and Newhall Land argue that while both of the remaining plaintiffs, SCOPE and Friends, have standing to pursue their CWA claim, they lack standing to pursue their NEPA and ESA claims. We may consider the jurisdictional question of Article III standing for the first time on appeal. See Wash. Envtl. Council v. Bellon , 732 F.3d 1131, 1139 (9th Cir. 2013). Because "[t]he need to satisfy [Article III standing] requirements persists throughout the life of the lawsuit," if circumstances change such that the plaintiffs before us no longer possess standing, we must dismiss the affected claims. Wittman v. Personhuballah , --- U.S. ----, 136 S.Ct. 1732, 1736-37, 195 L.Ed.2d 37 (2016). We conclude, however, that SCOPE and Friends possess standing for their NEPA and ESA claims. A "[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc. , --- U.S. ----, 137 S.Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (quoting Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) ). When there are multiple plaintiffs, "[a]t least one plaintiff must have standing to seek each form of relief requested in the complaint." Id. at 1651. In order for an organizational plaintiff such as SCOPE or Friends to have standing, it must demonstrate that at least one of its "members would otherwise have standing to sue in [the member's] 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." Wash. Envtl. Council , 732 F.3d at 1139 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). A plaintiff seeking relief in federal court must establish the three elements that constitute the "irreducible constitutional minimum" of Article III standing, Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), namely, that the plaintiff has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision," Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). This standard "is softened when a plaintiff asserts a violation of a procedural right" conferred by a federal statute, San Luis & Delta-Mendota Water Auth. v. Haugrud , 848 F.3d 1216, 1232 (9th Cir. 2017) (internal quotation marks and citation omitted), because "the causation and redressability requirements [for standing] are relaxed," WildEarth Guardians v. U.S. Dep't of Agric. , 795 F.3d 1148, 1154 (9th Cir. 2015) (citation omitted). In order to establish an injury in fact in the context of a claimed procedural error in an agency's decisionmaking process, a plaintiff must show that "(1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests." Haugrud , 848 F.3d at 1232 (alterations in original) (quoting Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm'n , 457 F.3d 941, 949 (9th Cir. 2006) ). To establish causation and redressability, the plaintiff must show that "the relief requested-that the agency follow the correct procedures-may influence the agency's ultimate decision." WildEarth Guardians , 795 F.3d at 1156 (quoting Salmon Spawning & Recovery All. v. Gutierrez , 545 F.3d 1220, 1226 (9th Cir. 2008) ). In the NEPA context, plaintiffs may demonstrate redressability with a showing that the agency's decision could "could be influenced by the environmental considerations that NEPA requires an agency to study." Laub v. U.S. Dep't of Interior , 342 F.3d 1080, 1087 (9th Cir. 2003). A plaintiff does not need to show that the correction of the alleged procedural error would lead to a decision more favorable to plaintiffs' interests. See id. ("In order to establish redressability, plaintiffs asserting the inadequacy of an agency's EIS ... need not show that further analysis by the government would result in a different conclusion."); Cantrell v. City of Long Beach , 241 F.3d 674, 682 (9th Cir. 2001) ("[P]laintiffs asserting procedural standing need not demonstrate that the ultimate outcome following proper procedures will benefit them."). Similarly, plaintiffs asserting violations of the ESA's consultation requirements are "not required to establish what a Section 7 consultation would reveal, or what standards would be set." Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv. , 789 F.3d 1075, 1082 (9th Cir. 2015). While "[t]his is not a high bar to meet.... the redress[a]bility requirement is not toothless in procedural injury cases." Salmon Spawning , 545 F.3d at 1227. Procedural rights "can loosen ... the redressability prong," not eliminate it. Summers v. Earth Island Inst. , 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). For instance, we have found redressability lacking where an agency's correction of a procedural error could not lead to a decision more favorable to plaintiffs, as where a project had already been completed, see Rattlesnake Coal. v. EPA , 509 F.3d 1095, 1102-03 (9th Cir. 2007), where a different agency had already made the same decision, see Nuclear Info. & Res. Serv. , 457 F.3d at 955, or where the agency could not reverse the United States' entrance into an international treaty, see Salmon Spawning , 545 F.3d at 1227. In this case, SCOPE and Friends assert procedural violations of NEPA and ESA. See WildEarth Guardians , 795 F.3d at 1154 (noting that a claim "alleging a NEPA violation" is procedural); Nat. Res. Def. Council v. Jewell , 749 F.3d 776, 783 (9th Cir. 2014) (en banc) ("[A]lleged violations of Section 7(a)(2)'s consultation requirement constitute a procedural injury for standing purposes."). B Newhall Land argues that the plaintiffs have failed to show standing even under our relaxed standards. According to Newhall Land, the plaintiffs have not shown that the Corps's alleged procedural deficiencies under NEPA and ESA affected their concrete interests, because plaintiffs allege only that the Corps conducted an inadequate analysis of the Project's impacts on Southern California steelhead under NEPA, and that the Corps failed to engage in consultation with the NMFS regarding those impacts as required under the ESA. But, Newhall Land argues, the plaintiffs' interests are limited to recreation and natural resources within the Project area, where steelhead are not present. This argument fails, however, because under our relaxed standard, the plaintiffs need show only that "the challenged [agency] action will threaten their concrete interests," Ctr. for Food Safety v. Vilsack , 636 F.3d 1166, 1171 (9th Cir. 2011) (emphasis added), not that the alleged procedural deficiency will threaten such interests. Here the challenged agency action is the Corps's issuance of the Section 404 permit, and so the plaintiffs need show only that the issuance of the permit will affect their interest in recreation and aesthetics in the Project area; they do not need to show that the alleged inadequacies in the Corps's analysis of the Project's impact on steelhead will have such an effect. See, e.g., id. at 1172 ; Nuclear Info. & Res. Serv. , 457 F.3d at 952 ; City of Sausalito v. O'Neill , 386 F.3d 1186, 1197 (9th Cir. 2004). Two other circuits have likewise rejected Newhall Land's argument that the plaintiffs' injury must be tied to the particular procedural deficiency alleged. See WildEarth Guardians v. U.S. Bureau of Land Mgmt. , 870 F.3d 1222, 1231 (10th Cir. 2017) ; WildEarth Guardians v. Jewell , 738 F.3d 298, 307 (D.C. Cir. 2013) ("The Appellants' aesthetic injury follows from an inadequate FEIS whether or not the inadequacy concerns the same environmental issue that causes their injury."). SCOPE and Friends have concrete interests at stake, see Laidlaw , 528 U.S. at 183, 120 S.Ct. 693, and it is reasonably probable that those interests will be threatened by the "challenged action," Ctr. for Food Safety , 636 F.3d at 1171, the issuance of the Section 404 permit. We also reject the argument that plaintiffs failed to show causation and redressability. Contrary to Newhall Land's argument, SCOPE and Friends do not need to show that the Corps's correction of the alleged procedural error would lead to a favorable decision such as a decision not to issue a Section 404 permit. See Laub , 342 F.3d at 1087. Rather, plaintiffs need only show a reasonable probability that the Corps' decision "could be influenced by the environmental considerations that NEPA requires an agency to study." Id. Here, such a reasonable probability exists. Plaintiffs suggest that if the Corps conducted further analysis, it would become aware of more significant impacts to steelhead. Because the Project's stormwater discharge results from paving over surfaces that would otherwise absorb rainfall, it is plausible that mitigating those impacts would result in alterations or reductions to the Project's footprint. Moreover, if the analysis revealed that the Project would "affect" steelhead, 50 C.F.R. § 402.14(a), the Corps would then have to engage in ESA consultation, possibly leading to further Project modifications. See 16 U.S.C. § 1536(b)(3). Accordingly, we conclude that Plaintiffs have standing for their NEPA and ESA claims. IV Because this case involves review of a final agency determination under the Administrative Procedure Act, 5 U.S.C. § 706, the district court limited its review to the administrative record, and resolved it on summary judgment. We review a grant of summary judgment de novo, and must determine whether the Corps's action was arbitrary or capricious under the APA. See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1065 (9th Cir. 2004) (citing 5 U.S.C. § 706(2)(A) ), superseded on other grounds by Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7214. "Review under the arbitrary and capricious standard is deferential...." Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). "[O]ur proper role is simply to ensure that the [agency] made no 'clear error of judgment' that would render its action 'arbitrary and capricious,' " Lands Council v. McNair , 537 F.3d 981, 993 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Nat. Res. Def. Council , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and we require only " 'a rational connection between facts found and conclusions made' by the defendant agencies." Finley , 774 F.3d at 617 (quoting League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton , 752 F.3d 755, 760 (9th Cir. 2014) ). Accordingly, "we will not vacate an agency's decision unless [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 Ass'n of Home Builders , 551 U.S. at 658, 127 S.Ct. 2518 (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) ). "This approach ... requires us to defer to an agency's determination in an area involving a 'high level of technical expertise.' " Lands Council , 537 F.3d at 993 (citation omitted). That is, "[w]e are to be 'most deferential' when the agency is 'making predictions, within its [area of] special expertise, at the frontiers of science.' " Id. (alteration in original) (quoting Forest Guardians v. U.S. Forest Serv. , 329 F.3d 1089, 1099 (9th Cir. 2003) ). We cannot "substitute our judgment for the agency's in determining which scientific data to credit, so long as the conclusion is supported by adequate and reliable data." Finley , 774 F.3d at 620. V A We first consider SCOPE's CWA claim. SCOPE argues that the Corps failed to select the least environmentally damaging practicable alternative in issuing a Section 404(b) permit. SCOPE claims that in determining the overall project purpose, the Corps incorporated Newhall Land's project objectives and the County's Specific Plan objectives and therefore relied on an overly specific purpose that unduly narrowed the range of available alternatives. We disagree. As explained above, the Corps not only may, but must, consider Newhall Land's project objectives, provided that those project objectives are not so narrowly defined as to preclude alternatives, see Jones , 741 F.3d at 1002 ; Sylvester , 882 F.2d at 409, and must also consider the Specific Plan objectives, 33 C.F.R. §§ 320.4(j)(2), 336.1(c)(11)(ii). Therefore, the Corps was not arbitrary or capricious in rejecting certain alternatives on the ground that they failed to meet Newhall Land's objectives or the Specific Plan objectives. The Corps could reasonably reject Alternatives 7 and 8 because their substantial reductions in the extent of developable land (44 percent and 25 percent, respectively) would prevent the Project from meeting elements of the overall project purpose and their substantial increase in costs (51 percent and 28 percent, respectively) would render them impracticable. Nor was the Corps arbitrary or capricious in rejecting Alternative 6 on the ground that it reduced developable space in a manner that would preclude village-style development, its 13 percent increase in cost would make it impracticable, and other practicable alternatives would be less environmentally damaging. SCOPE next attacks the manner in which the Corps assessed the cost of the alternatives under consideration. First, SCOPE contends that the Corps failed to select the least environmentally damaging practicable alternative because further avoidance and minimization of impacts to waters of the United States were theoretically possible, and the Corps erred in considering the financial impact of further avoidance. We disagree. The regulations require the Corps to take into consideration the cost of an alternative in making the determination that there is no practicable alternative. See 40 C.F.R. § 230.10(a)(2) ("An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes."). The Corps followed this regulatory requirement in determining that it would be impracticably expensive to adopt an alternative more restrictive than the selected alternative, Modified Alternative 3, to avoid further impacts to waters of the United States. The Corps's determination was reasonably based on its findings that Modified Alternative 3 would be more expensive than any previous comparable development project in southern California, and would also exceed the average and median costs for such projects by at least 56 percent. The alternative was 5.7 percent more costly than Newhall Land's preferred alternative, and significantly shrank the Project's footprint. The Corps's decision that Modified Alternative 3 was at the outer limit of cost practicability was thus based on a "rational connection between facts found and the conclusion" made and we defer to its determination under 40 C.F.R. § 230.10(a)(2). Butte Envtl. Council , 620 F.3d at 947 ; see also Bering Strait Citizens , 524 F.3d at 948. SCOPE further criticizes three different aspects of the Corps's cost methodology. It claims that: (1) the Corps should have considered costs on a per-residential unit or per-commercial floor space basis rather than a per-acre basis; (2) the Corps was required to consider the Project's revenues; and (3) the Corps should have excluded land acquisition costs because those costs are sunk costs. We disagree. The Section 404(b) Guidelines do not require the Corps to use any particular metric for analyzing costs; rather, they merely instruct the Corps to assess alternatives in light of their "cost, existing technology, and logistics," 40 C.F.R. § 230.10(a)(2). Therefore, so long as the Corps's evaluation of costs is reasonable, we must defer to it. See Nat'l Ass'n of Home Builders , 551 U.S. at 658, 127 S.Ct. 2518. Here, the Corps adopted a reasonable methodology for calculating and evaluating costs, and therefore it is entitled to deference. The Corps's evaluation of costs on a per-acre basis was reasonable. As the Corps explained, Newhall Land intended to sell developable land by the acre, rather than developing the land itself and selling units or floor space. Accordingly, the Corps could reasonably conclude that determining Newhall Land's costs per acre made more sense than speculating about the type and density of units that might ultimately be built on that land. The Corps also noted that the per-acre cost metric was "more widely used in the industry." The Corps also reasonably declined to consider revenues as part of an alternative's costs. The regulations direct the Corps to assess practicability based on "cost, existing technology, and logistics." 40 C.F.R. § 230.10(a)(2). "Cost" means an "expenditure or outlay," see Webster's Third New Intl. Dictionary 515 (2002), and does not include "revenues," which are items of income, see id. at 1942. Although revenues are not part of "costs," the Corps nevertheless stated that it took revenues into account "by looking at how each alternative affects developable acreage, which is the source of revenue for the project." Given the close relationship between the developable acreage resulting from the Project and revenues to Newhall Land, the Corps did not fail to consider an important aspect of the problem. Finally, the Corps did not err by including the acquisition costs of the property proposed for the Project site. The Section 404(b) Guidelines do not require a specified treatment of land acquisition costs, so we defer to the Corps's judgment unless its decision was arbitrary or capricious. See Jones , 741 F.3d at 996. Here, the Corps reasonably included the acquisition costs as part of its determination of whether an alternative is practicable. Because Newhall Land is investing (or contributing) its valuable site to the Project, the costs of the Project include the value of the property. Accordingly, the exclusion of the value of the property would have led to inaccurate comparisons between the costs for the Newhall Ranch project and the costs for comparable projects, which would require property acquisition. Indeed, the Corps would have arguably "entirely failed to consider an important aspect of the problem" had the Corps excluded land costs in its practicability analysis rather than included it. Nat'l Ass'n ofHome Builders , 551 U.S. at 658, 127 S.Ct. 2518 (quoting Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856 ). We therefore find no merit in SCOPE's CWA challenges to the Corps's permit issuance. B We next turn to SCOPE's claim that the Corps violated the ESA. SCOPE argues that the Corps erred in determining that the Project "will have no effect" on Southern California steelhead in the Santa Clara River, and so was required to consult with NMFS on the Project's potential impact. See Pac. Rivers Council , 30 F.3d at 1054 n.8 ; 50 C.F.R. § 402.14(a). SCOPE argues that the Project may affect steelhead because, during storm events where the volume of the Project's discharges is sufficient to flow into the reach of the Santa Clara River downstream of the Dry Gap, those discharges will contain concentrations of dissolved copper that cause sublethal impacts to juvenile steelhead smolt. We disagree. The data and analysis set forth in the Draft EIS/EIR and Final EIS/EIR consistently establish that concentrations of dissolved copper in discharges from the Project would be within the background range already observed in the Santa Clara River and well below the CTR's dissolved-copper criterion for the Santa Clara River. During storm events large enough to cause discharges from the Project to flow into the reach of the Santa Clara River downstream of the Dry Gap, the background concentration of dissolved copper in the relevant portion of the Santa Clara River averages 9.9 micrograms-per-liter. The Final EIS/EIR estimated that the combined discharge from the Project's stormwater runoff and its wastewater treatment plant would contain only 9.0 micrograms of dissolved copper per liter, which would be lower than that background concentration. The 2011 Supplemental Water Quality Analysis (incorporated by reference into the ROD) found that the additional stormwater retention measures required by the Corps would reduce the dissolved-copper concentration of the Project's stormwater discharges from the 8.3 micrograms-per-liter referenced in the Final EIS, to 6.5 micrograms-per-liter, again well below background. Given this information, the Corps reasonably concluded that the Project's discharges of dissolved copper would not affect steelhead downstream of Dry Gap. The Corps also noted that because the Project discharges would flow into the Santa Clara River downstream of the Dry Gap only when water flows were already high, the Project discharges would constitute less than one percent of the River's flow and "water quality in the Santa Clara River would not be significantly affected by the discharges." Because the Corps's determination that the Project would not affect steelhead was not arbitrary or capricious, we reject SCOPE's ESA claim. See Kraayenbrink , 632 F.3d at 481. SCOPE's argument to the contrary hinges on its contention that the Corps erred by failing to consider a 2007 Technical Memorandum published by NMFS, An Overview of Sensory Effects on Juvenile Salmonids Exposed to Dissolved Copper (the "NMFS Memorandum") which Ventura Coastkeeper submitted with its comments on the Final EIS/EIR. According to SCOPE, the NMFS Memorandum establishes that the levels of dissolved copper in discharges from the Project will have "sublethal impacts" on steelhead smolt, which are not adequately accounted for in the CTR criteria. SCOPE argues that the Corps failed to use "the best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), because it did not adequately consider the thresholds set out in the NMFS Memorandum. We reject this argument. As a threshold matter, we may not substitute our scientific judgment for that of the agency. "The determination of what constitutes the 'best scientific data available' belongs to the agency's 'special expertise[']" and warrants substantial deference. San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581, 602 (9th Cir. 2014) (emphasis omitted) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council , 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ). Accordingly, "[t]he best available data requirement 'merely prohibits [the Corps] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.' " Kern Cty. Farm Bureau v. Allen , 450 F.3d 1072, 1080 (9th Cir. 2006) (third alteration in original) (quoting Sw. Ctr. for Biological Diversity v. Babbitt , 215 F.3d 58, 60 (D.C. Cir. 2000) ). In this case, the Corps could reasonably conclude that the NMFS Memorandum does not contain the best scientific data available for the Project. The NMFS Memorandum summarizes and analyzes laboratory studies regarding the effects of concentrations of copper on coho salmon in municipal water. It did not consider steelhead populations or the effect of copper concentrations in natural conditions. Moreover, it did not consider any data specific to the Project or the Santa Clara River. Nor was it arbitrary or capricious for the Corps to consider the CTR criteria as "a useful benchmark" to assess the possible water-quality impacts of the Project's discharges. The Corps could reasonably consider the CTR criteria as one source of information, given that the EPA promulgated the CTR to establish water-quality criteria "legally applicable in the State of California for inland surface waters, enclosed bays and estuaries for all purposes and programs under the Clean Water Act." 65 Fed. Reg. at 31,682 ; see also 40 C.F.R. § 131.38. As applied here, the CTR provides "an estimate of the highest concentration of a substance in water which does not present a significant risk to the aquatic organisms in the water and their uses," 65 Fed. Reg. at 31,689, and which California and the EPA must consider in implementing various water quality programs under the CWA, id. at 31,683-84. Because the effects of dissolved copper and other dissolved metals depend on water "hardness" and other factors that vary among bodies of water, the CTR provides a method for calculating a site-specific dissolved-copper criterion. Id. at 31,690, 31,692; see also 40 C.F.R. § 131.38, gen. note 3 to table in paragraph (b)(1). The Corps could thus reasonably consider the CTR as part of its analysis. Moreover, because the Corps considered other sources of data, including project-specific modeling, in determining that issuance of the Section 404 Permit would have no effect on downstream steelhead, SCOPE's arguments regarding limitations in the applicability of the CTR are not material. SCOPE next argues that because the Corps published its determination that the Project would not affect steelhead in its June 2010 Final EIS/EIR, it could not rely on the Supplemental Analysis, which had been issued almost a year later in May 2011, to support its determination. We reject this argument, because the Corps did not need to rely on the Supplemental Analysis in order to reach its conclusion. The Final EIS/EIR explains the Corps's determination that the Project's stormwater and wastewater discharges would not affect steelhead because the dissolved-copper concentrations of the combined discharge would be within background ranges and lower than the average concentration during large storm events, as well as substantially below the CTR's threshold. This conclusion was not arbitrary or capricious. The Supplemental Analysis merely confirmed the Corps's initial conclusion that there would be no effect because it established that the Project's stormwater retention measures would further lower the dissolved-copper concentrations in the Project's runoff. Because the Final EIS/EIR's analysis of combined stormwater and wastewater discharges was sufficient to support the Corps's determination that Southern California steelhead would not be affected by the Project, we also reject SCOPE's argument that the Corps erred by relying on the Supplemental Analysis, which did not include the effects of wastewater discharges. We therefore conclude that the Corps reasonably determined that the Project would have no effect on steelhead, and in the absence of a consultation request from NMFS, see 50 C.F.R. § 402.14(a), the Corps's decision not to consult with NMFS was not arbitrary and capricious. C In its NEPA claim, SCOPE argues that the Corps's Final EIS/EIR provided an inadequate analysis of the cumulative impacts of the Project's dissolved-copper discharges on steelhead in the reach of the Santa Clara River downstream of the Dry Gap. Because SCOPE raises essentially the same arguments that it advanced under its ESA claim, they fail for largely the same reasons. First, SCOPE again contends that the NMFS Memorandum demonstrates that the Project's dissolved-copper discharges may cause sublethal impacts to steelhead, and the Final EIS/EIR failed to consider those impacts. As explained above, the Corps did not err in declining to rely on the NMFS Memorandum. See Or. Nat. Res. Council Fund v. Goodman , 505 F.3d 884, 897 (9th Cir. 2007) ("NEPA does not require the reviewing court to 'decide whether an [EIS] is based on the best scientific methodology available.' ") (quoting Or. Envtl. Council v. Kunzman , 817 F.2d 484, 496 (9th Cir. 1987) (alteration in original) ). Furthermore, because the Corps reasonably determined that the Project was not likely to affect steelhead populations in the Santa Clara River, it was also not arbitrary or capricious to conclude that the Project would not result in significant cumulative water quality impacts to steelhead. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv. , 100 F.3d 1443, 1448 (9th Cir. 1996) (explaining that an agency's "no effect" determination under the ESA supported its conclusion that the action would "not individually or cumulatively have a significant effect on the human environment" under NEPA) (quoting 40 C.F.R. § 1508.4 ). For this reason, the Final EIS/EIR provided a sufficient discussion "to show why more study is not warranted," 40 C.F.R. § 1502.2(b), and therefore satisfied NEPA's requirements. See Protect Our Communities Found. v. Jewell , 825 F.3d 571, 583 (9th Cir. 2016). Second, SCOPE challenges the Corps's reference to the May 2011 Supplemental Analysis in its response to comments on the Final EIS/EIR. SCOPE argues that the Corps was required to recirculate a revised EIS/EIR containing the Supplemental Analysis or alternatively, include the full document as an appendix. As explained above, the Supplemental Analysis merely confirmed the Corps's conclusion, but was not its basis; accordingly, it did not contain "significant new information" that would require the Corps to recirculate the EIS/EIR for further comment. California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep't of the Interior , 767 F.3d 781, 794 (9th Cir. 2014) ; see also 40 C.F.R. § 1502.9(c)(1)(ii). Moreover, contrary to SCOPE's assertions, the Corps did not violate NEPA by incorporating the Supplemental Analysis by reference and informing the public that it was available upon request, rather than providing the document in an appendix. See California ex rel. Imperial Cty. Air Pollution Control Dist. , 767 F.3d at 794-95 ; 40 C.F.R. § 1502.21. Because the Final EIS/EIR provided an adequate analysis of the cumulative impacts of the Project's dissolved copper discharges, SCOPE's NEPA claim also fails. VI We conclude that the Corps complied with its obligations under the CWA, having properly considered practicability as required under the Section 404(b) Guidelines. We further conclude that the Corps complied with the ESA, as its determination that Southern California steelhead would not be affected by the Project and its corresponding decision not to consult with NMFS were not arbitrary and capricious. For similar reasons, we conclude that the Corps reasonably assessed the Project's potential impacts to the steelhead and provided sufficient discussion to satisfy its NEPA obligations. Accordingly, the district court properly granted summary judgment in the Corps's favor. AFFIRMED. We refer to the organizations collectively as "SCOPE" where appropriate, or otherwise refer to them by their respective names. After oral argument, four other plaintiffs in this litigation, the Center for Biological Diversity, the Wishtoyo Foundation, Ventura Coastkeeper, and the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation (the Santa Ynez Band) reached a settlement with the Corps and Newhall Land and were voluntarily dismissed from the case. The Santa Ynez Band also advanced a challenge under the National Historic Preservation Act (NHPA). Because neither of the remaining plaintiffs has standing to pursue the NHPA claim, we GRANT the Corps and Newhall Land's unopposed motion to dismiss the NHPA claim. We also GRANT their unopposed motion for a limited remand to the district court to seek partial vacatur of the NHPA portion of its decision as part of the settlement agreement. The 2015 regulations setting forth a new definition of "waters of the United States" had been stayed by the U.S. Court of Appeals for the Sixth Circuit. In re EPA and Dep't of Def. Final Rule , 803 F.3d 804, 809 (6th Cir. 2015). On January 22, 2018, the Supreme Court held that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule. Nat'l Ass'n of Mfrs. v. Dep't of Def. , --- U.S. ----, 138 S.Ct. 617, 623, 199 L.Ed.2d 501 (2018). Pursuant to an Executive Order, the Environmental Protection Agency, Department of Army, and the Corps published a final rule delaying the applicability of the 2015 regulations until February 6, 2020. Definition of "Waters of the United States"-Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200 (Feb. 6, 2018). Until that applicability date, "the agencies will administer the regulations in place prior to the 2015 Rule, and will continue to interpret the statutory term 'waters of the United States' to mean the waters covered by those regulations." Id. at 5201. We therefore rely on the definition set forth in the prior regulations. FWS and NMFS apportion listing and consultation responsibilities by species. See 50 C.F.R. § 402.01(b). FWS is responsible for land-based and freshwater species, and NMFS is responsible for marine and anadromous species. See Conservation Cong. v. U.S. Forest Serv. , 720 F.3d 1048, 1051 (9th Cir. 2013) ; Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1063 n.1 (9th Cir. 2004), superseded on other grounds by Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7214 (Feb. 11, 2016) (codified at 50 C.F.R. § 402.02 (2016) ). CEQA is similar to NEPA, and requires the preparation of an "environmental impact report" (EIR) by the lead state agency. See Cal. Pub. Res. Code § 21100 ; see also City of Los Angeles v. FAA , 138 F.3d 806, 807 (9th Cir. 1998). While both NEPA and CEQA impose procedural requirements, see City of Carmel-By-The-Sea , 123 F.3d at 1150, CEQA also contains a "substantive mandate that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures," Mountain Lion Found. v. Fish & Game Comm'n , 16 Cal. 4th 105, 134, 65 Cal.Rptr.2d 580, 939 P.2d 1280 (1997). The CTR "promulgates criteria for priority toxic pollutants in the State of California for inland surface waters and enclosed bays and estuaries," including for aquatic life, 40 C.F.R. § 131.38(a), and is "legally applicable in the State of California for inland surface waters, enclosed bays and estuaries for all purposes and programs under the Clean Water Act." Water Quality Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants for the State of California, 65 Fed. Reg. 31,682, 31,682 (May 18, 2000) (codified at 40 C.F.R. pt. 131). The Specific Plan allowed an additional 423 residential "second units" as part of the Project, see Ctr. for Biological Diversity , 224 Cal. App. 4th at 1113, 169 Cal.Rptr.3d 413, but the Corps did not consider those units separately in its analysis because the Corps determined that they would not impact the Project's development footprint or secondary environmental effects. SCOPE does not challenge this decision. The district court dismissed the EPA and its officials as defendants for lack of subject matter jurisdiction. The propriety of this dismissal is not before us on appeal. As explained above, supra 910-11 n.2, we grant the Corps and Newhall Land's unopposed motion to dismiss the NHPA claim. Before the district court, SCOPE also challenged the Final EIS/EIR's traffic and cultural resource analysis, but does not do so on appeal. Indeed, given that the Corps concluded that requiring the Project to incur the cost of further mitigation would make it impracticably expensive, it is conceivable that significant new modifications or delay would block the Project entirely. See generally , Amanda Covarrubias & Catherine Saillant, Longtime Foes of Ahmanson Project Rejoice , Los Angeles Times (Sept. 24, 2003), http://articles.latimes.com/2003/sep/24/local/me-ahmanson24/. SCOPE and Friends also satisfy the other organizational standing requirements. The protection of the Project area's natural resources is "germane to the organization's purpose," and "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Wash. Envtl. Council , 732 F.3d at 1139 (quoting Laidlaw , 528 U.S. at 181, 120 S.Ct. 693 ). Moreover, SCOPE and Friends satisfy prudential standing requirements, as "[i]t is well settled that the zone of interests protected by NEPA is environmental," Nuclear Info. & Res. Serv. , 457 F.3d at 950, and the zone-of-interests test does not apply to their claim under the ESA's citizen suit provision, see Bennett v. Spear , 520 U.S. 154, 164, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ; 16 U.S.C. § 1540(g). Even though SCOPE brings its ESA claim under the ESA's citizen suit provision, 16 U.S.C. § 1540(g), "the APA's 'arbitrary and capricious' standard applies; and, an agency's 'no effect' determination under the ESA must be upheld unless arbitrary and capricious."W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 481 (9th Cir. 2011). SCOPE argues that the Corps should have followed its 1989 intra-agency review decision in the Hartz Mountain project in New Jersey, where the Corps acknowledged that "federal concerns over the environment, health and/or safety will often result in decisions that are inconsistent with local land use approvals." However, the Corps's 1989 decision pertained to a different project in an entirely different context. Nothing in that decision shows that the Corps erred in its consideration of the Specific Plan objectives here. We additionally reject SCOPE's suggestion that the EPA has authoritatively interpreted "cost" in 40 C.F.R. § 230.10(a)(2) to include revenues. Neither of the authorities on which SCOPE relies, a 2008 comment made by the EPA in response to a Section 404 permit sought by the Potash Corporation of Saskatchewan, and the EPA's comment in response to the Draft EIS/EIR in this case, purports to be an authoritative interpretation of the Section 404(b) Guidelines. Of course, even if those documents did purport to offer an authoritative interpretation, such an interpretation could not supersede the unambiguous plain language of 40 C.F.R. § 230.10(a)(2). See Siskiyou Reg'l Educ. Project v. U.S. Forest Serv. , 565 F.3d 545, 555 (9th Cir. 2009). SCOPE's characterization of the land cost to Newhall Land as a "sunk cost" is similarly incorrect. A sunk cost is "[a] cost that has already been incurred and that cannot be recovered ." See Black's Law Dictionary 398 (9th ed. 2009) (emphasis added). Newhall Land could recover the costs of acquiring the Project site (however long ago those costs were incurred) by selling the site. SCOPE argues in its reply brief that the Corps erred by relying in part on average concentrations, but the district court rejected this argument, and SCOPE abandoned it on appeal by failing to raise it in its opening brief, see TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc. , 915 F.2d 1351, 1353 n.1 (9th Cir. 1990). Although SCOPE faults the Corps for not expressly rejecting the use of the NMFS Memorandum, the Corps responded to the letter attaching the Memorandum, reiterated its reasoning, and explained that it had concluded that the Project would not affect steelhead. We can thus reasonably discern that the Corps concluded that the NMFS Memorandum was inapplicable. See Alaska Dep't of Envtl. Conservation v. EPA , 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). SCOPE does not point to any public comment disputing the use of the CTR. Although SCOPE contends that the CTR criteria were inapplicable because "unacceptable adverse effects" as defined in the CTR do not include the kind of sublethal impacts considered in the NMFS Memorandum, the Corps could reasonably conclude that the CTR's site-specific calculations were more applicable to the steelhead population at issue in the Santa Clara River. Similarly, because the Supplemental Analysis was not necessary to support the Corps's determination that the Project would not affect the steelhead, we do not consider SCOPE's argument that the Supplemental Analysis's projections were substantively flawed. NMFS did not request formal consultation with the Corps regarding the Southern California steelhead. Rather, NMFS responded to an inquiry from the Corps regarding the status of Southern California steelhead and its critical habitats, informing the Corps "the Santa Clara River basin upstream from its confluence with Piru Creek ... is not currently considered by NMFS to be part of the critical habitat designation" for Southern California steelhead and stating that "[f]or those projects the Corps determines will have no effect, there is no need to seek concurrence from, or consult further with, NMFS." SCOPE emphasizes that the Corps received numerous comments stating it had an obligation to consult with NMFS, but such requests made to the Corps do not trigger the Corps's obligation to consult under the ESA. See 50 C.F.R. § 402.14(a).

Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers

MARCUS, Circuit Judge: In this appeal, we consider — for the second time — whether the United States Army Corps of Engineers’ (“Corps”) 2012 decision to reissue Nationwide Permit 21 (“NWP 21”), a general permit regulating discharge of dredged or fill materials into navigable waters by surface coal mining operations, was arbitrary and capricious. Under Section 404 of the Clean Water Act (“CWA”), the Corps may authorize the discharge of fill materials into navigable waters of the United States by issuing a “general permit” only if those activities will result in minimal individual and cumulative adverse effect on the aquatic environment. See 33 U.S.C. § 1344(e)(1). And the National Environmental Policy Act (“NEPA”) requires that federal agencies evaluate whether their proposed actions are likely to have a significant impact on the environment. See 42 U.S.C. § 4332. The 2012 NWP 21 imposes strict discharge limits on all new surface mining activities, but grandfathers in activities approved under a previous iteration of NWP 21 so long as they do not exceed previously approved discharge levels and meet other conditions imposed by a regional Corps official. At the headwaters of this litigation, Black Warrior Riverkeeper, Inc., and Defenders of Wildlife (collectively “Riverkeeper”), two concerned environmental groups, filed suit under the Administrative Procedure Act, 5 U.S.C. § 706, claiming that the Corps’ decision to reissue NWP 21, as well as its environmental impact findings under the CWA and NEPA, were arbitrary and capricious. The first time around, the district court granted summary judgment to the Corps and Riverkeeper appealed. However, on the eve of oral argument, the Corps admitted that it had failed to consider certain important information in reaching its decision, so we remanded the case to the district court, which in turn remanded it to the Corps for further review. After considering the omitted data, the Corps reaffirmed its decision to issue NWP 21. River-keeper renewed its challenges, and the district' court once again granted final summary judgment in favor of the Corps. Riverkeeper again appeals, arguing that the Corps’ decision to treat new and old activities differently can’t hold water. After thorough review and with the benefit of oral argument, we affirm. I. A. As we explained the first time we heard this case, see Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs., 781 F.3d 1271, 1275-78 (11th Cir. 2015), River-keeper’s challenge involves several complex statutory and regulatory schemes designed, in substantial measure, to ensure that federal agencies conduct a thorough assessment of the environmental impacts of their proposed actions. The Clean Water Act prohibits the “discharge of any pollutant” into “navigable waters” unless in compliance with specified provisions of the Act. 33 U.S.C. §§ 1311(a), 1344(a); see also U.S. Army Corps of Eng’rs. v. Hawkes Co, Inc., — U.S. -, 136 S.Ct. 1807, 1811, 195 L.Ed.2d 77 (2016). “Pollutant” includes “rock” and “sand,” 33 U.S.C. § 1362(6), and “[njavigable waters” encompass all “waters of the United States,” id. § 1362(7). Despite the CWA’s general prohibition on the discharge of pollutants, Section 404 of the Act expressly authorizes the Secretary of the Army, through the Corps, to regulate discharges of dredged or fill material — a subset of “pollutants”— into waters of the United States through the issuance of permits. See 33 U.S.C. § 1344. These permits can take the form of either individual permits, § 1344(a), or general permits, which authorize certain categories of discharges on a state, regional, or nationwide basis, § 1344(e). The Corps reviews “individual” permit applications on a case-by-case basis under Section 404(a). Id. § 1344(a). Individual permits may be issued or denied after a review involving, among other things, site-specific documentation and analysis, opportunity for public hearing, public interest review, and a formal' determination that the permit is lawful and warranted. See 33 C.F.R. § 323.3 (specifying activities requiring permits); 33 C.F.R. pts. 320, 323, 325 (policies and procedures for permit processing). Issuing an individual permit “requires a resource-intensive review that entails submission of voluminous application materials, extensive site-specific research and documentation, promulgation of public notice, opportunity for public comment, consultation with other federal agencies, and a formal analysis justifying the ultimate decision to issue or refuse the permit.” Crutchfield v. County of Hanover, 325 F.3d 211, 214 (4th Cir. 2003). To avoid the burden of individual permit evaluations,- Congress authorized the Corps to issue general permits to cover categories of discharges that, as a group, have only minimal impacts on the waters of the United States. H.R. Rep. No. 95-830, at 98 (1977). General permits may be issued “on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material” by the Corps’ Chief of Engineers or a District Engineer, which is a regional official, but only after an extensive administrative process and analysis at the national or regional level. 33 U.S.C. § 1344(e)(1). Before issuing a general permit, then, the Corps must provide public notice and an opportunity for a hearing. Id. And before it can be issued, the Corps must determine that the proposed general permit meets three conditions: the activities authorized by the permit must (1) be “similar in nature,” (2) cause only “minimal adverse environmental effects when performed separately,” and (3) “have only minimal cumulative adverse effect on the environment.” Id. In determining whether the environmental effects of a general permit will be minimal, the Corps must consider a range of factors relating to the impact of discharges on aquatic ecosystems and the humans who use them, and must then document the environmental effects of the activities authorized by the permit in a decision document. See 40 C.F.R. pt. 230 (2014). After performing this evaluation, the Corps must make a written determination of the effects of a proposed activity “on the physical, chemical, and biological components of the aquatic environment.” 40 C.F.R. §230.11. The decision document must provide specific documentation showing that each of the § 1344(e) conditions has been met, and the evaluation “must be completed before any General permit is issued.” See 40 C.F.R. § 230.7(b). The Corps is also required to comply with the National Environmental Policy Act. NEPA serves the dual purpose of informing agency decisionmakers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to members of the public so that they “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA’s mandate to agencies is “essentially procedural.... It is to insure a fully informed and well-considered decision.... ” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Thus, “it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350, 109 S.Ct. 1835. NEPA requires federal agencies to prepare an Environmental Impact Statement for any “major Federal action[] significantly affecting the quality of the human environment,” which can include nationwide permits issued by the Corps. 42 U.S.C. §4332(2)(C); 33 C.F.R. § 330.5(b)(3). The agency first prepares an Environmental Assessment, which is essentially a preliminary account of the environmental effects of a proposed action. See 40 C.F.R. §§ 1501.4, 1508.9. If the Environmental Assessment suggests that the effects of the action are likely to be significant, the agency must issue the more detailed Environmental Impact Statement. See id. § 1501.4(c). Otherwise, it issues a Finding of No Significant Impact. Id. § 1501.4(e). B. This case involves a challenge to Nationwide Permit 21 (“NWP 21”), a general permit issued by the Corps. On February 21, 2012, after affording the public the opportunity to participate in an administrative process that included notice and comment, the Corps issued fifty nationwide permits, including NWP 21. Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184 (Feb. 21, 2012). NWP 21 authorizes “[discharges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations.” Id. at 10,274. Surface coal mining involves the discharge of dredged or fill material in a variety of ways. To reach underground coal seams, surface mining operations must dig through and remove a mixture of soil, rock, and coal residue commonly referred to as “overburden,” which is replaced once the coal has been extracted. Excess overburden must be deposited somewhere else — occasionally filling or burying streams, or in the form of a much larger “valley fill,” which is exactly what it sounds like. In other cases, the coal seam runs underneath the stream itself, and the operation will “mine through” the stream. Mining operations also generate and discharge material when they create sediment ponds and build roads, processing plants, and other mining infrastructure. As a result of the mining process, drainage from the mining site, which contains substantial amounts of sediment, salt, and metals, can seep into and contaminate larger waterways. This runoff may continue for decades after the mine has closed. The discharge of dredged or fill material, therefore, may have consequences for water quality and the health of aquatic ecosystems throughout the entire watershed. The Corps has long struggled to ensure that the environmental impacts of surface mining operations are minimal. Nationwide Permit 21 was first issued in 1982, see Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,833 (July 22,1982), and has subsequently been amended and reissued many times. The 2007 version did not place any limits on the length of streams that could be filled by authorized activities, gee Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,184 (Mar. 12, 2007). The Corps eventually became concerned that activities authorized by NWP 21 were resulting in greater environmental impacts than anticipated, and it suspended NWP 21 in six states in the Appalachian Region in 2010: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. gee guspension of Nationwide Permit 21, 75 Fed. Reg. 34,711, 34,712 (June 18, 2010). The Corps did not suspend NWP 21 in Alabama, although the Environmental Protection Agency subsequently stated in a letter to the Corps that “the same concerns and science that brought about the six state suspension appl[y] to the coal fields of Alabama.” The 2007 NWP 21 expired on March 18, 2012. Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,-092. In 2012, the Corps adopted a new course intended, in part, to “address[] the concern that led to [its] previous suspension of NWP 21 in the six Appalachian states.” Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,205. During the notice and comment period, the Corps proposed three options for reauthorizing NWP 21 after its expiration: The first option was not to reissue NWP 21 and to let it expire on March 18, 2012.... Option 2 was to reissue NWP 21 with a [é-acre limit, including a 300 linear foot limit for the loss of stream bed. Under Option 2, NWP 21 would not authorizes discharges of ... valley fills.... Option 3 was similar to Option 2, but under Option 3 NWP 21 could authorize discharges of ... valley fills. In 2012, the Corps “selected Option 2 for the reissuance of NWP 21, and [] made some additional modifications to reduce hardships on permittees who previously obtained authorization under the NWP 21 issued on March 12, 2007, and invested substantial resources in reliance on that NWP authorization.” As a result, the 2012 version of NWP 21, which authorized stream-filling operations for an additional five years, consisted largely of two new provisions. First, paragraph (a), which functions as a grandfathering provision, allows for the reauthori-zation of operations that were previously authorized under the 2007 NWP 21, subject to verification by a district engineer that the activity will not impact more waters than previously authorized under the 2007 NWP, will continue to cause only minimal individual and cumulative adverse effects, and will comply with any additional activity-specific conditions that the district engineer deems appropriate, such as compensatory mitigation. Id. at 10,274. As for new operations, paragraph (b) adds several specific limits on stream-filling activity, including a requirement that discharges “must not cause the loss of greater than Jé-acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed.” Id. Permitted activities under 21(b) also may not involve the construction of valley fills. Id. The new limits provided by paragraph (b) do not apply to grandfathered reauthoriza-tions under paragraph (a) — and that disparate treatment forms the crux of the Riv-erkeeper’s challenge in this case. Along with the revised permit, the Corps issued a sixty-four page Decision Document explaining the rationale behind its revisions, which included the Corps’ Clean Water Act and National Environmental Policy Act analyses. Specifically, the Corps estimated that, in total, NWP 21 would be used approximately 61 times per year on a national basis, resulting in impacts to approximately 26 acres of waters of the United States, and requiring approximately 62 acres of compensatory mitigation to offset the impacts. The Corps concluded, as required by the CWA, that activities authorized by NWP 21 would not have more than minimal cumulative adverse effect on the environment. It also concluded, pursuant to NEPA, that NWP 21 would not significantly affect the environment, and that an Environmental Impact Statement would therefore not be required. Certain portions of the Decision Document suggested that the limitations imposed on new authorizations under paragraph 21(b) were “necessary to constrain the adverse effects to the aquatic environment, to ensure compliance with the statutory requirement that general permits, including NWPs, may only authorize those activities that have minimal individual and cumulative adverse effects on the aquatic environment.” C. Riverkeeper is an environmentalist group whose members use waters of the Black Warrior River watershed, in west-central Alabama, that flow downstream from mining sites authorized to discharge material under NWP 21. According to Riv-erkeeper, these projects have had a profound effect on the quality of the waters within the Black Warrior River watershed. Its members have observed, for example, that waters downstream from mining sites are discolored and clouded with sediment and silt. Impaired water quality, they claim, has “decrease[d] [their;] aesthetic and recreational enjoyment, reduce[d] their opportunities to observe wildlife, and cause[d] them concern about ingesting the water and fish caught in the water.” To take just one example, Riverkeeper alleges that several coal mines permitted under NWP 21(a) ultimately drain into the Locust Fork of the Black Warrior River, near Birmingham, releasing sedimentation, solids, and chemical compounds. Riverkeeper fears that what it calls the resulting “dirty or polluted water” will deter its members and others from using the river for recreation — the Locust Fork is one of the most popular whitewater paddling locations in the state — as well as harm local wildlife. In order to block the forty-one reauthor-izations granted by the Corps pursuant to NWP 21(a) and therefore avert further claimed environmental damage, Riverkeeper filed this lawsuit in the United States District Court for the Northern District of Alabama on November 25, 2013, against the Corps and several Corps officials. The gravamen of Riverkeeper’s complaint is that it was contradictory for the Corps to impose stringent stream-fill limits on new operations, but, at the same time, decline to apply those very same limits to operations previously authorized by the 2007 NWP 21 and subsequently reauthorized by the 2012 version. To put it slightly differently, Riverkeeper’s argument is that the Corps could not rationally have found (as the Decision Document suggested) that these new limits were “necessary” to avoid significant environmental impacts, and then conclude regardless that the impacts of grandfathered projects would be minimal. Specifically, Riverkeeper’s complaint raised four counts: (1) paragraph (a) of NWP 21, in effect, amounts to an unlawful ten-year permit term, in violation of 33 U.S.C. § 1344(e)(2); (2) the Corps’ cumulative effects analysis under the CWA was arbitrary and capricious, in violation of 5 U.S.C. § 706 and 33 U.S.C. § 1344(e)(1); (3) th.e Corps’ issuance of reauthorizations in the Black Warrior River watershed pursuant to NWP 21 was arbitrary and capricious, in violation of 5 U.S.C. § 706 and 33 U.S.C. § 1344(e)(1); and (4) the Corps’ Finding of No Significant Impact under NEPA was arbitrary and capricious, in violation of 5 U.S.C. § 706 and 42 U.S.C. § 4332(c). Eight days after it initiated this suit, Riverkeeper moved for a preliminary injunction to suspend all reauthorizations in the Black Warrior River watershed. On December 23, 2013, the Alabama Coal Association and several mining companies— MS & R Equipment Co., Inc., Reed Minerals, Inc., Twin Pines, LLC, and Walter Minerals, Inc. — moved to intervene, citing the harm that Riverkeeper’s requested injunction would cause to th'eir mining operations. Their motion to intervene was granted without objection from Riverkeeper. At a February 2014 hearing on River-keeper’s motion for a preliminary injunction, the district court refused to hear any argument on the merits because River-keeper could not post a $300,000 bond. The district court denied Riverkeeper’s motion on February 18. Riverkeeper then moved for summary judgment on February 20. At a hearing on March 3, Riverkeeper voluntarily dismissed Count 3 of its complaint, claiming that it was no longer directly challenging the forty-one reauthorizations. On April 2, the Corps filed a cross-motion for summary judgment, addressing the merits; a week later, the Intervenors filed their motion to dismiss or for summary judgment, addressing the merits as well as standing and laches. Ultimately, the district court concluded that Riverkeeper had standing under Article III of the U.S. Constitution and the Administrative Procedure Act to mount this lawsuit, but that its claims were barred by the doctrine of laches, and, in any event, failed on the merits. The district court rejected the Intervenors’ argument that Riverkeeper lacks standing to challenge a permit under § 404 because Riverkeeper’s injuries, which flow from diminished downstream water quality, were cognizable under § 404 and traceable to NWP 21. The district court did, however, decide that Riverkeeper’s delay in commencing this lawsuit was inexcusable, and that the Intervenors suffered palpable prejudice because they acted in reliance on reauthorizations granted under NWP 21. Finally, the district court concluded that the Corps did not act arbitrarily and capriciously in concluding that NWP 21 would have no more than minimal cumulative adverse effect on the environment. River-keeper timely appealed to this Court. On March 23, 2015, a panel of this Court vacated the district court’s decision. See Black Warrior Riverkeeper, 781 F.3d at 1292. It agreed with the district court that the plaintiffs had standing to pursue both its Clean Water Act and National Environmental Policy Act claims challenging the reissuance of NWP 21. Id. at 1283. But it found that the district court had abused its discretion in finding that the plaintiffs’ suit was barred by laches, both because they had shown adequate excuse for their delay in filing suit and because their delay did not prejudice the defendants or interve-nors. Id. at 1284-85, 1287. Turning to the merits, the panel explained that Riverkeeper challenged only a single error of the Corps’ reasoning, which it called the “differential treatment error.” Id. at 1288. In short, Riverkeeper argued that “it was arbitrary and capricious for the Corps to conclude, on the one hand, that the new stream-fill limits contained in paragraph (b) of NWP 21 are necessary to avoid significant environmental effects, but on the other, to decline to apply them to projects reauthorized pursuant to paragraph (a).” Id. However, the panel concluded that it could not resolve the merits of the suit because “the Corps admitted on the eve of oral argument that it underestimated the number of acres of waters that may be impacted by NWP 21.” Id. at 1288. Specifically, the Corps had failed to “take into account that activities re-verified under paragraph (a)” — the grandfathered-in activities that were not subject to the new limitations imposed by paragraph 21(b)— “could impact more than a half-acre of waters of the United States.” Id. On this murky record, the Court could not discern whether the Corps’ error was “truly significant” and whether the Corps’ “ultimate conclusion — that NWP 21 will haye minimal effects — was unlawful.” Id. The panel declined to vacate NWP 21, concluding that vacatur was not mandatory and that it had the equitable discretion to remand the matter to the Corps without vacating the agency’s action. Id. at 1289. However, viewing the undeveloped record, the panel could not decide in which direction the equities tipped. Id. at 1291. Therefore, the panel vacated the district court’s decision and remanded with instructions to the district court to remand the case to the Corps with a one-year time limit to reconsider its decision, and to determine whether any further relief, including vacatur, was required in light of the Corps’ admitted error. Id. D. The district court sent the case back upstream to the Corps “for a thorough reevaluation of the Corps’ CWA and NEPA determinations in light of all of the relevant data, including the Corps’ recalculated figure for the acreage of waters affected by NWP 21.” It ordered that the reevaluation be accomplished within a year and stayed the case pending completion of the reevaluation. But the district court declined to vacate NWP 21 pending reevaluation because the reevaluation would take less than a year and there was “no indication that intervenors intend to perform material alterations to the subject water quality while the reconsideration is ongoing.” Six weeks later, on August 7, 2015, the Corps submitted a Revised Decision Document to the district court. The Revised Decision Document did not result in any changes to NWP 21, but did provide an updated analysis of the impacts of the permit. It analyzed the actual impact of paragraph (a), which was the flaw that the Corps had confessed to on the eve of oral argument. Because paragraph (a) required new verifications of the previously authorized projects to issue before March 18, 2013, a date which had long passed by the time the Revised Decision Document was drafted, the Corps was able to provide an estimate of environmental impact that encompassed all of the NWP 21(a) verifications that could be issued. In all, 88 verifications were issued under 21(a), with impacts to approximately 503 acres and 280,700 linear feet of waters of the United States. To offset those impacts, the Corps required compensatory mitigation of approximately 653 acres and 377,-300 linear feet. The Corps determined that 21(b) would be used approximately 7 times per year nationwide, resulting (over the life of the permit) in impacts to approximately 6.5 acres and 17,000 linear feet of waters of the United States, and requiring 11.5 acres and 21,000. linear feet of compensatory mitigation to offset the impacts. Thus, on average, each of the 21(a) authorizations impacts nearly 6 acres and 3,200 linear feet of waters of the United States (in comparison with the )4-aere and 300 linear feet limits imposed on all' 21(b) authorizations). The Revised Decision Document contained essentially the same statements on which the Riverkeeper’s “differential treatment error” argument had been based. For example, it states that the acreage and linear foot limits in NWP 21(b) “are necessary to constrain the adverse effects to the aquatic environment to ensure compliance with the statutory requirement that general permits, including NWPs, may only authorize those activities that have minimal individual and cumulative adverse effects on the aquatic environment.” It also provides that “[t]he new acreage and linear foot limits will ensure that this NWP contributes no more than minimal individual and cumulative adverse effects to the aquatic environment,” and that “[t]he Corps has determined that the changes to NWP 21 are necessary to comply with the requirements of Section 404(e) of the Clean Water Act.” The Corps’ overall findings were not affected by its adjustment to the impact of 21(a). It concluded, as required by the CWA, that “despite the higher impact and compensatory mitigation amounts expected to occur across the country during the five year period this NWP is in effect, ... the individual and cumulative adverse effects on the aquatic environment resulting from-the activities authorized by this NWP will be minimal.” The Corps also made a “Finding of No Significant Impact” under NEPA. After reviewing the Revised Decision Document, the parties renewed their cross-motions for summary judgment. The district court again granted the Corps’ motion for summary judgment and denied the plaintiffs’ motion for summary judgment. It noted that Riverkeeper raised the same “differential treatment error” argument based on language in the Revised Decision Document that is indistinguishably similar to the language it relied on in the original decision document. The court rejected that argument because it determined that statements in the Revised Decision Document that the changes to NWP 21 were “necessary” to ensure minimal environmental impact logically referred to all changes and all new terms and conditions, not just the changes in 21(b). Moreover, the district court determined that the Corps took a hard look at the entire record before reaching its CWA and NEPA determinations, and that the decision to treat grandfathered-in permits under 21(a) differently than new permits under 21(b) was not arbitrary and capricious because the Corps considered the permit as a whole in making its finding of no significant impact. Riverkeeper timely appealed to this Court for the second time. II. “We review the district court’s decision to grant summary judgment to the Corps and the Intervenors on the merits de novo, while applying the appropriate standard of review to the agency’s decision.” Black Warrior Riverkeeper, 781 F.3d at 1288. We review the Corps’ permitting decisions, as well as its Finding of No Significant Impact and decision not to prepare an Environmental Impact Statement pursuant to NEPA, under the Administrative Procedure Act’s arbitrary and capricious standard. Black Warrior River-keeper, 781 F.3d at 1288. Under the Administrative Procedure Act, we must “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. The arbitrary and capricious standard is a highly deferential one, and we cannot substitute our judgment for that of the agency as long as the agency’s conclusions are rational and reasonably explained. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). Our inquiry is limited by law to whether the agency’s decision was based on a consideration of the relevant factors and, ultimately, whether it made a clear error of judgment. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). Our deference extends both to an agency’s ultimate findings as well as “drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue.” Van Antwerp, 526 F.3d at 1361. While we should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), “[w]e may not supply a reasoned basis for the agency’s action that the agency itself has not given,” 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). Our task ultimately is to “ensure that the agency took a ‘hard look’ at the environmental consequences of the proposed action.” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002). An agency has satisfied the “hard look” requirement if it has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (quotation marks omitted). III. A. In view of the substantial deference we afford agency action, Riverkeeper faces an upstream swim. It renews its “disparate treatment” argument, contending again that the Corps’ CWA and NEPA determinations are arbitrary and capricious because the Corps determined that the new íé-acre and 300 linear-foot limits imposed on permits under 21(b) are necessary to ensure minimal environmental impact, but declined to impose any of those new limitations on the grandfathered-in permits under 21(a). In other words, Riverkeeper says that the activities authorized under 21(a) cannot possibly result in minimal impact to navigable waters because they are not subject to the very limitations that the Corps itself deemed necessary to ensure minimal impact. It observes that 41 of the 88 authorizations under 21(a) are located in the Black Warrior River Watershed, and those 41 authorizations will allow an additional 25 miles of stream impacts that would not occur if they were subject to the limitations found in 21(b). Therefore, it asks us to vacate the grandfather provision in NWP 21(a) and all of the authorizations issued thereunder. Ultimately, we find that Riverkeeper’s arguments can’t swim against the tide. For starters, we think that the text of NWP 21(a) goes a long way to supporting the Corps’ determination that authorized activities under 21(a) will have minimal individual and cumulative adverse effects. NWP 21(a) provides that a previously authorized mining activity under the 2007 NWP 21 can only be reauthorized under 21(a) if a district engineer determines that: the activity does not create any greater “loss of waters” than it did under the 2007 permit; the activity “will result in minimal individual and cumulative adverse effects”; and it complies with additional “applicable regional conditions and any activity-specific conditions added to the NWP authorization by the district engineer, such as compensatory mitigation requirements.” Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,274 (emphasis added). These explicit requirements apply to all 21(a) authorizations and substantially undercut Riverkeeper’s argument that the new 21(b) limitations are the only way that the Corps can ensure minimal individual and cumulative adverse environmental effects. On its face, Rule 21(a) expressly requires a district engineer to determine that a grandfathered-in permit will have minimal effects before authorizing it. Riv-erkeeper has not provided any reason to believe that NWP 21(a) will fail to operate according to its terms, or that the district engineers will abandon the many tasks they are obliged to perform. In fact, the Revised Decision Document explains that NWP 21(a) will operate exactly as the text suggests it will: “For those previously authorized surface coal mining activities, the district engineer must determine that the activity continues to result in minimal individual and cumulative adverse effects on the aquatic environment.” The Revised Decision Document later emphasizes that NWP 21(a) activities must be confirmed by the district engineer to “result[] in minimal individual and cumulative adverse effects on the aquatic environment,” and that the district engineer can revise any applicable regional conditions and activity-specific conditions, including compensatory mitigation requirements, “if the existing ones are determined not to be adequate to ensure minimal adverse effects.” And, indeed, if the district engineer determines that the cumulative adverse effects of NWP 21-authorized activities are more than minimal in a “specific watershed” (such as the Black Warrior River Watershed), they are authorized to require individual permits or add conditions to the NWP on a case-by-case basis. Finally, the Revised Decision Document reiterates what the text of NWP 21(a) should make clear: if a previously verified activity is expanded in such a way that it will “result in greater losses of waters of the United States,” it cannot be authorized under NWP 21 unless it qualifies under NWP 21(b). Thus, from the explicit restrictions placed on activities under 21(a), it naturally follows that 21(a) authorizations will have minimal environmental -impact. Moreover, the Corps considered both the 21(a) and (b) authorizations in evaluating whether the permits met the CWA’s and NEPA’s minimal impact requirements. The Revised Decision Document makes it abundantly clear throughout that the minimal impact analysis is based on both 21(a) and (b) activities: The estimated contribution of this NWP to the cumulative effects to aquatic resources in the United States during the five year period that the NWP would be in effect, in terms of the estimated number of time this NWP would be used until it expires and the projected impacts and compensatory mitigation, is provided in Section 6.2.2. The activities authorized by this NWP, including the activities authorized under paragraphs (a) and (b) of this NWP, will result in a minor incremental contribution to the cumulative effects that have occurred to wetlands, streams, and other aquatic resources in the United States because, as discussed in this section, they are one of many activities that affect those resources. The Corps’ minimal impact analysis plainly considered data for “all of the NWP 21(a) verifications that could be issued during the period [the 2012] NWP 21 is in effect,” which was available at the time of the Revised Decision Document “because the terms of NWP 21(a) state that those verifications should generally be issued on or before March 18, 2013,” and the Revised Decision Document was produced in August 2015. Thus, it seems to’ us that the Corps considered the relevant factors in performing its environmental impact analysis. Riverkeeper does not contest the accuracy of the environmental impact estimates provided by the Corps, nor does it explain why the actual acreage impacts of projects under 21(a) — for which the Corps had confirmed data at the time it drafted the Revised Decision Document — are more than “minimal” as that term is used in the Clean Water Act. Rather, it invites us to parse the language of the Revised Decision Document for statements suggesting that 21(b)’s jé-acre and 300 linear-foot limits are the only means of ensuring minimal environmental impact. As we recounted above, there are a few statements in the Revised Decision Document that suggest that the 21(b) limitations are “necessary” to ensure minimal environmental impacts. But, under arbitrary and capricious review, we must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc., 419 U.S. at 286, 95 S.Ct. 438. And we have no trouble discerning that the Corps considered the limitations imposed under both sections of NWP 21, as well as general permit conditions applicable'to all NWPs in reaqhing its environmental impact determinations. In estimating the environmental impact of the new NWP 21, the Corps assessed “individual and cumulative effects” by considering “the terms and limits of the NWP, pre-construction notification requirements,[] and the standard NWP general conditions.” The Revised Decision Document repeatedly states that the Corps’ environmental impact determinations were based on both 21(a) and (b) activities and the wide array of means available to limit the impact of activities under both provisions. Specifically, it noted that “the imposition of the acre limit, 300 linear foot limit, and prohibition against authorizing valley fills on activities that were not previously authorized under the 2007 NWP 21, as well as the pre-construction notification requirements and other procedural safeguards, will authorize only those activities with minimal individual and cumulative adverse effects on the aquatic environment.” These “other procedural safeguards include the authority for division engineers to modify, suspend, or revoke NWP 21 authorizations on a regional basis, and the authority for district engineers to modify NWP 21 authorizations by adding conditions, such as compensatory mitigation requirements, to ensure minimal individual and cumulative adverse effects on the aquatic environment.” The Revised Decision Document elaborates that “[ejompensatory mitigation required for activities verified under the 2007 NWP 21 [i.e., the 2012 grandfathered activities under 21(a) ] will continue to be required, and may be augmented if the district engineer determines that they do not adequately compensate for losses of aquatic resource function and ensure minimal adverse effects.” In fact, the Corps’ ultimate “minimal impact” finding explicitly referenced all of the limits that NWP 21 imposes on permitted activities, not just those contained in 21(a): “Compliance with the terms and conditions of this NWP, including the mitigation general condition (general condition 23), as well as compliance with regional conditions imposed by division engineers and activity-specific conditions added to NWP verifications by district engineers, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse effects on the aquatic environment.” Thus, it seems plain to us that the Corps took a hard look at the environmental impact of authorizations under both 21(a) and (b), and determined that the restrictions imposed on each set of authorizations were sufficient to ensure that they result in no more than minimal individual and adverse cumulative effects. Throughout the Revised Decision Document, the Corps placed special reliance on compensatory mitigation as a means of ensuring minimal net environmental impacts. Riverkeeper criticizes the Corps’ reliance on compensatory mitigation as a “simplistic calculation” based on the erroneous assumption that compensatory mitigation will always fully offset the adverse environmental impacts of dumping surface spoil in streams. But nothing in the Revised Decision Document suggests that the Corps’ relied on compensatory mitigation to fully offset the environmental impacts of permitted activities — indeed, the Corps’ analysis suggests that compensatory mitigation is simply one of many restrictions applicable to 21(a) and (b) authorizations that will help to ensure that NWP 21 authorizations meet statutory requirements. The Corps candidly conceded in the Revised Decision Document that “it is difficult to assess whether compensatory mitigation has fully or partially offset the lost functions provided by the aquatic resources that are impacted by permitted activities,” but determined that so long as its general guidelines are followed, compensatory mitigation “will provide aquatic resource functions and services to offset some or all of the losses of aquatic resource functions caused by the activities by this NWP, and reduce the contribution of those activities to the cumulative effects on the Nation’s wetlands; streams, and other aquatic resources.” Moreover, we must afford the Corps special deference in this area because it “is making predictions, within its area of special expertise, at the frontiers of science ... as opposed to simple findings of fact.” Miccosukee Tribe, 566 F.3d at 1264. As evidenced by the numerous scientific research papers discussed in the Revised Decision Document, the minimum impact analysis involves difficult predictions about how coal mining activities will affect complex ecosystems, and how district engineers will be able to offset those effects through permit-specific requirements and compensatory mitigation. This is not an area where we may easily second-guess the Corps, especially considering that Riv-erkeeper has not contested any of the Corps’ data or even argued that its estimates exceed “minimal” impact as that term is used in the CWA. For all of these reasons, we find that the Corps’ environmental impact findings under the CWA and NEPA were not arbitrary and capricious. B. Relatedly, the Riverkeeper claims that the Corps has not articulated a sufficient rationale for treating similar mining activities differently under NWP 21(a) and (b). See Yetman v. Garvey, 261 F.3d 664, 669 (7th Cir. 2001) (“A long line of precedent has established that an agency action is considered arbitrary when the agency has offered insufficient reasons for treating similar cases differently.”). It argues that the only reason for the differential treatment is to alleviate the coal mining companies’ financial burden of obtaining individual permits, which Riverkeeper maintains is not a permissible consideration under the Clean Water Act. We remain unpersuaded. Riverkeeper is correct that one of the Corps’ principal justifications for grandfathering in 21(a) permits was economic hardship to the regulated companies. Indeed, the Revised Decision Document acknowledged that the purpose of including the grandfather provision under 21(a) was “to reduce hardships on permittees who previously obtained authorization under the NWP 21 issued on March 12, 2007, and invested substantial resources in reliance on that NWP authorization,” while also protecting the aquatic environment. We also agree with Riverkeeper that — as the Corps concedes — the Corps could not rely on economic considerations to issue a general permit that does not comply with the Clean Water Act’s minimal impact requirements. Nevertheless, Riverkeeper’s argument is unpersuasive. For starters, the Corps was not required to impose identical restrictions on applications under the two provisions of NWP 21. The Clean Water Act requires only that the activities governed by a general permit are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” 33 U.S.C. § 1334(e)(1). As we’ve explained already, there is nothing arbitrary or capricious about the Corps’ decision that activities under both NWP 21(a) and (b) will have minimal individual and cumulative adverse impacts, and Riverkeeper does not contend that the two groups of activities are insufficiently similar in nature to be encompassed by a general permit. Under arbitrary and capricious review, we may set aside the Corps’ decision “only for substantial procedural or substantive reasons as mandated by statute”; we may not erect non-statutory dams to impede the Corps’ discretion. Fund for Animals, 85 F.3d at 542 (emphasis added) (quoting N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1539 (11th Cir. 1990)). Nothing in the CWA or NEPA precluded the Corps from relying on economic considerations in choosing between alternatives that have minimal aquatic impacts in order to ensure that mining companies were not unfairly burdened by the new permit requirements. Moreover, the Revised Decision Document evinces an additional, reasonable basis for treating authorizations under 21(a) and (b) differently. Paragraph (a) only applies to a well-defined and limited subset of activities that can be reliably verified to have minimal environmental impact. At the time that it drafted the 2012 NWP 21, the Corps knew the entire universe of potential projects under 21(a) because they had all already been operating for five years by that time, and, notably, by the time that it drafted the Revised Decision Document, it had impact data for “all of the NWP 21(a) verifications that could be issued during the period [the 2012] NWP 21 is in effect.” In contrast, for new projects under 21(b), the Corps had to rely on estimates of potential use over the five year term. In fact, the Revised Decision Document cited “the difficulty of documenting minimal adverse effect determinations for losses of aquatic resource area and functions that exceed those allowed in other NWPs” as a reason for moving away from preconstruction review and instead imposing strict caps on new projects. But that difficulty is substantially less relevant for grandfathered-in permits that had already been operating for years at the time that NWP 21 was issued. The Corps reasonably concluded that this subset of projects presents less of a risk of harm to the aquatic environment, while deciding to hold new — and, therefore, more unpredictable — projects to a different, and higher, standard. We find that the Corps has provided a “satisfactory explanation for its action” based on its findings in the Revised Decision Document, so we will (as we must) defer to its decision. State Farm, 463 U.S. at 42-43, 103 S.Ct. 2856. The long and short of it is, there was nothing arbitrary and capricious about the Corps’ decision to treat old and new activities differently under the two provisions of this Nationwide Permit, or in its finding that the activities authorized under both provisions would result in minimal individual and cumulative impacts to the aquatic environment. Accordingly, we affirm the judgment of the district court granting final summary judgment to the Corps. AFFIRMED. . The full text of the 2012 NWP 21 provides: 21. Surface Coal Mining Activities. Discharges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations. (a) Previously Authorized Surface Coal Mining Activities. Surface coal mining activities that were previously authorized by the NWP 21 issued on March 12, 2007 (see 72 FR 11092), are authorized by this NWP, provided the following criteria are met: (1) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of Interior, Office of Surface Mining Reclamation and Enforcement; (2) The permittee must submit a letter to the district engineer requesting re-verification of the NWP 21 authorization. The letter must describe any changes from the previous NWP 21 verification. The letter must be submitted to the district engineer by February 1, 2013; (3) The loss of waters of the United States is not greater than the loss of waters of the United States previously verified by the district engineer under the NWP 21 issued on March 12, 2007 (i.e., there are no proposed expansions of surface coal mining activities in waters of the United States); (4) The district engineer provides written verification that those activities will result in minimal individual and cumulative adverse effects and are authorized by NWP 21, including currently applicable regional conditions and any activity-specific conditions added to the NWP authorization by the district engineer, such as compensatory mitigation requirements; and (5) If the permittee does not receive a written verification from the district engineer prior to March 18, 2013, the permit-tee must cease all activities until such verification is received. The district engineer may extend the February 1, 2013, deadline by so notifying the permittee in writing, but the permittee must still cease all activities if he or she has not received written verification from the Corps by March 18, 2013, until such verification is received. (b) Other Surface Coal Mining Activities. Surface coal mining activities that were not previously authorized by the NWP 21 issued on March 12, 2007, are authorized by this NWP, provided the following criteria are met: (1) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of Interior, Office of Surface Mining Reclamation and Enforcement; (2) The discharge must not cause the loss of greater than ‘¿-acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in minimal individual and cumulative adverse effects. This NWP does not authorize discharges into tidal waters or non-tidal wetlands adjacent to tidal waters; and (3) The discharge is not associated with the construction of valley fills. A "valley fill” is a fill structure that is typically constructed within valleys associated with steep, mountainous terrain, associated with surface coal mining activities. Notification: For activities under paragraph (b) of this NWP, the permittee must submit a pre-construction notification to the district engineer and receive written authorization prior to commencing the activity. (See general condition 31.) (Sections 10 and 404) Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,274. . Compensatory mitigation "involves actions taken to offset unavoidable adverse impacts to wetlands, streams and other aquatic resources authorized by Clean Water Act section 404 permits and other aquatic resources authorized by Clean Water Act section 404 permits.” Compensatory Mitigation for Losses of Aquatic Resources, 73 FR 19594-01, 19594 (April 10, 2008). "Compensatory mitigation can be carried out through four methods: the restoration of a previously-existing wetland or other aquatic site, the enhancement of an existing aquatic site’s functions, the establishment (i.e., creation) of a new aquatic site, or the preservation of an existing aquatic site.” Id. . U.S. District Judge Totenberg agreed with the Court on standing and laches, but thought that the Corps’ confessed error was so significant as to require vacatur of NWP 21. Black Warrior Riverkeeper, 781 F.3d at 1292 (To-tenberg, J., concurring in part and dissenting in part). . Riverkeeper concedes that the Revised Decision Document fixed the Corps' previous underestimation error that prevented us from reaching the merits the first time around, and agrees that error is no longer a legal issue in the case. . Pre-construction notification involves evaluating proposed activities to determine whether they result in minimal individual and cumulative adverse effects on the aquatic environment, and whether compensatory mitigation is needed to comply with the minimal adverse environmental effects requirement for general permits. . In Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402 (6th Cir. 2013), the Sixth Circuit invalidated NWP 21(a) as arbitrary and capricious, id. at 413, because the Corps had failed to comply with its own regulations requiring the Corps to provide analysis or documentation to support its determination that compensatory mitigation will ensure minimal adverse effects, id. at 411 (citing 40 C.F.R. §§ 230.7(b), 230.11). For the first time in its reply brief, Riverkeeper argued that the Corps’ failure to provide adequate documentation in support of its compensatory mitigation analysis ran afoul of 40 C.F.R. § 230.7(b). However, "[ajrguments raised for the first time in a reply brief are not properly before a reviewing court.” Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (quotation omitted). . As we noted earlier, in 2010, the Corps suspended the 2007 NWP 21 for mining activities in six Appalachian states. The Revised Decision Document provides that activities that were subject to the 2010 suspension may not apply for authorization under 21(a), and must either seek individual permits or fit within the 21(b) limits. This further supports the Corps' reasonable judgment to treat 21(a) and (b) activities differently, as 21(a) activities are already a less risky subset of the prior NWP 21 activities.

Sierra Club, Inc. v. Bostick

BACHARACH, Circuit-Judge. This case involves the authority of the U.S. Army Corps of Engineers to issue nationwide permits under § 404(e) of the Clean Water Act. These permits authorize activities involving discharge of dredged or fill material in U.S. waters and wetlands. See 33 U.S.C. § 1344(e) (2012). Exercising this permitting authority, the Corps issued Nationwide Permit 12, which allows anyone to construct utility lines in. U.S. waters “provided the activity does not result in the loss of greater than/6 acre of [U.S. waters] for each single and complete project.” Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012). TransCanada Corporation proposed to rely on the nationwide permit to build an oil pipeline, the Gulf Coast Pipeline, which would run approximately 485 miles and cross over 2,000 waterways. The Corps issued letters verifying that Nationwide Permit 12 would cover the proposed construction. Shortly thereafter, TransCana-da began constructing the pipeline, which has since been completed and is currently transporting oil. Three environmental groups (Sierra Club, Inc.; Clean Energy Future Oklahoma; and East Texas Sub Regional Planning Commission) have challenged the validity of the nationwide permit and verification letters. The district court rejected these challenges and entered judgment for the defendants. In this appeal, we address and reject three sets of claims: • Claims Involving the National Environmental Policy Act (NEPA): The environmental groups argue that the Corps violated NEPA by issuing the nationwide permit without considering the risk of oil spills and the cumulative environmental impacts of pipelines. These arguments are waived. The environmental groups also argue that the Corps issued the verification letters without conducting a NEPA analysis. We conclude that this analysis was not necessary at the verification stage. • Claims Involving the Clean Water Act: According to the environmental groups, the nationwide permit violates the Clean Water Act by (1) effectively authorizing activities with more-than-minimal environmental impacts and (2) unlawfully deferring a portion of the minimal-impacts analysis to project-level personnel. We reject both arguments. The environmental groups have not shown that the permit ' authorizes • activities with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis. • Claims Involving the Nationwide Permit 12: Finally, the environmental groups contend that the Corps incorrectly verified compliance with the nationwide permit without analyzing the cumulative effects or documenting the analysis of cumulative effects. We reject this contention. Corps officials did not need to include a cumulative-effects analysis in the letters, and the record shows that officials conducted the necessary analysis. Based on our conclusions, we affirm the entry of judgment in favor of the defendants. I. Stándard of Review We review the challenges under the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706 (2012). In applying this standard, we will set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012). Review under the APA is narrow: “[T]he agency need only demonstrate that it considered relevant factors and alternatives ... and that the choice it made was reasonable based on that consideration.” Mt. Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994). II. NEPA The environmental groups make two arguments to challenge the district court’s disposition of the NEPA claims: 1. The Corps’ environmental analysis is deficient because the agency failed to consider the risk of oil spills and the cumulative impacts of pipelines. 2. The Corps failed to conduct an environmental analysis when verifying that the pipeline was permissible under the nationwide permit. We reject both arguments. The environmental groups waived their claims involving failure to address oil spills and cumulative impacts, and the Corps was not required to conduct an environmental analysis when verifying compliance with the nationwide permit. A. Requirements of NEPA NEPA requires an agency to take a “hard look” at the environmental impacts of proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In taking this “hard look,” the agency must take appropriate steps: If the venture involves a “major Federal action” that would “significantly affeet[] the quality of the human environment,” the agency must prepare a detailed environmental impact statement. 42 U.S.C. § 4332(2)(C) (2012). But if the future effects are unclear, the agency can prepare an environmental assessment instead of a more detailed environmental impact statement. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). If the environmental assessment shows that the impact would be insignificant, the agency need not provide any further énvi-ronmental report. Id. at 757-58, 124 S.Ct. 2204. B. Issuance of Nationwide Permit 12 The Corps prepared an environmental assessment of activities permitted under Nationwide Permit 12, which is challenged by the environmental groups. They contend the Corps unlawfully failed to consider • the risk of oil spills associated with pipelines and • the cumulative impacts of pipelines. We conclude that these challenges are waived. 1. Waiver: The General Rule and the Pertinent Exceptions Parties challenging an agency’s compliance with NEPA must ordinarily raise relevant objections during the public comment period. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). But two exceptions exist. First, commenters need not point out an environmental assessment’s flaw if it is “obvious.” Id. at 765, 124 S.Ct. 2204. Second, a commenter does not waive an issue. if it is otherwise brought to the agency’s attention. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir.2007). 2. Risk of Oil Spills The environmental groups concede that no commenter raised the oil-spill issue. See Appellants’ Reply Brief at 11. Nonetheless, the environmental groups contend that the issue is not waived because • the risk of oil spills is obvious, and • the Corps knew about the risk of oil spills when issuing the nationwide permit. We reject both of these contentions. The environmental groups have not shown an obvious deficiency in the Corps’ environmental assessment, and the Corps’ knowledge of oil-spill risks does not relate to a deficiency in the Corps’ assessment for the construction, maintenance, and repair of utility lines. a. Obviousness The environmental groups assert that the oil-spill issue is not waived because the risk of oil spills is obvious. We reject this contention. To qualify for this exception, the environmental groups must show that the omission of any discussion of oil-spill risks entailed an obvious flaw in the environmental assessment. The environmental groups argue that the risk of oil spills is obvious. But that is not the groups’ burden. The environmental groups must show thát the assessment for the construction, maintenance and repair of utility lines contained an obvious flaw, not that the agency failed to discuss impacts of an obvious risk associated with certain activity. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (stating that “an [environmental assessment’s] ... flaws might be so obvious that there is no need for a commenter to point them out”). The fact that pipelines create a risk of spillage does not mean that the alleged deficiency in the Corps’ environmental assessment for the construction, maintenance, and repair of utility lines would have been obvious. Nationwide Permit 12 authorized the discharge of dredged or fill.material in the construction, maintenance, and repair of a wide variety of utility lines, including lines to transmit gas, cable, electricity, telephone calls, radio transmissions, sewage, and oil. Appellants’ App. at 488-89; Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, at 10,271-72 (Feb. 21, 2012), In light of the variety of utility lines involved, the Corps focused on the actions that it authorized (discharge of dredged and fill material in the construction, maintenance, and repair of utility lines) rather than the eventual operation of the utility lines. See Appellants’ App. at 528 (assessing the environmental consequences of the activities authorized by Nationwide Permit 12). Once the utility lines were completed, each utility would seek approval from the pertinent regulatory body with jurisdiction over operations. For example, TransCa-nada would need to seek and obtain authorization from the Pipeline and Hazardous Materials Safety Administration, which had jurisdiction over the operation of oil pipelines. See 49 C.F.R. §§ 195.401-402 (2012) (stating the requirements for operation of pipelines). Upon construction of the pipeline, TransCanada could not transport oil until it complied with the Pipeline and Hazardous Materials Safety Administration’s requirements addressing the risk of oil spills, 49 C.F.R. § 194.7 (2012). The environmental groups argue that the Corps’ environmental assessment should have been broader, examining the risks from the utility lines’ operations as well as their, construction. But this criticism relates to the merits of the NEPA claim rather than the obviousness of the alleged deficiency to the Corps. The Corps set out to consider all categories of environmental risks from the activities authorized under Nationwide Permit 12 (as well as the cumulative impacts of other activities affecting the nation’s aquatic resources). Appellants” App. at 528, 530. In considering these categories of environmental risks, the Corps distinguished between the activities that it authorized under the nationwide permit (construction, maintenance, and repair of utility lines) and the utility lines’ future operations. If that view was too restrictive, the deficiency would not have been obvious to the Corps, for TransCanada could not begin operations until it submitted a suitable plan to the Pipeline and Hazardous Materials Safety Administration to address the risk of oil spills. 49 C.F.R. § 194.7 (2012). The environmental groups argue that the risk of oil spills would have been obvious to the Corps because of comments submitted to agencies concerning the proposed Keystone XL project. But these comments would have led the Corps to believe that the risk of oil spills fell within the domain of other agencies, for all of the comments about oil spills had been directed to the Pipeline and Hazardous Materials Safety Administration (rather than the Corps). See Appellants’ App. at 1180-92. In these comments, no one questioned the Corps’ focus on environmental risks from the activities authorized under the nationwide permits (rather than the environmental risks from future operations). Because the Corps ordinarily confined its environmental assessments to impacts from the activities authorized under the nationwide permit (construction, maintenance, and repair of utility lines), rather than the eventual operation of these utility lines, the risk of oil spills would not have alerted the Corps to an obvious deficiency in its environmental assessment. b. Independent Knowledge of the Risk/Otherwise Brought to the Corps’ Attention The environmental groups also assert the oil-spill issue is not waived because the Corps knew about spill risks when issuing the nationwide permit. We reject this argument. Even if the Corps knew about spill risks, this knowledge would not have prevented a waiver. We have recognized an exception to waiver when an issue is brought to the agency’s attention. See p. 1048, above. The Ninth Circuit Court of Appeals has equated this exception and the obviousness exception. See Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir.2011) (“This court has interpreted the ‘so obvious’ standard as requiring that the agency have independent knowledge of the issues that concern petitioners.”). We need not decide whether to adopt the Ninth Circuit’s view, as we have elsewhere concluded that the risk of oil spills would not have created an obvious deficiency in the Corps’ environmental analysis of the construction, maintenance, and repair of utility lines. Even if we were to adopt the Ninth Circuit’s approach, its application here would make little sense. The Corps’ “independent knowledge” would be based on its role as a cooperating agency in the State Department’s environmental impact statement for the Keystone XL Pipeline. This environmental impact statement contained ample discussion of environmental risks involving oil spills. But the environmental impact statement addressed these risks as the domain of a separate agency: the Pipeline and Hazardous Materials Safety Administration. See Appellants’ App. at 1990 (“[Pipeline and Hazardous Materials Safety Administration] is responsible for regulations that require safe operations of hazardous liquid pipelines to protect human health and the environment from unplanned pipeline incidents.”). None of the commenters suggested that the Corps had any responsibility to address the risk of oil spills. We may assume, for the sake of argument, that the Corps knew that issuance of the nationwide permit could lead to installation of oil pipelines, which in turn could create environmental risks from oil spills. How would that knowledge have mattered to the Corps? It considered that risk to fall within another agency’s responsibility. Regardless of whether that view was correct, it went unchallenged in the public comments for the issuance of Nationwide Permit 12 and the State Department’s consideration of the Keystone XL Pipeline. Thus, there would have been little reason for the Corps to consider oil spills in its environmental assessment. In these circumstances, the Corps’ alleged knowledge about oil spills would not have avoided a waiver. 3. Cumulative Impacts The environmental groups also argue the Corps violated NEPA by failing to consider the cumulative impacts of oil pipelines. This argument is also waived, as no commenter objected to the Corps’ assessment on this ground. As discussed, parties challenging an agency’s compliance with NEPA must raise relevant objections during the comment period. See p. 1048, above. These objections must specifically raise the issue presented on appeal; if the objections do not raise the issue, it is waived. See Ariz. Pub. Serv. Co. v. E.P.A., 562 F.3d 1116, 1127 (10th Cir.2009) (stating that the appellant could not “rely on general or vague commentary ... to avoid the established principles of waiver” (citing Appalachian Power Co. v. E.P.A., 251 F.3d 1026, 1036 (D.C.Cir.2001))). Some commenters mentioned cumulative impacts in other contexts, such as aquatic areas. But no one discussed a need for the Corps to consider the cumulative impacts on dry-land areas. For example, some commenters objected to the use of multiple permits for multiple water crossings associated with one linear project. See Appellants’ App. at 480-81. In the view of these commenters, the use of multiple permits might “prevent the Corps from assessing the [overall] cumulative effects” of one linear project. Id. at 481. Another commenter requested that the Corps apply the half-acre limit to entire linear projects (rather than each water crossing) to ensure the Corps assessed “cumulative effects” of the entire project. Id. at 413. Though these comments used variations of the phrase “cumulative impact,” the commenters were focusing on the cumulative impact on aquatic areas — not dry-land areas. As a result, this objection was waived. See Ariz. Pub. Serv. Co. v. E.P.A., 562 F.3d 1116, 1127 (10th Cir.2009) (holding that a party could not challenge the rationality of an agency rule because no party had specifically attacked the rule’s rationality during the comment period). 4. Summary Accordingly, we conclude that the environmental groups have waived their claims that the Corps violated NEPA by failing to consider oil-spill risks and cumulative impacts of pipelines. C. Verification Under the Nationwide Permit The environmental groups also argue the Corps should have prepared a NEPA analysis for the entire Gulf Coast Pipeline before issuing the verification letters. We disagree. The verifications do not constitute “major Federal action” warranting NEPA review, and the agency was not required to assess impacts of the entire pipeline. 1. Major Federal Action NEPA requires agencies to evaluate the impacts of all “major Federal actions.” 42 U.S.C. § 4332(2)(C) (2012); Ross v. Fed. Highway Admin., 162 F.3d 1046, 1051 (10th Cir.1998). For the sake of argument, we can assume that the verifications constitute “federal actions.” But issuance of a verification letter would create a “major Federal action” only if it resulted in significant impact, and the verification letters would not result in significant impact. The environmental groups contend that the verifications constitute “major Federal action” because they were essential for the pipeline’s completion. The premise of the contention is neither self-evident nor supported by authority. Without the ability to rely on Nationwide Permit 12 to discharge dredged and fill material, TransCanada might have been able to obtain an individual or regional permit or routed the pipeline to avoid many of the waterway crossings. Thus, TransCanada might have been able to complete the pipeline without the verifications. The environmental groups rely on two district court cases: Wyo. Outdoor Council v. U.S. Army Corps of Eng’rs, 351 F.Supp.2d 1232, 1242 (Dist.Wyo.2005), and Spiller v. Walker, No. A-98-CA-255-SS, 1998 U.S. Dist. LEXIS 18341, at *39-41 (W.D.Tex. Aug. 25, 1998). Reliance on these cases is misplaced. In Wyo. Outdoor Council, the court stated that the Corps is the “gatekeeper for approval” of projects and, as the gatekeeper, it should consider environmental impacts of those projects. Wyo. Outdoor Council, 351 F.Supp.2d at 1242. But the court was describing the Corps’ duty when it issues a regional permit, not when it issues verifications. In Spiller, the court stated in dicta that the Corps would commit “major Federal action” by granting an easement and dredge-and-fill permit for a proposed pipeline. Spiller, 1998 U.S. Dist. LEXIS 18341, at *43-44. But as the statement indicates, the Corps had not yet issued a permit. Thus, the district court’s statement had no effect on .the outcome. These decisions do not persuade us to expand the Corps’ NEPA obligations, for the Corps neither acted as a “gatekeeper” nor approved the pipeline; the Corps simply verified that TransCanada’s project was covered by Nationwide Permit 12. At that point, there was little reason for a new NEPA review because the Corps had already conducted a NEPA analysis when issuing Nationwide Permit 12. As long as the proposed activities were authorized by the nationwide permit, the Corps would have had little reason to conduct a second NEPA review when issuing the verification letters. A similar issue arose in Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155 (9th Cir.2012) (per curiam). There a utility planned to lower a dam to mitigate flooding problems. Snoqualmie Valley, 683 F.3d at 1157. Before carrying out this plan, the utility asked the Corps to verify that lowering of the dam would be covered by two existing nationwide permits. Id. at 1158. Downstream property owners objected, arguing that the Corps violated NEPA by allowing the utility to proceed under the nationwide permits. Id. at 1164. The Ninth Circuit Court of Appeals rejected the argument, explaining that the Corps must comply with NEPA when promulgating the nationwide permits — not when someone seeks to act under the permit. Id. at 1164. The court’s explanation is persuasive and equally applicable here. The Corps complied with NEPA when it issued Nationwide Permit 12 for the construction, maintenance, and repair of a wide variety of utility lines. Though the Corps did not issue an environmental impact statement, it did issue an environmental assessment and ultimately concluded that the environmental impact would be insignificant. When the Corps verified that TransCana-da could proceed under the nationwide permit, the Corps was simply saying that the permit applied; the Corps was not authorizing anything that it had not already authorized when issuing the permit. See Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 511 (10th Cir.1985) (stating that nationwide permits are “automatic in that if one qualifies, no application is needed before beginning the discharge activity”). The environmental groups argue that Snoqualmie is distinguishable in two ways: 1. There the court addressed a single location, and here the pipeline went through thousands of water crossings. 2. There another agency (FERC) conducted a NEPA analysis of the project (lowering of the dam), but here no one ever assessed the impact of the project (operation of an oil pipeline). Appellants’ Opening Br. at 39-40; Appellants’ Reply Br. at 16-17. These distinctions are invalid because they overlook similarities between the two cases and create distinctions that had nothing to do with the Snoqualmie court’s rationale. The environmental groups erroneously assume that the environmental assessment of the project was valid in Snoqualmie and was invalid here. In both cases, another agency issued an environmental impact statement for an earlier version of the project. In Snoqualmie, the other agency (FERC) evaluated the environmental impact of an earlier versión of the project (lowering of the dam). Snoqualmie Valley, 683 F.3d at 1158. In our case, another agency also issued an environmental impact statement for an earlier version of the project: construction of an oil pipeline that would have run further northward into Canada. In trying to distinguish the two cases, the environmental groups apparently assume that FERC’s environmental impact statement of the earlier project would have obviated the need for a new NEPA review and that the State Department’s environmental impact statement of the oil pipeline wouldn’t. But why? In both cases, the environmental impact statement addressed an earlier version of the project rather than the one ultimately subject to the Corps’ verifications. Perhaps for that reason, the court in Snoqualmie. did not rely in any way on FERC’s issuance of an environmental impact statement for the earlier project. The court merely mentioned the environmental impact statement in one sentence of the background facts. Id. The court explained that there was no need for a new NEPA analysis at the verification stage because of the limited purpose of a verification letter: At that point, the Corps’ only function is to verify that the project is covered by the nationwide permit. Id. at 1164. In light of that limited purpose for verification, the court concluded: “Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of verification.” Id. That is also true here. In issuing the verifications, the Corps simply confirmed that TransCanada’s activities would fall within the terms of Nationwide Permit 12. There would have been little reason for the Corps to conduct a new NEPA analysis at that point. Another NEPA analysis was unnecessary in Snoqualmie and was unnecessary here. 2. Scope of Analysis The environmental groups also argue the Corps should have evaluated the impacts of the entire pipeline project because the agency had “control and responsibility” over that project. In support, the environmental groups rely on the Corps’ NEPA implementation regulations, codified at 33 C.F.R. § 325, Appendix B. We disagree for two reasons: 1. Appendix B does not apply to the verification process. 2. Even if Appendix B applied, the environmental groups have not shown that the Corps would have had sufficient “control and responsibility” over the pipeline project. Appendix B does not apply to the verification process. In adopting Appendix B, the Corps indicated that Appendix B would not apply to nationwide permits (or verifications of permit coverage) when it issued the appendix. See Environmental Quality; Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed.Reg. 3120-01, 3126 (Feb. 3, 1988). We defer to the Corps’ interpretation unless it is plainly erroneous or inconsistent with Appendix B. Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698, 708 n. 3 (6th Cir.2014). We do not regard the Corps’ interpretation as plainly erroneous or inconsistent with the appendix. The appendix was apparently designed to guide Corps officials in evaluating permit applications for individual projects, not to evaluate whether a project qualified under an existing nationwide or regional permit. 3. The Corps’ Supposed Mistake The environmental groups arg-ue that the Corps issued the nationwide permit under the mistaken belief that another agency would prepare an environmental impact statement. Appellants’ Opening Br. at 40. This argument is based on a selective quotation from the Corps’ decision document addressing issuance of the nationwide permit. There the Corps noted that one commenter had asked if someone would need an individual permit for an activity covered by Nationwide Permit 12 “when a Corps district participates as a cooperating agency for an environmental impact statement.” Appellants’ App. at 517. Under federal regulations, an agency can serve as a “cooperating agency” only if another agency serves as the “lead agency.” 40 C.F.R. §§ 1501.6, 1508.5 (2012). Thus, the question assumed that another agency would serve as the lead agency and retain responsibility for issuing an environmental impact statement. The Corps answered the commenter’s question, noting that the lead agency would address non-aquatic environmental impacts when the Corps served as a cooperating agency. Appellants’ App. at 517. The Corps did not suggest that other agencies would address non-aquatic impacts whenever someone undertook an activity authorized by the nationwide permit. 4. Summary In issuing the verification letters, the Corps did not violate NEPA. The verifications were not “major Federal actions” that would require NEPA review, and the Corps had no obligation to assess the environmental impacts of the entire Gulf Coast Pipeline. III. Clean Water Act Section 404(e) of the Clean Water Act authorizes the Corps to issue nationwide permits when dredge-and-fill activities would result in minimal adverse environmental effects. 38 U.S.C. § 1344(e)(1) (2012). According to the environmental groups, Nationwide Permit 12 violates § 404(e) by • authorizing linear projects with substantial environmental impacts and • deferring part of the minimal-impacts determination to project-level personnel. We reject both arguments. The environmental groups have not shown that the permit authorizes linear projects with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis. A. Utilization of the Permit The environmental groups argue that the nationwide permit allows activities with more-than-minimal impacts. We disagree. The Corps has concluded that the environmental impacts would be minimal. See Appellants’ App. at 530, 535, 544, 553. This conclusion involved the agency’s technical expertise. See Utah Envtl. Congress v. Richmond, 483 F.3d 1127, 1140 (10th Cir.2007). The environmental groups question that conclusion. Because this conclusion is based on technical expertise, the environmental groups face a heavy burden. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). They must show that the Corps’ minimal-impact determination lacked any “substantial basis in fact.” Fed. Power Comm’n v. Fla. Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972). The environmental groups have not met this burden. They assert that TransCanada can use the permit limitless times for a single linear project. The Corps disagreed, concluding that it could assure minimal impact by applying the existing standard (loss 00 acre of U.S. waters) to each water crossing as long as it was “separate and distant.” Appellants’ App. at 508, 513-14. In arriving at this conclusion, the Corps explained that it had a long-standing practice of calculating the%-acre threshold “separately for each separate and distant crossing.” Id. at 513; see Regulatory Guidance Letter 88-06, at 1, 3 (June 27, 1988), http://www.usace.army.mi1/Portals/2/ docs/civilworks/RGLS/rgl88-06.pdf. Applying this standard, the Corps determined that the project would result in the loss of only 0.63 acres of wetlands. Appellants’ App. at 647, 2506. Thus, the Corps effectively found that the total loss in wetlands, over more than 2,000 water crossings, was only slightly larger than the loss permitted for each separate and distant crossing. And even for these losses, TransCanada had to buy credits from a wetlands mitigation bank. Id. at 647-48. The environmental groups challenge the use of this test (whether the crossings are “separate and distant”). But the environmental groups have not shown that the Corps failed to adequately control aquatic impact by allowing multiple uses of the)é-acre test for “separate and distant” crossings. The Corps’ use of the “separate and distant” test was not arbitrary or capricious. See Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269-73 (10th Cir.2004) (holding that the Corps’ granting of a § 404 permit was not arbitrary or capricious even though the project would eliminate 1.45 acres of wetlands). B. Partial Deferral of Analysis As discussed, a § 404 permit allows the Corps to authorize an activity only if the environmental impact would be minimal. See 33 U.S.C. § 1344(e) (2012). In deciding to issue Nationwide Permit 12, the Corps analyzed the environmental impacts of dredge-and-fill activity related to utility-line construction. Appellants’ App. at 528-35. But in conducting this analysis, the Corps noted that its analysis had to entail some level of speculation about future operations. Id. at 528. Thus, the Corps added safeguards involving the use of project-level personnel, requiring them to ensure that particular activities would not have more than a minimal impact on the aquatic environment. Id. The environmental groups argue the Corps violated § 404(e) by partially deferring the minimal-impact determination. We disagree. The Corps permissibly interpreted § 404(e) to allow establishment of additional safeguards through the use of project-level personnel. 1. Standard of Review (Chevron ) The environmental groups have questioned the Corps’ interpretation of the Clean Water Act. We review this contention under the two-part test stated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, we first ask whether Congress has directly spoken on the issue. Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. If Congress has not directly spoken, we ask whether the Corps’ interpretation of the Clean Water Act is permissible. See id. If the Corps’ interpretation is permissible, we must defer to that interpretation. Id. at 844, 104 S.Ct. 2778. 2. Step One of Chevron: Ambiguity of § 404(e) We first ask: Has Congress directly spoken on whether the Corps can assign project-level personnel the task of ensuring minimal impact on the environment? On this issue, Congress has not directly spoken. Under § 404(e), the Corps must ensure that the authorized activities have only minimal environmental impact. See 33 U.S.C. § 1344(e) (2012). But § 404(e) does not specify how or when the Corps must make its minimal-impact determination. By omitting these aspects of the determination, Congress presumably authorized the Corps to fill in the gaps. See City of Arlington v. F.C.C., — U.S. —, 133 S.Ct. 1863, 1868, — L.Ed.2d — (2013) (“Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”); see also Catawba Cnty., N.C. v. E.P.A., 571 F.3d 20, 35 (D.C.Cir.2009) (explaining that ambiguity in the statutory text “suggest[s] a congressional intent to leave unanswered questions to an agency’s discretion and expertise”). Thus, § 404(e) does not clarify whether the Corps can defer part of its minimal-impact analysis. 3. Step Two of Chevron: Permissibility of Interpretation Because Congress has not directly spoken on this issue, we ask: Has the Corps permissibly interpreted § 404(e) to allow partial deferral of the minimal-impact determination? The Corps’ interpretation is permissible based on the text of § 404(e) and the difficulty of predicting the impact of activities allowed under nationwide permits. a. Text of § 404(e) We first consider the language in § 404(e). See United States v. Hubenka, 438 F.3d 1026, 1032-33 (10th Cir.2006) (analyzing an interpretation of the Clean Water Act to determine whether the Corps’ interpretation of Act was permissible). This language reflects an acknowledgment that the Corps might need to police the use of a permit to ensure that the environmental impact is minimal, for § 404(e)(2) recognizes the possibility that authorized activities could result in more-than-minimal impacts. For example, this section authorizes revocation or modification of a nationwide permit if the Corps “determines that the activities authorized by [the permit] have an adverse impact on the environment.” 33 U.S.C. § 1344(e)(2) (2012). The Corps could reasonably conclude that project-specific review by district engineers would facilitate the decision whether to revoke or modify a nationwide permit. b. Difficulty of Fully Predicting the Impact The Corps could have recognized the difficulty of predicting impacts from all future activities falling within Nationwide Permit 12. Thus, the Corps’ interpretation of § 404(e) supplies a reasonable way of safeguarding the environment from unforeseen impacts. In similar circumstances, the Fourth Circuit Court of Appeals upheld the use of project-level personnel in Ohio Valley Envtl. Coal. v. Bulen: [I]t is impossible for the Corps’ ex ante determinations of minimal impact to be anything more than reasoned predictions. Even under the paradigmatic general permit envisioned by the district court, where the parameters of the authorized activities are delineated in objective, measurable terms, the Corps’ minimal-impact determinations would necessarily be a forecast, only. This is so because the environmental impact of the activities authorized by a general permit depends on factors that, as a practical matter, are outside the Corps’ ability to predict with certainty ex ante. This uncertainty is especially acute when the Corps issues a nationwide permit like [Nationwide Permit] 21 because the Corps must attempt to forecast the environmental effects the authorized activities could have if undertaken anywhere in the country under any set of circumstances. 429 F.3d 493, 501 (4th Cir.2005). Though we are not bound by Bulen, we regard it as persuasive. Nationwide Permit 12, like all nationwide permits, governs a broad range of activities that can be undertaken anywhere in the country under a wide variety of circumstances. For example, Nationwide Permit 12 addresses the construction, maintenance, repair, and removal of all utility lines throughout the nation. .Appellants’ App. at 508. In considering how to address this range of activities, the Corps noted that utility lines are used in a variety of ways, carrying resources (like water, fuel, and electricity), facilitating communication (like telephone lines, internet connections, and cable television), and removing waste. Id. at 527. The Corps ultimately adopted a set of conditions reflecting the foreseeable effects of activities authorized by the nationwide permit. Id. at 528. But the Corps recognized that this assessment was inherently speculative: The issuance of [a nationwide permit] is based on a general assessment of the effects on public interest and environmental factors that are likely to occur as a result of using this [nationwide permit] to authorize activities in waters of the United States. As such, this assessment must be speculative or predictive in general terms. Since [nationwide permits] authorize activities across the nation, projects eligible for [nationwide permit] authorization may be constructed in a wide variety of environmental settings. Therefore, it is difficult to predict all of the indirect impacts that' may be associated with each activity authorized by [a nationwide permit]. Id. The environmental groups argue that Bulen is distinguishable because there (1) another agency (the Department of Interi- or) would evaluate the activity to be regulated (operation of coal mines), and (2) the Corps undertook a comprehensive analysis of the impacts from the authorized activities. These distinctions are misguided. The first distinction is based on a single sentence in Bulen. In this sentence, the Fourth Circuit Court of Appeals summarized the nationwide permit, pointing out that it had authorized discharges of dredged or fill material associated with surface coal mining and reclamation operations “so long as those operations [we]re authorized by the Department of Interior” or satisfied the requirements for programs under the Surface Mining Control and Reclamation Act of 1977. Bulen, 429 F.3d at 498. The court did not refer again to the Department of Interior’s regulation or give any indication that these regulations affected the holding or rationale. See id. passim. The Fourth Circuit Court of Appeals also noted that the Corps had assessed the environmental impacts from a broad range of activities. Id. at 499. But the court noted that the Corps’ assessment was inherently speculative because of the variety of ways that coal miners might invoke Nationwide Permit 21. Id. at 501. The same is true of Nationwide Permit 12. When considering whether to issue this permit, the Corps analyzed the environmental impacts of activities involving utility lines. But the Corps pointed out that its task was complicated by the variety of ways that companies might undertake to construct, maintain, repair, and remove utility lines. Appellants’ App. at 527-28. The environmental groups complain that in doing so, the Corps failed to evaluate the environmental impacts from oil pipeline projects like this one. How could the Corps have done that? After all, the Corps had issued Nationwide Permit 12 before TransCanada proposed this pipeline. See Appellants’ Reply Br. at 13 (arguing, in a different context, that TransCa-nada decided to divide the Keystone XL Pipeline into two parts only after the comment period had closed for Nationwide Permit 12). In fact, the environmental groups argue “that [Nationwide Permit 12] was not meant for these major oil pipelines.” Id. If no one contemplated that Nationwide Permit 12 would cover major oil pipelines, why would the Corps have considered the environmental impacts from a major oil pipeline? And if the Corps did consider these impacts, how would it have assessed the environmental impact from this particular pipeline? The problem, as the Bulen court explained, is that nationwide permits are inherently broad and could cover a variety of activities. Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 501 (4th Cir.2005). The agency might predict some of these activities, but not others. Thus, the Corps predicted how companies might use the nationwide permit and assessed the environmental impacts from those uses.. Appellants’ App. at 528. In Bulen, however, the court recognized that this assessment had to entail some. level of speculation. Bulen, 429 F.3d at 501. The same is true here. The Corps made an environmental assessment of the predictable uses of Permit 12, but recognized the futility of predicting every conceivable use for every conceivable type of utility line anywhere in the United States. The Corps need not conduct a new NEPA analysis every time someone conceives a new use for a national permit. c. Arguments Against the Corps’ Interpretation The environmental groups argue that partial deferral is not permissible under § 404(e) for two reasons: 1. The Corps must finalize minimal-impact determinations before issuing nationwide permits because the permits are final agency actions. 2. Partial deferral would restrict the public’s ability to meaningfully comment on proposed permits. We reject both arguments. Finality is not relevant here, and partial deferral would not restrict the public’s ability to comment. First, finality of the nationwide permit does not bear on whether the Corps could enhance its environmental protection by assigning additional oversight responsibilities to project-level personnel. Finality bears only on whether the permit is reviewable under the Administrative Procedure Act, and no one has questioned jurisdiction. See McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1253 (10th Cir.2010) (“Pursuant to the APA, we have jurisdiction to review only ‘final agency actions.’ ”). Second, partial deferral would not restrict the public’s ability to comment on proposed permits. See 33 C.F.R. 325.3 (2012) (stating that the Corps must provide the public with “sufficient information to give a clear understanding of the nature and magnitude of [proposed] activities] to generate meaningful comment”). For every proposed permit, the Corps must prepare a written evaluation of all potential impacts of authorized activities. 33 C.F.R. § 230.7 (2012). The Corps has deferred only those aspects of the evaluation that cannot practically be undertaken before a project is underway. Thus, the impact on opportunities for public comment would not preclude the Corps from interpreting § 404(e) in a way that would allow oversight by project-level personnel. d. Summary For these reasons, we conclude that the Corps has permissibly interpreted § 404(e) to allow use of project-level personnel to evaluate environmental impacts. The Corps’ interpretation is consistent with the text and practicalities of § 404(e). IV. Nationwide Permit 12 Finally, the environmental groups argue that the Corps violated the terms of its own permit by failing to document analysis of cumulative impacts in the verification letters or administrative record. We disagree. Though district engineers must analyze cumulative impacts, the engineers need not include a written analysis of cumulative impacts within the verification letters. Though this analysis is absent in the letters, it appears in the record. Thus, we conclude that the Corps’ issuance of the verification letters was not arbitrary or capricious. A. Verification Letters The environmental groups argue that the agency issued the letters in violation of the nationwide permit by not including a cumulative-impacts analysis. We disagree. The Corps has directed district engineers to analyze the cumulative impacts of proposed projects when reviewing pre-con-struction notifications. See Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,186 (Feb. 21, 2012). But, the Corps has not required district engineers to include a written cumulative-impacts analysis in the verification letters. Thus, district engineers could have verified compliance without stating how they had analyzed the cumulative impacts. See Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155, 1163 (9th Cir.2012) (per curiam) (concluding that verification letters need not go beyond the base findings if the verification letters are supported by the record). B. Record of the Analysis The environmental groups also argue that the record does not show cumulative-impact analyses by the district engineers. We disagree, for the record shows that district engineers analyzed the cumulative impacts of the proposed crossings. We will uphold the verifications as long as we can discern that the agency adequately considered cumulative impacts. See Licon v. Ledezma, 638 F.3d 1303, 1308 (10th Cir.2011) (‘We will ‘uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned.’ ” (quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007))). We can reasonably discern that district engineers considered cumulative impacts of the proposed crossings. For instance, the record shows three facts: 1.District engineers prepared verification memoranda that describe the Corps’ analysis of pipeline impacts, impose special conditions to ensure minimal impacts, and conclude that the pipeline (with proposed mitigation) would “result in no more than minimal individual and cumulative adverse environmental effects....” 2. The verification letters state that district engineers analyzed “[a]ll proposed crossings” of the pipeline “relative to the definition of single and complete project for linear projects.” 3. Corps officials from separate districts communicated about the pipeline’s verification to ensure that officials had necessary information and had fully considered the pipeline’s collective impact. Based on the combination of these three facts, we can reasonably discern that the agency analyzed the cumulative impacts of the proposed crossings. Accordingly, the Corps’ issuance of the verification letters was not arbitrary or capricious. V. Conclusion In conclusion, we affirm the entry of judgment for the defendants. In Nationwide Permit 12, the Corps did not violate NEPA or the Clean Water Act, and the agency did not issue the verification letters in violation of NEPA or the nationwide permit. . The Corps has defined the term "single and complete project” to mean "the total project proposed or accomplished by one owner/de-vfeloper or partnership or other association of owners/developers.” 33 C.F.R. § 330.2(i) (2012). For linear projects like utility lines, the Corps considers each crossing of a waterway to be a "single and complete project” as long as these crossings are "separate and distant." Id. . The Gulf Coast Pipeline is the southern segment of a larger pipeline project called the "Keystone XL Pipeline.” . The intervenors have raised prudential mootness. Prudential mootness concerns a court’s discretion, not its power, to grant relief. S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997). We elect not to address prudential mootness, as we conclude the claims fail on other grounds. See Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1167 (10th Cir.2012) (“As for prudential mootness, it is within the court’s discretion to decline to address an issue on prudential mootness grounds.”). . Instead, the agency is to make a "finding of no significant impact.” Pub. Citizen, 541 U.S. at 757-58, 124 S.Ct. 2204. . The environmental groups also state that until this project, installation of all major oil pipelines had undergone a project-level NEPA review. Based on this statement, the environmental groups say that they (1) did not perceive a need to make comments when the Corps considered the nationwide permit, and (2) should not be penalized for raising the issue in connection with the Keystone XL Pipeline proceedings rather than as an objection to Nationwide Permit 12. For the sake of argument, we can assume the environmental groups are correct. They appear to imply that they should not be subjected to the ordinary rules of exhaustion, requiring comment to the Corps as it was considering whether to issue the nationwide permit. But the environmental groups have not provided authority or analysis that would justify an exception to the ordinary rules of exhaustion based on the alleged change in practice. . The environmental groups argue that some other courts require the Corps to consider the risk of oil spills. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir.2005); Sierra Club v. Sigler, 695 F.2d 957, 962 (5th Cir.1983). This argument relates to the merits rather than exhaustion. Because the oil-spill claim is unexhausted, we do not reach the merits. . In her thoughtful concurrence, Judge McHugh concludes that it would have been obvious to the Corps that its analysis of cumulative effects was too restrictive. In our view, however, the environmental groups did not invoke the obviousness exception on the NEPA claims involving cumulative effects. See Appellants’ Opening Br. at 33-34; Appellants’ Reply Br. at 14-16. Instead,'we believe the obviousness exception was raised solely on the NEPA claims involving oil spills., See Appellants’ Opening Br. at 25-26; Appellants’ Reply Br. at 11, 14. . See 40 C.F.R. § 1508.18 (2012). . See 33 C.F.R. § 330.1(d) (2012) (stating that Corps officials may instruct permittees whose projects do not qualify for nationwide permits to "apply for a regional general permit or an individual permit”). .Regional permits are authorized under the same section of the Clean Water Act as nationwide permits. See 33 U.S.C. § 1344(e) (2012). But regional permits authorize activities in specific regions instead of the entire country. 33 C.F.R. § 330.2(b) (2012). . In Snoqualmie, the Corps also conducted a separate environmental assessment of an earlier version of the project. Snoqualmie Valley, 683 F.3d at 1158. . During the comment period for Appendix B, commenters suggested that the Corps categorically exclude verifications from NEPA documentation. See Environmental Quality; Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed.Reg. 3120, 3126 (Feb. 3, 1988) ("Several suggested regional and nationwide general permits should be added to the list.”). The Corps responded that the exclusion was not necessary: The regional and nationwide general permits are permits for certain types of activities for which there has already been a NEPA review and NEPA documents have already been prepared on a generic basis. Therefore, it is not necessary to add them to the list of actions categorically excluded from NEPA documentation. Id. Thus, the agency chose not to categorically exclude verifications from the NEPA process. See 33 C.F.R. § 325, Appendix B(6) (2012). . See, e.g., 33 C.F.R. § 325, Appendix B(7)(a) (2012) (explaining how a district engineer should evaluate an "applicant’s proposal” when preparing a NEPA document); id., Appendix B(7)(b) (explaining how district engineers should define the scope of a NEPA document when a "permit applicant” proposes to conduct "a specific activity requiring a Department of the Army ... permit”). . Chevron deference is appropriate because the Corps administers § 404(e) of the Clean Water Act. 33 U.S.C. § 1344(e) (2012); City of Arlington v. F.C.C., — U.S. —, 133 S.Ct. 1863, 1868, — L.Ed.2d — (2013). . The environmental groups argue that partial deferral violates the “unambiguously expressed intent of Congress” for two reasons: 1. Nationwide permits are final actions that "mark[ ] the completion of the decision-making process”; thus, the Corps must finalize the minimal-impact determination before issuing such permits. 2. Partial deferral would deny the public the opportunity to meaningfully comment on proposed nationwide permits. Appellants' Opening Br. at 44-45. But these arguments do not address whether Congress has directly spoken on the issue, which is our only concern at step one of Chevron. See United States v. Hubenka, 438 F.3d 1026, 1031 (10th Cir.2006); see also Aragon-Salazar v. Holder, 769 F.3d 699, 706 (9th Cir.2014) ("Using extrinsic policy considerations to determine whether there is statutory ambiguity is plainly contrary to Supreme Court precedent on both Chevron step one and statutory interpretation more generally.”). Thus, we reject these arguments as to step one and will instead address them at step two. See pp. 1059-60, below. . If the Corps had relied on additional regulations by the Department of Interior, the same would have been true here. The Federal Energy Regulatory Commission oversees regulatory regimes for oil pipelines and the Department of Transportation's Pipeline and Hazardous Materials Safety Administration regulates pipeline safety. James J. Monast, Brooks R. Pearson & Lincoln F. Pratson, A Cooperative Federalism Framework for LCS Regulation, 7 Envtl. & Energy L. & Pol'Y J. 1, 23-24 (2012). . The environmental groups also state in their heading that the verification letters violated the Clean Water Act. See Appellants’ Opening Br. at 48. But the environmental groups have not developed this argument beyond the heading. Because this argument has not been developed, it is waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir.2005) (“Issues will be deemed waived if they are not adequately briefed.” (citing Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir.2002))). .The environmental groups suggest that the memoranda are deficient because they rely on an outdated standard ("Condition 27(e)") after it had been replaced. But the district court held that the environmental groups had waived this argument by failing to raise it until the reply brief on summaiy judgment. We conclude that the district court acted within its discretion in applying the local rule. See Bylin v. Billings, 568 F.3d 1224, 1230 n. 7 (10th Cir.2009) (stating that we owe considerable deference to a district court’s interpretation and application of its own local rules). Thus, we will not address this argument orí appeal. . Appellants’ App. at 1728, 1741, 1770. . E.g., Appellants’ App. at 1760 ("Scope of Analysis”). . Appellants’ App. at 2190-2210.

Sierra Club, Inc. v. Bostick

BALDOCK, Senior Circuit Judge, concurring. With the exception of Footnote 4, I join the Court’s clear and concise opinion. I write separately because I believe we should have found this case to be prudentially moot. “A ease, is prudentially moot if circumstances have changed since the beginning of litigation that forestall any occasion for meaningful relief.” Citizen Ctr. v. Gessler, 770 F.3d 900, 909 (10th Cir.2014) (citation and internal marks omitted). Or, “a court may dismiss the case under the prudential-mootness doctrine if the case is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010) (citation and internal marks omitted). Utilizing its discretion, the Court “elect[s] not to address prudential mootness.” Ante, at 1047 n.4. Counseling strongly against this maneuver is Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir.2012). In Hillsdale, as here, environmental groups challenged a Corps-issued permit under the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), and prudential concerns were raised. We were not persuaded by those concerns in Hillsdale, but our reasoning there points directly to the present affair. Specifically, in Hillsdale we had “no trouble” rejecting NEPA mootness concerns because the facility in question was “not yet complete.” Id. at 1167. Here, the pipeline has been complete and operational for years. Moreover, in Hillsdale we said CWA mootness was a much “closer question” where “[njearly all of the jurisdictional waters ... have been filled, and nearly all of the associated mitigation is now complete.” Id. Here, all the waters have been filled or rerouted and nearly all associated mitigation is complete. Given Hillsdale’s language, I have a difficult time imagining a scenario more appropriate for prudential mootness than the present. Having said this, I acknowledge that prudential mootness is a matter of discretion and that reasonable minds can certainly differ on what is prudent here. As such, I readily join the Court in resolving this matter on other grounds.

Sierra Club, Inc. v. Bostick

McHUGH, Circuit Judge, concurring: I agree with the majority’s resolution of this case and I join most of its thoughtful analysis. But I write separately to discuss the Corps’ compliance with its obligations under NEPA because my view of this issue differs from that of the majority. The Corps argues it fully complied with its obligations under NEPA when it reissued Nationwide Permit 12 (NWP 12) because it “thoroughly considered the individual and cumulative impacts of activities within its jurisdiction: discharges of dredged and fill material into waters of the United States under the terms of NWP 12.” As support for that position, the Corps argues its “determination to focus primarily on the environmental impacts of discharges of dredged and fill material associated with the category of utility lines, without delving into the particulars of how those utility lines would operate, was reasonable and fully consistent with [§ 404(e) of the CWA].” Thus, the Corps attempts to limit the scope of its NEPA analysis when reissuing NWP 12 to the consideration of only those environmental impacts occurring within jurisdictional waters as a result of the discharge of dredged and fill material. By doing so, the Corps conflates its obligations under NEPA with its obligations under § 404(e) of the CWA. But nothing in the text of NEPA allows the Corps to limit its analysis in such a manner. When the Corps’ issuance of a permit under § 404(e) of the CWA constitutes a major federal action, as is the case with the issuance or reissuance of a nationwide permit, it must comply with the requirements of both the CWA and NEPA. The CWA permits the Corps to issue a nationwide permit if it “determines that the activities [authorized by the permit] are similar in nature, will only cause minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). When the Corps issues such permits, it must do so in accordance with guidelines issued by the EPA. Id.; see also id. § 1344(b)(1); 40 C.F.R. § 230. These CWA guidelines make clear that the Corps’ cumulative effects analysis under § 404(e) of the CWA is limited to an analysis of “the changes in an aquatic ecosystem that are attributable to the collective effect of a number of individual discharges of dredged or fill material.” 40 C.F.R. § 230.11(g)(1). Thus, the Corps’ environmental analysis under the CWA may be properly limited to the aquatic impacts associated 'with the discharge of dredge and fill material. In contrast, NEPA requires a significantly broader scope of analysis. The Council on Environmental Quality (CEQ) is tasked with interpreting NEPA and establishing regulations governing agencies’ responsibilities under the statute. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). CEQ regulations require federal agencies to consider all of the reasonably foreseeable direct, indirect, and cumulative effects of an agency’s action. 40 C.F.R. §§ 1508.7, 1508.8. Direct effects “are caused by the action and occur at the same time and place.” Id. § 1508.8(a). Indirect effects “are caused by the action and are later in time or farther removed in distance; but are still reasonably foreseeable.” Id. § 1508.8(b). Cumulative effects are “impaet[s] on the environment which result[] 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.” Id. § 1508.7 (emphasis added). Thus, NEPA requires agencies to consider all of the reasonably foreseeable environmental effects caused by their major federal actions. Courts have consistently held that the Corps’ NEPA obligations when issuing a § 404 dredge and fill permit — which constitutes a major federal action — extend beyond consideration of the effects of the discharge of dredged or fill material in jurisdictional waters. Indeed, courts routinely require the Corps to consider the direct, indirect, and cumulative effects— including nonaquatic effects — of the installations the Corps’ dredge and fill permits authorize. For example, in Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, we considered the validity of the Corps’ NEPA analysis when issuing a § 404 dredge and fill permit for the construction of an intermodal rail/truck terminal. 702 F.3d 1156, 1162-63 (10th Cir.2012). In its NEPA analysis, the Corps “considered both [the] direct and reasonably foreseeable indirect impacts to land use, air quality, noise, traffic, water quality, threatened and endangered species, and cultural resources” from the operation of the intermodal terminal. Id. at 1164. Far from limiting its analysis to the impact of dredged and fill material on jurisdictional waters, the Corps conducted a broad environmental assessment. And we upheld the Corps’ NEPA analysis because it had properly considered all of the environmental impacts of the intermodal terminal, not only the aquatic impacts associated with the discharge of dredged and fill material. Id. at 1172-77. As such, we have recognized that a NEPA environmental assessment requires the Corps to look beyond the effects occurring directly within its jurisdictional waters. See Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1190-91 (10th Cir.2002) (recognizing that the CWA defines “cumulative impacts” more narrowly than does NEPA). Other courts similarly require the Corps to look beyond the effects of the discharge of dredged and fill material. The Ninth Circuit’s analysis in Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir.2005), is particularly instructive. In that case, the Corps issued a § 404 dredge and fill permit to a developer building a gated community near Phoenix. Id. at 1118-19. The development required Corps approval because several desert washes — which filled with water during the rainy season— intersected the proposed development site. Id. at 1118. The Corps prepared an environmental assessment and found the development would have no significant impact. Id. “In reaching this conclusion, the Corps examined only the washes rather than the entire project.” Id. On appeal, the Ninth Circuit considered whether “the Corps had improperly' constrained its NEPA analysis to the washes, rather than considering the development’s effect on the environment as a whole.” Id. at 1121. The court stated: Although the Corps’ permitting authority is limited to those aspects of a development that directly affect jurisdictional waters, it has responsibility under NEPA to analyze all of the environmental consequences of a project. Put another way, while it is the development’s impact on jurisdictional waters that determines the scope of the Corps’ permitting authority, it is the impact of the permit on the environment at large that determines the Corps’ NEPA responsibility. The Corps’ responsibility under NEPA to' consider the environmental consequences of a permit extends even to environmental effects with no impact on jurisdictional waters at all. Id. at 1122 (emphasis added). Thus, the Ninth Circuit held the Corps had improperly limited the scope of its NEPA analysis to the considerations relevant to issuing a permit under the CWA. Id. at 1123. My understanding of the scope of the Corps’ responsibility under NEPA parallels that of the Ninth Circuit. The Corps may not limit its NEPA analysis to the consideration of the environmental effects of the discharge of dredged and fill material into jurisdictional waters, as would be appropriate under § 404(e) of the CWA. Rather, for NEPA purposes, the Corps is required to consider the direct, indirect, and cumulative effects reasonably foreseeable as a result of its permitting decision. This includes the environmental effects caused by the operation of the installations authorized by the Corps’ permitting decision. And this understanding of the Corps’ NEPA responsibilities has been universally adopted. See, e.g., O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 232-34 (5th Cir.2007) (holding Corps’ environmental assessment of proposed subdivision insufficient when it failed to properly evaluate adverse effects on area’s flood capacity due to increased pavement, increases in non-point source pollution from increased run-off, loss of habitat for non-aquatic wildlife, and adverse effects associated with increased vehicle traffic); Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir.2005) (holding Corps had NEPA obligation to consider effects of increased oil tanker traffic and increased risk of oil spills when issuing § 404 permit for construction of oil refinery dock); Sierra Club v. Marsh, 769 F.2d 868, 877-78 (1st Cir.1985) (holding Corps’ environmental assessment insufficient for failure to consider future industrial development when issuing § 404 permit for construction of a port and causeway). See also Pres. Soc. of Charleston v. U.S. Army Corps of Eng’rs, No. 2:12-2942-RMG, 2013 WL 6488282, at *12 (D.S.C. Sept. 18, 2013) (rejecting Corps’ attempt “to justify what amounted to essentially a non-review of the proposed passenger terminal on the basis that its jurisdiction is limited to the portion of the project physically touching the navigable waters of the United States”); Wyo. Outdoor Council v. U.S. Army Corps of Eng’rs, 351 F.Supp.2d 1232, 1237, 1242 (D.Wyo.2005) (rejecting Corps’ argument that it was not obligated to consider cumulative impacts on non-wetland areas of regional permit authorizing dredge and fill associated with coalbed methane gas production); Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F.Supp.2d 30, 37-41 (D.D.C.2000) (holding Corps was required to consider adverse effects associated with increased sewage, increased wastewater runoff, creation of large shaded areas on the aquatic habitat, creation of a “sump” that would trap aquatic wildlife, increased draw on area aquifers, and increased upland development when issuing § 404 permit for dredge and fill associated with construction of floating casino barges); Hoosier Envtl. Council, Inc. v. U.S. Army Corps of Eng’rs, 105 F.Supp.2d 953, 972-75 (S.D.Ind.2000) (upholding Corps’ environmental assessment when it properly considered the indirect effects of § 404 permit for construction of riverboat gambling facility, including construction of a hotel, pavilion, golf course, and parking facilities). Thus, when reissuing NWP 12, the Corps was required to consider all of the environmental effects reasonably foreseeable as a result of its permitting decision. Moreover, I am convinced the failure to consider any environmental impacts beyond those associated with the discharge of dredged and fill material would have been, and in fact was, obvious to the Corps during the reissuance process so that no party was required to bring the defect to the Corps’ attention. See Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 765, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (noting the flaws in an agency’s environmental assessment “might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action”). In its response to comments in the final notice on the reissuance of NWP 12, the Corps specifically acknowledged that “NEPA requires consideration of all environmental impacts, not only those to aquatic resources, so there may well be situations where aquatic impacts are minimal even though environmental impacts more generally are not.” Reissuanee of Nationwide Permits, 77 Fed.Reg. 10,184, 10,197 (Feb. 21, 2012). Given this explicit acknowledgement, the Corps cannot now take the contrary position that it satisfied its NEPA obligations when it focused exclusively on the aquatic impacts associated with the discharge of dredged and fill material. Accordingly, I would hold that the Corps’ NEPA analysis on the reissuance of NWP 12 was obviously flawed. But the Corps attempted to address this deficiency by deferring portions of the required NEPA analysis to whatever agency took the lead for a given utility line project or to the district engineer at the verification stage. Id. (“These other environmental impacts would be addressed by the lead agency preparing the environmental impact statement. The district engineer will exercise discretionary authority to require an individual permit for any utility line activity that he or she determines does not meet the terms and conditions of NWP 12.”). For example, the environmental assessment for NWP 12 states: Division and district engineers will conduct more detailed assessments for geographic areas that are determined to be potentially subject to more than minimal cumulative adverse effects. Division and district engineers have the authority to require individual permits in watersheds or other geographic areas where the cumulative adverse effects are determined to be more than minimal, or add conditions to the NWP either on a case-by-case or regional basis to require mitigation measures to ensure that the cumulative adverse effects are minimal. U.S. Army Corps of Eng’rs, Decision Document Nationwide Permit 12 at 27 (2012) [hereinafter Decision Document]. The assessment also provides that the “pre-construction notification requirement allows district engineers to review proposed activities on a case-by-case basis to ensure that the individual and cumulative adverse effects of those activities on the aquatic environment are minimal.” Id. at 22. Thus, the Corps’ own environmental assessment undermines the argument it makes before us now — that it fully complied with its NEPA obligations at the time it reissued NWP 12. To be sure, accounting in advance for the broad range of possible impacts resulting from the wide variety of utility lines authorized under NWP 12 is a daunting task. But compliance with NEPA is not excused simply because compliance is difficult. And the problem was exacerbated by the Corps’ decision to draft a nationwide permit that defines utility lines expansively. Reissuance of Nationwide Permits, 77 Fed.Reg. at 10,271-72 (“A ‘utility line’ is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication.”). The Corps could have decreased the difficulty of its NEPA analysis by crafting a narrower set of permits, focusing on particular types of utility line projects. By issuing narrower permits focusing on particular industrial processes, the Corps could better assess all of the environmental impacts of the processes themselves, as required by NEPA. Accordingly, I would hold the Corps impermissi-bly restricted the scope of its NEPA analysis when it considered only the effects of the discharge of dredged and fill material when reissuing NWP 12. Nevertheless, I remain unconvinced that the Corps can permissibly defer any portion of its NEPA analysis to the verification stage. First, NEPA requires agencies to complete their environmental analysis at the point of agency action — in this case, the reissuance of NWP 12. See Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir.2008) (noting that NEPA requires agencies to “take a hard look at the environmental consequences before taking a major action” (emphasis added) (internal quotation marks omitted)); see also Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 409 (6th Cir.2013) (rejecting as “non-responsive” the Corps’ argument that district engineers would assess required NEPA elements in greater detail at the verification stage). It is impossible for an agency to have taken the “hard look” required by NEPA — and thereby have made a fully informed decision to undertake an action — if it knowingly defers portions of its analysis to a later date. Second, in the context of nationwide permits, it may well be that, as happened here, there is no lead agency that will conduct an environmental assessment. And the NWP 12 environmental assessment expressly contemplates that “[i]ndi-vidual review of each activity authorized by an NWP will not normally be performed, except when pre-construction notification to the Corps is required or when an applicant requests verification that an activity complies “with an NWP.” Decision Document at 4. That is, unless an individual utility line project requires a pre-con-struction notification, parties are authorized to use NWP 12 without ever notifying the Corps. Thus, in the context of nationwide permits, it is often the case that no further environmental analysis is ever contemplated. As such, I would conclude the Corps was not permitted to defer any portion of its NEPA analysis to the verification stage. Rather, the agency was required to fully evaluate all of the required NEPA factors before reissuing NWP 12. That did not happen here. Nevertheless, I would affirm the district court because I conclude that Sierra Club’s argument that the Corps improperly deferred portions of its NEPA. analysis to the verification stage was not made to the agency during the reissuance process and is therefore waived. Sierra Club has pointed to no part of the record in which any commenter objected to the Corps’ decision to defer parts of its NEPA analysis to the district engineers or prospective lead agency. And although I would conclude that the Corps’ failure to consider the full environmental consequences of NWP 12 was an obvious deficiency in its environmental assessment, I cannot conclude that it would have been so obvious to the Corps that it could not defer portions of its analysis to the verification stage that commenters were not required to first raise the concern during the reissuance process. See Public Citizen, 541 U.S. at 765, 124 S.Ct. 2204. The Corps has been issuing and reissuing NWP 12 for decades, with no party qbjecting to the deferral practice. For these reasons, I concur. . Although most of these decisions involve the issuance of individual permits, they address the scope of the Corps’ NEPA review, which is triggered by any permitting decision that qualifies as a major federal action. The issu-anee or reissuance of a nationwide permit is a major federal action that must comply independently with NEPA. See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1276 (11th Cir.2015). . The Decision Document is available on the Corps’ website at http://www.usace.army.mil/ Portals/2/docs/civilworks/nwp/2012/NWP_12_ 2012.pdf. . To my mind, the Corps' attempt at deferring portions of its cumulative effects analysis serves as a tacit admission that it did not conduct a full NEPA analysis at the time of reissuance. .The Corps has issued industry-specific NWPs in other cases. See, e.g., Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,274 (Feb. 21, 2012) (Nationwide Permit 21, Surface Coal Mining Activities); id. at 10,278 (Nationwide Permit 34, Cranberry Production Activities); id. at 10,281 (Nationwide Permit 49, Coal Remining Activities). . CEQ regulations do allow partial deferral of NEPA analyses in certain prescribed circumstances. See Council on Envtl. Quality, Final Guidance for Effective Use of Programmatic NEPA Reviews (2014), available at https:// www.whitehouse.gov/sites/defaull/files/docs/ effective_use_ofLprogrammatic_nepa_ reviews_final_dec2014_searchable.pdf. But the CEQ's final guidance on programmatic NEPA reviews expressly states that such deferral is only appropriate when the initial NEPA review is subsequently supported by further review on a regional, local, or project specific basis. Id. at 26-29. Because I agree with the majority that the Corps is not required to conduct further NEPA analysis at the verification stage, the type of deferral contemplated by the CEQ’s guidance on programmatic NEPA reviews is unworkable in the nationwide permit context.

Kentuckians for the Commonwealth v. United States Army Corps of Engineers

OPINION ROGERS, Circuit Judge. More than six years after the Commonwealth of Kentucky authorized a surface mining operation in Perry County, this appeal raises the issue of the proper scope of environmental analysis a federal agency must use in issuing a permit related to a small but necessary part of the operation. The Surface Mining Control and Reclamation Act grants Kentucky “exclusive jurisdiction” over the regulation of surface mining within the state, subject to minimum federal standards. In order to conduct surface mining in Kentucky, a mine operator must obtain a permit for the overall operation from Kentucky’s Division of Mine Permits, as well as subsidiary permits related to water and stream quality, as required by the Clean Water Act. One of these permits is a § 404 permit, which is issued by the U.S. Army Corps of Engineers and is required for the discharge of dredged or fill material into waters of the United States. After obtaining a permit from the Division of Mine Permits, inter-venor Leeco, Inc. applied for and received a § 404 permit from the Corps. The permit authorizes Leeco to “mine through” and fill certain surface stream beds, which are already in a degraded state, and requires Leeco to offset the limited environmental effect of the filling by improving other streams in the watershed. The plaintiffs challenge the Corps’s issuance of the § 404 permit, arguing that the National Environmental Policy Act (“NEPA”) requires the Corps to have considered in its environmental assessment the public health impacts related to surface mining in general, and that the Corps violated the Clean Water Act by using a flawed analysis of the associated compensatory mitigation plan. In a comprehensive and thoughtful opinion, the district court rejected the plaintiffs’ arguments. This appeal followed. Because the Corps did not abuse its discretion in limiting the scope of its environmental analysis only to health effects closely related to the discharge of dredged or fill material into jurisdictional waters, the Corps did not violate NEPA. And because the Corps’s acceptance of Leeco’s compensatory mitigation plan was not an arbitrary and capricious exercise of its specialized expertise, the Corps did not violate its requirements under the Clean Water Act. Accordingly, we must uphold the Corps’s decision to issue the § 404 permit. We of course decide only the issues before us — whether the permit at issue in this case complies with the Clean Water Act and the National Environmental Policy Act. Our decision takes no position on the public policy questions of whether surface mining is in the larger public interest, or whether mountaintop removal should be allowed by the Commonwealth of Kentucky. Congress passed the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”) in order to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. § 1202(a). The Act set up a system of “cooperative federalism,” in which state governments could opt in to regulating coal surface mining in their states so long as they establish agencies to enact and administer their own regulatory programs consistent with federal minimum standards and subject to federal approval. See Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Under the Act, a state that administers a federally approved program “assume[s] exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” on non-federal lands, 30 U.S.C. § 1253(a), with limited federal oversight to ensure compliance with federal standards, id. § 1271. Kentucky’s Department for Natural Resources has assumed legal responsibility for implementation of SMCRA through its Division of Mine Permits. See Ky.Rev.Stat. §§ 350.028, 465(2). This program has been approved by the U.S. Department of the Interior since 1982. 30 C.F.R. § 917.10. Thus, any surface mining operation in the Commonwealth of Kentucky must be conducted with a permit from the Division of Mine Permits. See 30 U.S.C. § 1256(a). Although a SMCRA permit authorizes all of the activities related to a surface mining operation, it alone may not be sufficient to allow a mine operator to conduct surface mining operations. See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 190-91 (4th Cir.2009). Other permits may be required to authorize portions of the operation, if those specific activities are regulated by an independent regulatory program. For example, if a surface mining operation will affect the navigable waters of the United States, the Clean Water Act, 33 U.S.C. § 1251 et seq., which aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by eliminating “the discharge of pollutants into the navigable waters.” 33 U.S.C. § 1251(a)(1), requires a surface mine operator to obtain various other permits related to the quality of water and wetlands. For the typical surface mining operation, three different Clean Water Act permits are required. First, a mine operator must obtain a § 401 permit from the proper permitting agency to ensure that “any discharge into the navigable waters” complies with regulations designed to limit the discharge of pollutants into navigable waters and to ensure the maintenance of federal water quality standards. Id. § 1341. Second, a mine operator must obtain a § 402 permit for “the discharge of any pollutant, or combination of pollutants.” Id. § 1342. Finally, and most relevant to the present litigation, a mine operator must also obtain a § 404 permit “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344. This final permit must be obtained from the U.S. Army Corps of Engineers. See id. § 1344(d); 33 C.F.R. § 320.2(f). In conducting its review for a § 404 permit, the Corps is required to comply with guidelines promulgated by the Environmental Protection Agency (“EPA”), which are called the § 404(b)(1) Guidelines. 33 U.S.C. § 1344(b)(1); see also 33 C.F.R. § 320.2(f); 40 C.F.R. pt. 230. The review includes the consideration of the health and welfare of those that would be affected by the discharge into jurisdictional waters. For example, under the regulations, the Corps must not issue a permit if the discharge of dredged or fill material would “cause or contribute to significant degradation of the waters of the United States,” which may be constituted by certain effects considered individually and collectively, including “[significantly adverse effects of the discharge of pollutants on human health or welfare” and “[significantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values.” 40 C.F.R. § 230.10(c), (c)(1), (c)(4). The Corps additionally imposes some general policies that are to be considered in the evaluation of all permit applications, and not only § 404 permits. Under these policies, a decision must include “an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest,” and “reflect the national concern for both protection and utilization of important resources.” 33 C.F.R. § 320.4(a). In addition to its responsibilities under the Clean Water Act, the Corps must also comply with the requirements of NEPA, 42 U.S.C. § 4321 et seq., which requires federal agencies to “take a ‘hard look’ at the potential environmental consequences of their actions.” Aracoma Coal, 556 F.3d at 191 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350,109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). NEPA requires federal agencies to prepare a detailed statement, called an environmental impact statement, for every “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1502.3. When it is not clear whether an environmental impact statement is required, the agency will prepare an environmental assessment, “a concise public document ... that serves to ... [bjriefly 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. §§ 1501.3, 1501.4(b), 1508.9; see also Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 339 (6th Cir. 2006). If an environmental impact statement is not required, the agency must “[p]repare a finding of no significant impact,” 40 C.F.R. § 1501.4(e), that “briefly presents] the reasons why an action ... will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared,” id. § 1508.13. In practice, the environmental assessment generally serves as the finding of no significant impact when an environmental impact statement is not required. The present action concerns a proposed surface coal mining operation in Perry County, Kentucky, by the intervenor Lee-co, Inc. The proposed mining area and the stream beds within it are already environmentally degraded, having been heavily impacted in the past century by previous mining, logging, natural gas exploration, and agricultural activities. The Kentucky Department of Mine Permits authorized the mining operation, and then in early 2007 Leeco submitted an application to the Department of the Army for a permit to authorize the discharge of fill material into stream beds on the project site, as required by § 404 of the Clean Water Act. The Corps issued a public notice for Lee-co’s application, with a 30-day comment period. This original proposal sought to construct six hollow fills and six sediment control ponds and would have involved discharges into 22,761 linear feet of stream. In the following years, Leeco supplemented and revised its application. In June 2009 the Department of the Army, the EPA, and the Department of the Interior instituted an interagency action plan intended to “significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal law.” Implementing the Interagency Action Plan on Appalachian Surface Coal Mining (June 11, 2009), available at http://www.osmre.gov/ resources/mou/ASCM061109.pdf. In response to this plan, the EPA conducted a review of Leeco’s pending § 404 permit application. The EPA’s preliminary assessment concluded that there were “significant concerns that the project, as proposed, does not comply with the [EPA’s] 404(b)(1) Guidelines.” The EPA expressed concerns over water quality and mitigation attempts, as well as concern that “the proposed project may have significant human health impacts on the surrounding communities, all of which are low-income communities.” In a later letter, the EPA outlined extensive strategies on how to improve the plan. In response to these concerns from the EPA, Leeco submitted a significantly revised permit application on July 19, 2011. The new application consolidated the fill plan to only one large hollow fill and one sediment control pond. Id. The new plan would impact only 18,268 linear feet of streams, a decrease of 4,593 linear feet. Id. This later design would all together impact 11,607 linear feet of ephemeral streams (that flow only during periods of heavy precipitation), 5,073 linear feet of intermittent streams (that flow continuously only at certain times of the year, usually because the source, such as melting snow, is seasonal), and 1,588 linear feet of perennial streams (that flow year round). The revised application included a compensatory mitigation plan that would require Lee-co to replace 8,376 linear feet of stream in the same watershed area, to compensate for the loss of intermittent and perennial streams. In addition, Leeco agreed to pay the Kentucky Department of Fish and Wildlife Resources $752,047.50 in lieu of mitigation for the impacts on ephemeral streams. The Corps issued a new public notice on August 5, 2011, with a comment period that lasted through August 19, 2011. During this comment period, the Sierra Club submitted comments objecting to the proposal, and attached studies purporting to demonstrate general health concerns related to surface coal mining. On April 3, 2012, the EPA informed the Corps that it had no further concerns regarding the proposed project, indicating the EPA’s approval of the new plan. On May 25, 2012, the Corps completed its review and decision to issue the permit, along with a detailed document discussing its decision. In its decision, the Corps found that “issuance or denial of the requested permit would not constitute a major federal action that would significantly affect the quality of the human environment,” and that that determination “constitutes a Finding of No Significant Impact.” The Corps finally granted Leeco the § 404 permit on July 26, 2012. On October 17, 2012, the plaintiffs Kentuckians for the Commonwealth, a grassroots organization devoted to improving the quality of life for the citizens of Kentucky, and the Sierra Club, a national environmental nonprofit organization, filed a complaint against the Corps in the Western District of Kentucky, challenging the issuance of the permit and alleging that it was issued in violation of the Clean Water Act, NEPA, and the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Count One alleged that the Corps had violated NEPA by failing to issue an environmental impact statement, Count Two alleged that the Corps had failed to consider adverse effects on human health and welfare as required by the Clean Water Act § 404(b)(1) Guidelines, Count Three alleged that the Corps had violated its own regulations in failing to properly consider the public interest, and Count Four alleged that the Corps violated the Clean Water Act § 404(b)(1) Guidelines by issuing a permit that will cause or contribute to violations of water quality standards and significant degradation of waters of the United States. After motions and cross-motions for partial summary judgment, the district court, in a thoroughly reasoned opinion, granted summary judgment in favor of the Corps on all counts, dismissing the suit in its entirety on August 23, 2013. Kentuckians for the Commw. v. U.S. Army Corps of Eng’rs, 963 F.Supp.2d 670, 692-93, No. 3:12-CV-00682, 2013 WL 4516774, at *21 (W.D.Ky. Aug. 23, 2013). The court first held that the plaintiffs had standing because their members alleged an injury in the form of possible detrimental effects to their health, livelihood, and outdoor recreational pursuits. Id. at 679-80, 2013 WL 4516774 at *8. Regarding the NEPA claim, the court held that the Corps properly limited the scope of review to the filling of jurisdictional waters, because “under SMCRA, it is the [Kentucky Division of Mine Permits], and not the Corps, that has control and responsibility over the Stacy Branch mine site as a whole,” and the Corps was otherwise entitled to deference on the scope of review. Id. at 681-83, 2013 WL 4516774 at *10. The court also held that the plaintiffs’ comments during the second comment period that cited human health studies did not constitute “significant new information” requiring a supplemental environmental assessment. Id. at 68<U85, 2013 WL 4516774 at *12. With reasoning similar to that applied to the NEPA claim, the court held that the Corps properly limited the scope of its review regarding public health under the Clean Water Act § 404(b)(1) Guidelines, and that its environmental justice review under the Guidelines was not thereby arbitrary and capricious. Id. at 684-86, 2013 WL 4516774 at *12-13. In addressing the mitigation claim, the court first expressed doubt that the 2008 regulations pertaining to the assessment of mitigation plans applied to the permit, which was first submitted in 2007. Id. at 686-87, 2013 WL 4516774 at *14. The court held that, regardless of whether the 2008 regulations apply, the Corps adequately assessed stream function in its review of the mitigation plan, that it did not act arbitrarily and capriciously in relying on the Eastern Kentucky Stream Assessment Protocol, that it did not act inconsistently with regulations in approving an in-lieu fee payment to a stream-and-mitigation trust fund, and that its analysis of and plan for monitoring stream conductivity were not arbitrary and capricious. Id. at 686-92, 2013 WL 4516774 at *14-20. This appeal followed. On September 9, 2013, the district court issued an injunction pending this appeal. We review this grant of summary judgment in a challenge to the Corps’s permitting decision under the Clean Water Act and NEPA under the Administrative Procedure Act’s arbitrary and capricious standard. See Ky. River-keeper, Inc. v. Rowlette, 714 F.3d 402, 407 (6th Cir.2013). An agency’s decision is arbitrary and capricious if the agency has: 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. Id. (quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)). “Judicial review of NEPA compliance is limited in scope.” Id. (quoting Cmtys., Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.1992)). Judicial review “ensure[s] that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision is not arbitrary or capricious.” Id. (quoting Balt. Gas & Elec. Co. v. Nat’l Res. Def. Council, 462 U.S. 87, 97-98,103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). “Because NEPA is a procedural and not a results-driven statute, even agency action with adverse environmental effects can be NEPA-eom-pliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,191 (4th Cir.2009) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). On appeal, the plaintiffs have maintained two challenges to the Corps’s decision to issue the § 404 permit. First, the plaintiffs argue that the Corps violated NEPA by failing to consider the public health effects of the overall mining activity in conducting its NEPA review of the environmental effects of granting the § 404 permit, especially having considered overall economic benefits of the mining operation. Second, the plaintiffs argue that the Corps violated the Clean Water Act’s mitigation requirements by using a flawed analysis to assess the functional effects of the mitigation plan and by failing to substantiate one figure used in the calculation of the mitigation assessment protocol. First, the Corps did not violate NEPA by deciding not to consider the evidence linking surface coal mining in general to public health problems. In discussing the public health consequences of granting the § 404 permit, the Corps properly focused on the possible public health effects of discharges on the local water supply, as well as those effects caused by air pollution created by the machines that would be conducting permit-relevant site preparation and operations. The Corps reasonably limited its scope of review to the effects proximately caused by the specific activities that were authorized by the permit. Most importantly, the Corps complied with the relevant regulations interpreting and implementing NEPA’s requirements. The Corps did not entirely ignore the public health effects of granting the permit, but rather reasonably limited its scope of analysis only to those human health effects closely related to the discharge of fill or dredged material into jurisdictional stream beds. For example, the Corps assessed the potential impact of the permit activities on the local water supply, and it concluded, in large part because the nearest municipal water supply intake was a significant distance from the operation, that “it is not anticipated that this proposed project would affect the water supply.” Also, the Corps considered the effects of the permit activities on air pollution, concluding that the dust and emissions “will not exceed de minimis levels.” This analysis of health effects, albeit not as comprehensive and wide in scope as that demanded by the plaintiffs, was reasonable given the more limited nature of the threshold inquiry of whether the Corps’s action significantly affects the human environment. The Corps acted without abusing its discretion when it determined that the scope of its NEPA analysis should be limited to the local, proximate effects of the dredging and filling activities that were specifically authorized by the permit. The Council on Environmental Quality’s regulations grant the Corps some discretion in performing the analysis of whether a federal action is significant enough to warrant an environmental impact statement. With respect to potential health effects, the Council’s regulations suggest only that public health effects “should be considered,” 40 C.F.R. § 1508.27(b) (emphasis added). And when a set of effects is considered, the regulations allow substantial flexibility in delimiting which subsets of effects are relevant. In particular, the context of the federal agency’s action should be considered in determining the scope of its relevant effects: “Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole.” Id. § 1508.27(a). The Corps was not required, as the plaintiffs contend, to expand the scope of its review beyond the effects of the filling and dredging activity to the effects of the entire surface mining operation as a whole. The Corps regulations, the validity of which is not in dispute, govern the Corps’s obligations under NEPA. Those regulations state that any NEPA document related to a permit should only “address the impacts of the specific activity requiring a [Corps] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, app. B § 7(b)(1). Here, the overall mining project is not the specific activity authorized by the § 404 permit, nor does the Corps’s district engineer maintain sufficient control and responsibility over other portions of the entire project to warrant federal review. The specific activity that is the subject of the permit is only the dredging and filling of jurisdictional waters. The Clean Water Act, as only one aspect of a more comprehensive multi-permit regulatory scheme, requires the Corps to provide a § 404 permit only for the “discharge of dredged or fill material into the navigable waters.” 33 U.S.C. § 1344(a). The statement accompanying the Corps’s NEPA implementing regulations confirms the limited purpose of § 404, stating that “[t]he Corps authorizes the discharge of dredged or fill material in 404 permits” and that, “[tjherefore, the activity the Corps studies in its NEPA document is the discharge of dredged or fill material.” Environmental Quality; Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed.Reg. 3120, 3121 (Feb. 3, 1988) (“Corps Procedures”). The district court correctly determined that, given the Corps’s relatively minor role in the eongressionally designed scheme for regulating surface mining, the Corps did not have sufficient control and responsibility over other aspects of the surface mining operation to warrant expanding the scope of its NEPA review. See Kentuckians, 963 F.Supp.2d at 681-83, 2013 WL 4516774, at *10. It is clear that Congress intended SMCRA to create a centralized regulatory program for surface coal mining, and that the Corps’s role in the overlapping permitting scheme is secondary, affecting only a small albeit necessary part of the particular surface coal mining operation. In any case, because the question of the proper scope of analysis in the environmental assessment entails interpretation of the Corps’s own regulations, the Corps is entitled to substantial deference with regard to its determination that the district engineer lacked “sufficient control and responsibility” to warrant review of other portions of the entire mining project. In its decision, the Corps reasoned: The NEPA Scope of Analysis in this case would include jurisdictional “waters of the U.S.,” and the immediate adjacent riparian corridor that would be filled directly or indirectly by the construction of the Hollowfill, construction of the sediment pond, and the mining through of streams. A broader scope is not appropriate because the [Clean Water Act] does not provide the Corps legal authority to regulate surface coal mining beyond the limits of the “waters of the U.S.” Rather, overall surface coal mining operations are permitted by and regulated under SMCRA, administered by the Kentucky [Division] of Mine Permits. This reasoning properly weighed two of the factors that the Corps’s regulations use to determine whether there is sufficient control and responsibility to warrant the Corps to expand its scope of analysis to other portions of the state-authorized mining activity: “[t]he extent to which the entire project will be within Corps jurisdiction” and “[t]he extent of cumulative Federal control and responsibility.” 33 C.F.R. Pt. 325, App. B § 7(b) (2) (iii)-(iv). The Corps decision in this regard is consistent with the congressional design of both NEPA and the regulatory scheme at issue. Regarding surface coal mining regulation, Congress intended that primary regulatory power be placed in only one agency, in this case the Kentucky Department for Natural Resources. There are many considerations that must be balanced before authorizing a massive and environmentally significant operation, and Congress has determined that such a careful and sensitive decision is best made primarily by one decisionmaker. There are good reasons that Congress would not have designed a regulatory system in which each regulatory actor involved in a large operation, even in a comparatively minor way, is required to consider all of the effects of the overall project. The restriction of the Corps’s scope of analysis is consistent with the congressional policy to give to state governments the primary responsibility to regulate overall surface mining operations. In enacting SMCRA, Congress declared that “the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations ... should rest with the States.” 30 U.S.C. § 1201(f); see also Horizon Coal Corp. v. United States, 43 F.3d 234, 240 (6th Cir. 1994) (quoting Save Our Cumberland Mountains, Inc. v. Lujan, 963 F.2d 1541, 1544 (D.C.Cir.1992)). The Corps, when it adopted its NEPA-implementing regulations, stated that “in order to prevent the unwarranted situation where ‘the Federal tail wags the non-Federal dog’, the scope of analysis would be confined to the environmental effects of only the activity requiring a Corps permit.” Corps Procedures, 53 Fed.Reg. at 3122. To thwart Kentucky’s decision to permit surface mining by permitting the Corps to consider effects of the entire mining operation in its decisionmaking process would violate Congress’s intent to place primary responsibility for surface mining with state regulators. And although “NEPA is a procedural and not a results-driven statute,” Aracoma Coal, 556 F.3d at 191, adherence to its “procedures [is] almost certain to affect the agency’s substantive decision,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). See also 40 C.F.R. § 1500.1. It stands to reason that, in the context of a complete regulatory scheme, agencies may reasonably limit their NEPA review to only those effects proximately caused by the actions over which they have regulatory responsibility. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (citing Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 & n. 7, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983)). Moreover, the “rule of reason” recognized by the Supreme Court in Public Citizen dictates that agencies make NEPA determinations “based on the usefulness of any new potential information to the decisionmaking process.” Id. These principles, which support a reasonable delimitation of the proper NEPA scope of review, are effectuated in practice by the Corps’s analysis of whether it has “sufficient control and responsibility” over the whole project. See Aracoma Coal, 556 F.3d at 196-97; White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1040 (9th Cir.2009). The most closely analogous circuit court case, Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir.2009), strongly and persuasively supports the Corps’s decision to limit its scope of analysis. Like the instant case, Aracoma Coal involved the Corps’s NEPA obligations during the consideration of a § 404 permit application related to surface mining operations in a state in which the state manages an approved SMCRA regulatory program. See id. at 195. Recognizing that “[t]he Corps’ jurisdiction under [Clean Water Act] § 404 is limited to the narrow issue of the filling of jurisdictional waters,” id., and that “[u]nder SMCRA, the state of West Virginia has ‘exclusive jurisdiction over the regulation of surface coal mining and reclamation operations,’ ” id. (quoting 30 U.S.C. § 1253), the Fourth Circuit held that the Corps did not act arbitrarily and capriciously in determining that its scope of review in issuing a finding of no significant impact did not “extend[ ] beyond the Corps’ limited jurisdiction to include environmental effects on upland areas,” id. at 197. The court reasoned that “under the plain language of the [Corps’ NEPA implementing] regulation, activity beyond the filling of jurisdictional waters is not within the Corps’ ‘control and responsibility’ because upland environmental effects are ‘not essentially a product of Corps action.” Id. (quoting 33 C.F.R. pt. 325, app. B § 7(b)(2)). The plaintiffs in this case argue for an even wider scope of review than that rejected in Aracoma Coal. The Fourth Circuit rejected the plaintiffs’ argument that “the Corps’ § 404 permit is a permit for the entire valley fill, down to the last shovelful of dirt at the edge of the valley,” id. at 194, while here the plaintiffs argue that the entire mining operation is within the proper scope of the Corps’s NEPA review. The reasoning of Aracoma Coal precludes such a vast extension of NEPA review. The plaintiffs incorrectly argue that “[i]f the Corps does not investigate and address these serious health concerns, no agency will.” Appellants’ Reply Br. at 11. First, the Corps actually did consider public health in its substantive review of the § 404 permit. The EPA, which signed off on the permit and with which the Corps coordinated in reviewing the § 404 permit application’s compliance with the Clean Water Act and its associated regulations, specifically addressed concerns that “the proposed project may have significant health impacts on the surrounding communities, all of which are low-income communities.” More importantly, Kentucky’s Division of Mine Permits, in complying with the federal standards contained in SMCRA and through is power to impose stricter standards in Kentucky, has the means to address public health concerns associated with surface coal mining. SMCRA is designed in part to “to protect society and the environment from the adverse effects of surface coal mining operations,” 30 U.S.C. § 1202(a), through “the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public,” id. § 1201(d). Kentucky’s surface mining permitting program, as required by the comprehensive minimum federal standards, includes extensive regulations designed to minimize the harmful impacts of surface mining activities. This includes requirements to “minimize disturbance of the hydrologic balance in both the permit area and adjacent areas,” 405 Ky. Admin. Regs. 16:060 § 1(1), to ensure that “[discharges of water from areas disturbed by surface mining activities shall at all times be in compliance with all applicable federal and state water quality standards,” id. 16:070 § l(l)(g), to place excess spoil in designated areas designed to “[minimize the adverse effects of leachate and surface water run-off from the fill on surface and ground water,” id. 16:130 § l(l)(a), and to “minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and ... achieve enhancement of those resources where practicable,” id. 16:180 § 1(1). Generally, Kentucky’s regulatory program maps directly onto the federal minimum requirements established by any regulations passed pursuant to SMCRA. Ky.Rev.Stat. § 350.069. These comprehensive regulations, promulgated by the U.S. Department of the Interior and adopted by Kentucky’s Department for Natural Resources, are intended to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f). To the extent that there is scientific evidence establishing that surface mining is generally bad for the public health, the plaintiffs should raise these concerns with those agencies in which Congress has placed the primary responsibility of regulating surface mining, either the federal Office of Surface Mining or the federally approved state regulators. The plaintiffs also argue that the Corps violated its NEPA regulations by considering the positive economic impacts of the overall mining project without considering the public health impacts of the overall mining operation. This argument fails to take into account that the Corps has other obligations besides its NEPA obligations, and that the final decision document also contains independent (albeit related) analyses required by the Clean Water Act and the Corps’s own regulations. Even though the Corps’s regulations require a public interest review for all permit decisions, 33 C.F.R. § 320.4(a), and the § 404(b)(1) Guidelines require the consideration of certain effects on the public interest, see, e.g., 40 C.F.R. § 230.10(c), these are not NEPA obligations. It is true that for NEPA purposes “the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.” 33 C.F.R. Pt. 325, App. B, § 7(b)(3); see also Corps Procedures, 53 Fed.Reg. at 3122 (adopting rule from Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983)). However, the fact that the Corps used a wider scope of review in performing its public interest analysis, as required by the § 404(b)(1) Guidelines and its own regulations, does not mean that the Corps violated its NEPA obligations. By using one document to serve many functions, the Corps can limit the scope of its review in one part and expand it in another, as each regulatory task requires. For example, the discussions of economic benefits that the plaintiffs point to are contained within sections that discuss alternatives to granting the permit or analyze “human use characteristics,” which are relevant to the § 404(b)(1) Guidelines and the Corps’s public-interest review. The plaintiffs’ arguments conflate the substantive decision whether to grant a § 404 permit with the procedural requirements under NEPA. In determining to issue a finding of no significant impact, the Corps performed an environmental assessment, limited in scope pursuant to the Corps’s own regulations designed to determine whether a permit decision requires an environmental impact statement. The content of this analysis is rational and appears to be thorough. That ends the inquiry. There is no substantive component to NEPA review; this court may only “insist that the agency has, in fact, adequately studied the issue and taken a hard look at the environmental consequences of its decision.” Meister v. U.S. Dep’t of Agrie., 623 F.3d 363, 377 (6th Cir.2010). The Corps reasonably complied with its own regulations and did not act arbitrarily and capriciously. With respect to the plaintiffs second claim on appeal, namely that the mitigation plan violates the Clean Water Act, the Corps did not act arbitrarily and capriciously in determining that the compensatory mitigation plan proposed by Leeco in its 2011 permit application complied with the requirements of the § 404(b)(1) Guidelines. First, the Corps was entitled to rely on the Eastern Kentucky Stream Assessment Protocol (“EKSAP”), which provides for an assessment of functional stream quality in determining whether a mitigation plan sufficiently replaces the aquatic functionality of lost streams. According to the Corps’s decision document, the EKSAP is the product of federal and state interagency initiative and is designed to “assess[ ] the relative quality of a particular headwater stream ecosystem based on observations of regional indicator data concerning its physical^] ... chemical[,] ... and biological ... characteristics and provides an estimate of the integrity of the system as a whole.” The use of this type of metric complies with regulations and is consistent with relatively recent changes in mitigation plan policy. In 2008, the Corps and the EPA passed regulations confirming the validity of — indeed, a preference for— functional metrics designed “to replace lost aquatic resource functions.” See 33 C.F.R. § 332.3(f)(1); Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed.Reg. 19,594, 19,601 (Apr. 10, 2008). The fact that EKSAP uses structural proxies rather than direct measurements of aquatic function is consistent with the new regulations, since the changes in structural conditions rationally relate to improvements in functionality. See 33 C.F.R. § 332.3(f)(1). This particular plan employs the “natural channel design” strategy of mitigation, in which habitat structures in the stream will “give support to more species diversity” and a larger riparian buffer zone of vegetation along the stream will “ensure a more productive stream by means of shading and as a food source.” And the use of structural proxies that rationally predict aquatic functionality based on objective, measurable structural qualities of the stream satisfies the regulations’ command that “[pjerformance standards must be based on attributes that are objective and verifiable.” Id. § 332.5(b). In the end, given the various interrelated factors and possible assessment metrics that could be used in a mitigation plan, the choice of mitigation performance standards requires the exercise of complex scientific judgment and deference to the Corps’s expertise is appropriate. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Lastly, the Corps permissibly based its estimation of an eighty-percent likelihood of success on its experience with other mitigation projects. Without any evidence that the Corps’s ballpark figure is way off the mark, this court can defer to the expertise of the Corps in fulfilling its requirement to “assess the likelihood for ecological success and sustainability” in evaluating a compensatory mitigation plan. 33 C.F.R. § 332.3(a)(1). The sources cited by the plaintiff do not persuasively demonstrate that the mitigation is likely to be unsuccessful, since the pessimistic assessments of mitigation they cite are from reports over ten years old, which came out before the Corps’s adoption of the functional “watershed approach” in 2008. E.g., Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed.Reg. at 19,594. As further assurance of mitigation success, the possibility of failure in the primary mitigation plan is prepared for in a contingency plan that would be triggered in the circumstance that Leeco does not accomplish the mitigation plan. Moreover, one of the conditions of the mitigation plan is that a certain number of units of functional stream quality “would be held as a contingency against failure of the restoration to reach the predicted EKSAP scores.” In short, the Kentucky Division of Mine Permits, to which Congress has granted exclusive jurisdiction over the regulation of surface mining in Kentucky, approved Leeco’s surface mining operation. Meanwhile, the Corps of Engineers granted a secondary permit related only to the filling of jurisdictional waters. The Corps, in light of the entire project’s approval under the more comprehensive SMCRA, did not abuse its discretion in limiting the scope of its NEPA review to environmental consequences closely related to the filling of jurisdictional stream beds. Where an existing state regulatory scheme already governs surface coal mining, NEPA does not require the Corps to expand its review to the environmental consequences of the entire mining operation. The Corps also did not abuse its discretion in approving the mitigation plan provisions requiring the improvement of other local streams, since those provisions were rationally designed to ensure that there is not a net loss of aquatic function in the mine location’s watershed. The district court’s judgment is AFFIRMED. . The district court accurately described the kind of surface mining to be conducted: Surface mining entails the excavation of rock to expose and remove coal seams. Once the coal is extracted, as much as possible of the excavated rock (called "spoil”) is returned to the mine site in an attempt to restore natural ground contour. However, because the loosening of the rock and soil and incorporation of air causes the spoil to "swell” to occupy more volume, much cannot be returned to the area where it was blasted. Rather, the spoil is placed in "fills” located in adjacent hollows ("hollow fills” or "valley fills”) that, due to the landscape of the Central Appalachian region, often contain headwater streams.... [S]urface mining laws require that the drainage from both hollow fills and "mine through” areas pass through sediment control ponds or structures before being discharged into downstream waters. Each of these activities is subject to a series of overlapping permits and certifications involving both federal and state agencies.... Kentuckians for the Commw. v. U.S. Army Corps of Eng'rs, 963 F.Supp.2d 670, 672-73, No. 3:12-CV-00682, 2013 WL 4516774, at *1 (W.D.Ky. Aug. 23, 2013). . The plaintiffs argue that the Corps authorized actual surface coal mining, beyond the mere filling of stream beds, because Leeco’s permit states that the Corps "authoriz[es] your company’s proposal to construct ... various 'mine throughs.' ” This argument misconstrues the specialized language used in the permit and disregards the context in which the permit is granted. As the Corps explained at oral argument, "mining through” is the process of scraping away the surface of an ephemeral stream bed, extracting the coal seams that are then exposed, and refilling the stream bed. The Corps did not authorize mining per se, but only the discharges into streams that are a necessary part of a "mine through.” That is, the Corps authorized "mining through” because of the activity’s impacts on stream beds and not because of its purpose to extract coal. Furthermore, the Corps does not even have the authority to authorize surface coal mining, and the plaintiffs do not argue that the permit exceeded the scope of § 404. . This court must defer to the Corps’s interpretations of its own NEPA implementing regulations. See Ohio Valley Envtl. Coal. v. Ara-coma Coal Co., 556 F.3d 177, 193 (4th Cir. 2009). Courts generally "defer to the agency’s interpretation [of its own regulation] unless it is plainly erroneous or inconsistent with the regulation.” Summit Petroleum Corp. v. EPA, 690 F.3d 733, 740 (6th Cir.2012) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)) (internal quotation marks omitted). Plaintiffs are correct to point out that Auer deference applies only to disputes over the meaning of an agency’s own regulation. However, the dispute in this case concerns the interpretation of the Corps’s NEPA implementing regulations, in particular how to interpret the terms "specific activity requiring a ... permit” and "sufficient control and responsibility” in the context of assessing whether NEPA requires an environmental impact statement for the decision to grant a § 404 permit. It is true that Congress gave the authority to interpret NEPA in a general sense to the Council on Environmental Quality, Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979), which Congress instituted to "consult[ ] with” agencies to “insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.” 42 U.S.C. § 4332(2)(B). Pursuant to this mandate, the Council has instituted a number of regulations to help guide federal agencies in executing their NEPA obligations. However, the Council has also granted agencies significant flexibility in interpreting NEPA’s requirements for purposes of conducting their own independent NEPA reviews. See, e.g., 40 C.F.R. § 1507.1. Indeed, the Council’s regulations require federal agencies to, "as necessary, adopt procedures to supplement” the Council’s regulations, in particular procedures related to the identification of which actions require an environmental impact statement and which do not, and that such implementing regulations should be adopted after opportunity for public review and review by the Council. See id. § 1507.3. Under instruction from the Council, the Corps has instituted its own regulations to guide its preparation of NEPA-compliant environmental assessments and environmental impact statements. See 33 C.F.R. § 230.1; id. pt. 325, app. B. And because the Corps promulgated the specific regulations that govern the question of how great the scope of the Corps’s NEPA review is, see 40 C.F.R. pt. 1507, the Corps is entitled to deference with respect to the interpretation of those provisions. . The plaintiffs' reliance on 42 U.S.C. § 4332(2)(D) for the assertion that “[t]he Corps cannot rely on Kentucky's overlapping SMCRA jurisdiction to refuse to consider the full environmental impact of a mine it regulates” is misplaced. See Appellants’ Reply Br. at 7. That statute does not involve the kind of situation presented in this case. That statute only involves a situation in which there is "a major Federal action funded under a program of grants to States " and in which the environmental impact statement is "prepared by a State agency or official." 42 U.S.C. § 4332(2)(D) (emphasis added). That provision merely "allows a state agency to prepare an [environmental impact statement] for a federal agency if certain conditions are met.” Macht v. Skinner, 916 F.2d 13, 18 (D.C.Cir. 1990). When NEPA states that ''[t]he procedures in [§ 4332(2)(D) ] shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement,” it is referring to the federal official who has delegated NEPA responsibilities to the state-level grantee. See, e.g., Heeren v. City of Jamestown, Ky., 39 F.3d 628, 629 (6th Cir.1994). Here, there is no grant program and the Corps is not delegating its NEPA responsibility. . The reference to "upland areas” was to parts of the valley outside of the stream beds that would be filled. See id. at 186-87. The state SMCRA regulator had authorized the use of "valley fills,” while the Corps authorized only the filling of stream beds, which constituted only a portion of the valley to be filled. . We need not resolve the parties' dispute about whether these 2008 regulations apply to the Leeco permit application. The dispute arose because the original 2007 application would not be covered under the regulations, and there were significant revisions to the application before its final form took shape in 2011. This dispute presents a question requiring the interpretation of interrelated procedural regulations. Ultimately, however, the Corps assessed the application as though the 2008 mitigation regulations applied, and we affirm on that assumption.

Jones v. National Marine Fisheries Service

OPINION M. SMITH, Circuit Judge: In 2008, Oregon Resources Corporation (ORC) applied for various state permits to mine valuable mineral sands from an area near Coos Bay, Oregon. ORC also applied for a permit from the Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, because the project required filling in several acres of wetland. The Corps was required to comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., as part of the permitting process. The Corps therefore prepared an Environmental Assessment (EA), and issued a “Finding of No Significant Impact” (FONSI) in lieu of preparing a full Environmental Impact Statement (EIS), before ultimately issuing the requested Section 404 permit (ORC Section 404 Permit). The Bandon Woodlands Community Association and other plaintiffs (collectively Woodlands) challenge several aspects of the EA and FONSI. Specifically, Woodlands claim that (1) the EA was deficient because it did not adequately examine the risks associated with the potential generation of toxic hexavalent chromium (Cr +6) as a result of the proposed mining; (2) the FONSI was arbitrary and capricious because of “significant uncertainty” surrounding the likelihood and impact of Cr + 6 generation; and (3) the grant of the ORC Section 404 Permit was arbitrary and capricious because the Corps did not conduct an adequate “alternatives analysis.” We find Woodlands’ arguments without merit and affirm the district court’s grant of summary judgement to the Corps. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS A. ORC’s Mining Project ORC’s project involves mining naturally-occurring chromite, garnet, and zircon sands from four sites near Coos Bay, Oregon. The chromite and zircon sands are marketed to foundries for use in casting metal parts, while the garnet sands are sold for use in the water jet cutting industry. The ORC Section 404 Permit covers four sites, called the South Seven Devils, North Seven Devils, West Bohemia, and West Section 101 sites. These sites cover approximately 160 acres and are located on privately-owned timberlands. ORC uses standard excavation equipment to remove topsoil covering the mineral sands. Topsoil is then stockpiled along the margins of the mining area, while mineral sands are loaded into trucks and transported to ORC’s refining plant in Coos Bay. The refining plant uses a gravi-metric process to separate out the marketable sand, which makes up roughly twenty-five percent of the sand transported from the mining sites. The remaining seventy-five percent of the sand is returned to the mine site. As part of ORC’s reclamation plan, each area is backfilled with the non-mineral sands returned from the processing plant, in addition to other material removed in the mining process. Each excavated area is then graded and replanted with trees. The reclamation process also involves the creation of new wetland areas pursuant to a mitigation plan. Mining has already been in process for several years, and the project will be completed in roughly three to six years. B. The Permitting Process ORC submitted a Section 404 permit application to the Corps on May 8, 2008. The Corps’ decision to grant a Section 404 permit is subject to the requirements of both the NEPA and the Endangered Species Act (ESA), 16 U.S.C. § 1581 et seq., the latter of which requires the Corps to consult with the National Marine Fisheries Service (NMFS). Additionally, ORC was required to obtain approvals from a number of state agencies, including the Oregon Department of Geology and Minerals Industry (DOGAMI), the Oregon Department of State Lands, and the Oregon Department of Environmental Quality (DEQ). DEQ has jurisdiction over state water quality standards pursuant to Section 401 of the CWA. The state and federal agencies coordinated the permitting process in this case and provided technical support to one another. Shortly after ORC filed its permit application, the Corps contacted NMFS to begin informal consultation under the CWA. Over the next two years, the Corps and NMFS gathered information about the project and its potential impacts. The Corps and NMFS conducted site visits, held public and private meetings, evaluated information provided by stakeholders, including Woodlands, and coordinated with state agencies. Eventually, the Corps issued an EA discussing the potential environmental impacts of ORC’s mining project. The EA concluded that the project would not have a significant effect on the human environment, and, accordingly, the Corps issued a FONSI. Because it issued a FONSI, the Corps did not prepare an EIS. The NMFS issued a letter of concurrence with the EA, and ORC received all necessary state permits, including a Section 401 water quality certification from the DEQ. 1. Hexavalent Chromium Generation In its NEPA analysis, the Corps considered the potential for increased Cr +6 generation from the proposed mining. Woodlands’ public comments on the permit application noted that the chromite sands ORC planned to mine contained benign trivalent chromium (Cr +3), which can oxidize into toxic Cr +6 in the presence of manganese oxide, which is also present at the sites. Woodlands was concerned that ORC’s mining project could lead to increased Cr +6 generation, which could, in turn, contaminate ground and surface water. Woodlands submitted expert reports that recommended, among other things, ongoing monitoring during the mining process to ensure that the amount of Cr +6 did not increase. ORC responded to Woodlands’ comments and expert reports in a Biological Assessment (BA). The BA suggested that the risk of Cr +6 generation was minimal, because • The geology of the mining area did not indicate that chromite sands would react with manganese oxide to form Cr +6. Groundwater sampling demonstrated that the existing levels of Cr + 6 in groundwater at the mining sites was significantly below safe drinking limits. • Eh and pH levels at the sites were not conducive to the oxidization of either chromium or manganese, which is necessary for the formation of Cr +6. • The mining sites contained naturally occurring substances that would facilitate conversion of Cr +6 back into Cr +3 (Cr +6 attenuation). • Mining would remove the chromite sands necessary to form Cr +6 and would facilitate reactions with other substances likely to result in Cr +6 attenuation. • ORC’s planned monitoring regime could detect any increased concentration of Cr +6, allowing ORC and the DEQ to respond. In addition, the Corps and NMFS requested independent technical support from William Mason, a Registered Geologist with the DEQ. Mason examined the information provided by ORC and Woodlands, along with academic literature regarding Cr +6 generation, and summarized his findings in a memorandum (Mason Memorandum). The Mason Memorandum noted that the conditions at the mining sites favored Cr +6 attenuation rather than generation. The Mason Memorandum also noted that conditions at ORC’s proposed mining sites were similar to those present in some academic studies that found significant Cr +6 attenuation, but that the findings of such studies are not necessarily applicable to sites not considered by those studies due to the complex nature of subsurface geochemical reactions. The Mason Memorandum concluded that “it is possible that [Cr +6] could be generated in a post-mining environment, but it appears unlikely given the aquifer’s apparent potential for [Cr +6 attenuation].” Finally, the Mason Memorandum offered a number of “recommendations” related to ongoing monitoring after mining commenced. As a result of these recommendations, DOGAMI notified the Corps that it would require ongoing Cr +6 monitoring as part of ORC’s permit from that agency, and explained that it would require suspension of mining and/or other measures if the monitoring showed an increase in Cr +6 levels. The ORC Section 404 Permit issued by the Corps required ORC to comply with all conditions of the DEQ and DOGAMI permits. Based on this information from the DEQ and DOGAMI, the Corps concluded that the risks associated with the generation of Cr +6 would not “have a significant impact on the quality of the human environment.” 2. Cumulative Impact Analysis In addition to examining the potential for Cr +6 generation, the Corps considered the possibility that ORC would engage in future mining beyond the sites included in the Section 404 permit application, noting that ORC had suggested that it intended to mine for mineral sands along the Oregon coast “from Cape Arago to Port Or-ford.” The EA also noted that ORC had removed from the Section 404 permit application two sites that had already been surveyed, one of which, Section 33, had already been granted a mining permit by DOGAMI. The record also reflects, however, significant challenges to developing any of the mining sites that had been identified by ORC. Specifically: • The Section 33 site would require the construction of a costly one-mile-long access road across private property that itself would have involved potentially insurmountable permitting and leasing challenges. • The Shepard site also would have required construction of an additional haul road or the reversal of a prior Coos County land use decision barring the use of an existing road. • The Westbrook site was not owned by ORC and was encumbered by a mineral reservation in favor of another company. Accordingly, the Corps declined to examine the cumulative impact of mineral sands mining along the Oregon Coast, noting that it would consider the impacts of future projects if permits were sought for them. 3. Analysis of Practicable Alternatives The Corps also considered whether there were practical alternatives to the ORC’s proposed sites that would have less impact on the aquatic environment. ORC initially provided an alternatives analysis as part of its permit application. The Corps requested additional information regarding the alternative sites or project designs that ORC provided. ORC also provided information on its overall project purpose and the absence of alternative sites outside Oregon. After a meeting with the Corps, ORC submitted an additional detailed analysis regarding the unique nature of the chromite sands at the proposed mining sites, as well as the reasons ORC had included those sites in its proposal. The Corps pressed ORC regarding its decision not to use the Shepard, Section 33, or Westbrook sites, and ORC responded with a number of reasons for the decision, including the existence of significant logistical hurdles at each of those sites. Ultimately, the Corps considered a “no build alternative (do not mine), a subsurface alternative that would conduct mining beneath the wetlands ..., only mine areas that do not contain wetlands (mine uplands) and to mine all proposed areas and provide compensatory mitigation for wetland impacts.” Additionally, the Corps considered “Smaller Project Designs,” consisting of some combination of sites other than the North Seven Devils location. The Corps rejected these “smaller designs” because “[a] project of a smaller scale than the four proposed mine sites, although it may be practicable, will not provide the required quantity of chromite necessary to achieve the overall purpose.” The Corps also considered and rejected “Larger Project Designs,” “Different Project Designs,” “Other Sites Available to the Applicant,” and “Other Sites Not Available to the Applicant.” C. Prior Proceedings Woodlands filed this action in the Western District of Washington on October 12, 2010. The case was transferred to the District of Oregon on December 12, 2010. Woodlands sought a temporary restraining order and a preliminary injunction, both of which the district court denied. Woodlands then unsuccessfully sought an emergency injunction pending its appeal of the district court’s denial of the preliminary injunction. After our rejection of the emergency injunction, Woodlands withdrew its appeal of the preliminary injunction and the parties filed joint motions for summary judgment. The district court granted summary judgment to the Corps, finding that it had complied with all of its statutory obligations. Woodlands timely appealed. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s grant of summary judgment de novo. N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.2006). We review the Corps’ decisions under the APA’s arbitrary and capricious standard. 5 U.S.C. § 706(2)(A). This standard is deferential, and we cannot vacate those decisions unless the agency “has 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 would not be ascribed to a difference in view or the product of agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (internal quotations omitted). DISCUSSION I. Regulatory Framework Woodlands challenges the Corps’ decision to issue the ORC Section 404 Permit under two environmental statutes, the CWA and NEPA. A. Clean Water Act The CWA prohibits unauthorized discharge of any pollutant into waters of the United States. Section 404 of the CWA authorizes the Corps to issue permits for discharge of dredged or fill material into “navigable waters.” 33 U.S.C. § 1344(a). The “Section 404(b)(1) Guidelines,” developed by the EPA, govern the Section 404 permit process in conjunction with regulations issued by the Corps. 40 C.F.R. § 230 et seq. (the Guidelines); 33 C.F.R. § 323 et seq. (Corps’ regulations). Generally, the Corps is prohibited from permitting discharges under Section 404 where there “is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). Practicable alternatives must be “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose.” 40 C.F.R. § 230.10(a)(2). The CWA provides for a shared enforcement regime between federal and state agencies. PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (“[T]he Clean Water Act establishes distinct roles for the Federal and State Governments.”). States with approved programs take over responsibility for enforcing water quality standards within their borders. 33 U.S.C. § 1319(a). “In addition to these primary enforcement responsibilities, § 401 of the Act requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1, 511 U.S. at 707, 114 S.Ct. 1900 (citing 33 U.S.C. § 1341). A state’s certification of compliance under Section 401 is “conclusive with respect to water quality considerations,” unless the EPA advises otherwise. 33 C.F.R. § 320.4; Bering Strait Citizens for Responsible Res. Develop. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 949-50 (9th Cir.2008). Oregon has had an approved state program since 1973. 39 Fed.Reg. 26,061 (July 16, 1974); Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1430 (9th Cir.1991). B. National Environmental Policy Act NEPA “provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir.2002) (citations omitted). NEPA requires that agencies prepare an EIS for any proposed agency action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The Council on Environmental Quality (CEQ) has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. See 40 C.F.R. § 1500.3. The CEQ regulations allow an agency to prepare a more limited document, an environmental assessment, or EA. The EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a). If an EA determines that agency actions will not have a significant effect on the human environment, the agency must issue a FONSI. See 40 C.F.R. §§ 1501.4(e), 1508.13. Where the effects on the human environment are “highly uncertain or involve unique or unknown risks,” however, the agency must prepare an EIS. 40 C.F.R. § 1508.27(b)(5). If the Corps failed to comply with NEPA, Woodlands may be entitled to an injunction blocking any future mining pending satisfactory NEPA review, even though the project is underway. See West v. Sec’y of Dep’t of Transp., 206 F.3d 920, 925 (9th Cir.2000) (“[Although Stage 1 of the interchange project is complete, and the new interchange is carrying traffic ..., upon finding that defendants failed to comply with NEPA, our remedial powers would include remanding for additional environmental review and, conceivably, ordering the interchange closed or taken down.”); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1216 (9th Cir.1998) (“The injunction issued by this Court on November 5, 1998 [enjoining future logging, road building, or other ground disturbing activities in the permit area] ... shall remain in full force and effect until the Forest Service satisfies its NEPA obligations.”). II. The Corps Complied With NEPA Woodlands argues that the Corps failed to comply with NEPA because (1) contrary to NEPA regulations, the EA “contains only narratives of expert opinions,” Klamath-Siskiyou Wildlands v. BLM, 387 F.3d 989, 996 (9th Cir.2004) (citations omitted); (2) the uncertainty surrounding Cr + 6 generation rendered the FONSI arbitrary and capricious; and (3) the Corps’ failure to consider the environmental impacts of widespread mineral sands mining was arbitrary and capricious. We reject Woodlands’ arguments. A. The Corps Properly Considered the Risks of Hexavalent Chromium Generation “NEPA documents are inadequate if they contain only narratives of expert opinions.” Klamath-Siskiyou, 387 F.3d at 996. “[Allowing the [Agencies] to rely on expert opinion without hard data either vitiates a plaintiffs ability to challenge an agency action or results in the courts second guessing an agency’s scientific conclusions. As both of these results are unacceptable, we conclude that NEPA requires that the public receive the underlying environmental data from which [an Agency] expert derived her opinion.” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir.1998). In both Kla-math and Sporting Congress, the EAs “fail[ed] to provide the public with a basis for evaluating the impact of the [agency action]” because they did not include data that would permit the public to evaluate the agency decisions. Idaho Sporting Cong., 137 F.3d at 1150. Woodlands contends that the EA is deficient for the same reasons. Woodlands’ argument, however, ignores that an agency may incorporate data underlying an EA by reference. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1214 (9th Cir.2004) (quoting 40 C.F.R. § 1502.21). Here, the Corps did just that. The EA cited to publically-available data provided by ORC and discussed in the Mason Memorandum. The Mason Memorandum, a thorough study of the issues surrounding Cr +6 generation, includes data from numerous test wells drilled at the mining sites, as well as a review of academic literature related to Cr +6 generation and attenuation. That is all NEPA requires, and the EA was thus not deficient as were those at issue in Klamath or Sporting Congress. See Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 956 (9th Cir.2008) (“BSC argues that the Corps did not adequately consider the environmental impacts of the Rock Creek Mine Project in the EA.... This is incorrect. ... The Environmental Information Document, incorporated by reference in the EA, also includes specific data on the air quality issues at the site, and concludes that there are none that are significant.”). B. The Corps Properly Concluded that the Risk of Hexavalent Chromium Generation did not Warrant a Full Environmental Impact Statement. Woodlands next argues that significant uncertainty as to the likelihood and effect of Cr +6 generation renders the Corps’ FONSI and subsequent failure to prepare an EIS arbitrary and capricious. Although uncertainty is inherent in any environmental decision, an EIS is not required “anytime there is some uncertainty, but only [where] the effects of the project are highly uncertain.” Ctr. For Biological Diversity v. Kempthorne, 588 F.3d 701, 712 (9th Cir.2009) (internal quotations omitted). Here, three separate agencies examined ORC’s project and concluded that the risk of Cr +6 generation was minimal for two primary reasons: (1) There was no causal mechanism that would lead to increased Cr +6; and (2) the chemical makeup of the site favored Cr +6 attenuation rather than Cr +6 generation. Woodlands, however, argues that the Mason Memorandum established that a lack of site specific data rendered any conclusions regarding Cr +6 generation highly uncertain and that this uncertainty required the Corps to conduct a full EIS before granting the Section 404 Permit. See Nat’l Parks and Conservation Ass’n v. Babbitt, 241 F.3d 722, 732 (9th Cir.2001). We disagree. The Mason Memorandum, incorporated into the EA, concluded that: After carefully reviewing the BWCA and ORC submittals and a number of journal articles describing the fate and transport of chromium species, I feel that it is possible that hexavalent chromium could be generated in a post-mining environment, but it appears unlikely to be significant given the aquifer’s apparent potential to reduce Cr +6 to Cr +3 (i.e., presence of natural reductants such as iron, manganese, and organic matter). This conclusion, however, should be confirmed with easy and cost-effective field studies that can help quantify the attenuation capacity at a particular site. Citing the final sentence of this conclusion, Woodlands argues that the Mason Memorandum recognized “substantial uncertainty” surrounding issues of Cr +6 generation and attenuation and called for further studies to reduce that uncertainty. In context, however, it is clear that the Mason Memorandum does not support such a reading. The Mason Memorandum noted that, although data from the ORC drilling surveys is similar to sites with high attenuation capacities, “due to the complex geochemical nature of chromium in the subsurface, experimental field studies are too site-specific and not transferrable between sites.” The Memorandum further notes that “although it is possible to identify and quantify specific Cr +6 attenuation processes or factors in pure or simple systems (as in lab studies), [academics] recommend instituting a long-term site-specific monitoring of aqueous geochemical parameters to detect sudden changes in the system that could lead to mobilization of Cr +6.” The Mason Memorandum also contains a “Recommendations” section, immediately following the “Conclusions” section upon which Woodlands relies. There, Mason listed a number of recommendations, including: (1) continuing the groundwater monitoring program (including baseline monitoring) until mining has ceased and reclamation has been successfully complete; (2) analyzing groundwater samples for Cr +6 using a more current method; (3) adding geochemical sampling parameters to the monitoring regime; (4) adding a contingency to the ORC monitoring plan under the DOGAMI permit to expand the groundwater monitoring network and/or add surface water sampling stations if changes in the system appear to begin favoring the generation of Cr +6; and (5) add remedial action contingencies to the permit in the event that the mining appears to be causing metals to migrate toward surface water in concentrations that could pose a threat to ecological receptors. These recommendations were incorporated into the DOGAMI permit. In context, it is clear that the Mason Memorandum established that Cr +6 generation is unlikely to occur at the site. Rather than recommending additional studies in order to address remaining uncertainty, the Mason Memorandum made clear that the site specific nature of Cr +6 attenuation means that the only way to ensure that Cr +6 does not reach harmful levels is to monitor how Cr +6 behaves once mining begins. The DEQ conclusion thus does not, as Woodlands claims, suggest that additional studies prior to mining was needed to resolve any remaining uncertainty with respect to Cr +6 generation. Rather, the Mason Memorandum concluded that the risk of Cr +6 generation is minimal, and recommended monitoring to account for any site specific variation that might become apparent once mining began. Woodlands also argues that it was inappropriate for the Corps to “rely on monitoring [in] dismissing] potential impacts.” The Corps cannot rely on monitoring and mitigation alone in reaching a FONSI. See N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1084-85 (9th Cir.2011). This argument, however, misrepresents the role of monitoring in the Corps’ decision here. In Northern Plains, the Bureau of Land Management (BLM) informed the Surface Transportation Board (Board) that there was insufficient data regarding the effects of the proposed project on sage grouse. Id. at 1084. In response, the Board proposed to conduct sage grouse surveys during the project’s operation, as well as proposing “pre-construction surveys” to determine the extent of sage grouse habitat in the project area. Id. We concluded that the Board’s actions were arbitrary and capricious because (1) without data on sage grouse populations the agency could not carefully consider whether the project would have a significant environmental impact and (2) the lack of data available to the public during the EIS process deprived citizens of the opportunity to participate in the decision-making process. Id. at 1085. Here, by contrast, the Corps, relying in part on the Mason Memorandum, concluded that Cr +6 generation due to ORC’s mining project was unlikely given the site conditions. The Mason Memorandum also noted that, because of the site specific nature of Cr +6 attenuation, academic literature recommends long term monitoring of a site in order to ensure that conditions do not change. Monitoring thus does not serve to dismiss the risk of Cr +6 generation, or to obtain data necessary to make a well informed environmental impact analysis, but merely to confirm that Cr +6 generation is behaving as the site conditions suggest that it will. This data is thus not required for the Corps to make an informed decision regarding significant environmental impacts as was the case in Northern Plains, nor is it relevant to public participation in the decision-making process. Id. Further, the Section 401 Certification issued by DEQ contains mitigation measures, including the suspension of mining activities. These measures will serve to identify any unexpected increased Cr +6 generation and to halt mining (the potential cause of such increased Cr +6) until the problem is addressed. The Corps is, to this extent, entitled to rely on mitigation measures pursuant to state permits. See Friends of the Payette v. Horseshoe Bend Hydroelec. Co., 988 F.2d 989, 993 (9th Cir.1993). C. The Corps Properly Declined to Consider Cumulative Impacts of Future Chromium Mining NEPA requires an agency to consider the cumulative impacts of a project. 40 C.F.R. § 1508.27(b)(7). NEPA’s implementing regulations define “cumulative impacts” as “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.” 40 C.F.R. § 1508.7. An agency need only consider “[t]he cumulative effects of projects that [the applicant] is already proposing.” Lands Council v. Powell, 395 F.3d 1019, 1023 (9th Cir.2005). “For any project that is not yet proposed, and is more remote in time,” by contrast, “a cumulative effects analysis would be both speculative and premature.” Id. Woodlands argues that the Corps failed to analyze the cumulative impacts of ORC’s mining project, pointing to ORC’s plans to widen the scope of mining in the future. But, the majority of these plans are speculative and have not been reduced to specific proposals. Woodlands also claims that the three alternative sites considered in the EA as possible future projects require the Corps to perform a cumulative impact analysis. In Northern Plains, we determined that the Board’s decision to consider only five years of cumulative impacts was arbitrary and capricious. N. Plains, 668 F.3d at 1079. Our decision was based on the fact that the BLM had previously prepared an EIS that projected the growth of mining activity over the next 20 years. Id. at 1078-79. In light of this study, we found that projects outside of the five year time frame were “reasonably foreseeable,” and that the Board’s failure to analyze the cumulative effects of these projects was arbitrary and capricious. Id. at 1079. Here, by contrast, there is no reliable study or projection of future mining in this case. ORC’s general statements regarding a desire for increased mining give no information as to the scope or location of any future projects or even how many such projects ORC contemplates pursuing. The general plans for expanded mining recited by Woodlands thus do not require a cumulative impacts analysis. See id.; Envtl. Protect. Info. Ctr. v. Forest Serv. (EPIC), 451 F.3d 1005, 1014 (9th Cir.2006). The three sites excluded from the application, Section 33, Shepard, and West-brook, all face significant logistical hurdles to development. The Section 33 site would have required the construction of a costly access road across private property that would have involved potentially insurmountable permitting and leasing challenges. The Shepard site also would have required construction of an additional haul road, or the reversal of a prior Coos County land use decision barring the use of an existing road. The Westbrook site was not owned by ORC, and was encumbered by a mineral reservation in favor of another company that would have made it economically infeasible to mine. It was thus unclear whether ORC will pursue mining these sites at all, much less whether ORC had developed an actual plan or proposal that was sufficiently well-defined to “permit meaningful consideration.” EPIC, 451 F.3d at 1014. Under these circumstances, the Corps was not required to consider the cumulative impact of speculative widespread mining for mineral sands on the Oregon coast. Id. III. The Corps’ Alternative Analysis did not Violate the CWA The CWA requires the Corps to conduct an analysis of alternative sites and project designs. Bering Strait, 524 F.3d at 947. Woodlands alleges several deficiencies with the alternatives analysis conducted in this case: (1) that the “Smaller Project Design” considered by the Corps was actually larger than the proposed project; and (2) that the Corps improperly considered ORC’s financing requirements as part of its alternatives analysis. Woodlands’ contention that the Corps failed to consider smaller designs is simply incorrect. The EA notes that mining any of the parcels in isolation would not be practicable because they each contain insufficient chromium to meet the project’s needs. Woodlands’ two arguments thus collapse into the question of whether the Corps erred by considering the quantity of chromium that ORC needed to mine in order to meet its financing obligations. An alternative is practicable if it is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). An agency may consider a project’s economic requirements in order to determine whether alternative sites are practicable. Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989); Nw. Envtl. Defense Ctr. v. Wood, 947 F.Supp. 1371, 1377 (D.Or.1996), aff'd, 97 F.3d 1460 (9th Cir.1996); see also City of Shoreacres v. Waterworth, 420 F.3d 440, 448 (5th Cir.2005) (noting that a site was not logistically possible because funds from the bond issued to fund the project could not be expended in the proposed alternative site). In order to conduct a practicable alternatives test, the Corps must first determine the “overall project purposes.” 40 C.F.R. § 230.10(a)(2). Although the Corps may not manipulate the project purpose so as to exclude alternative sites, “the Corps has a duty to take into account the objectives of the applicant’s project.” Sylvester, 882 F.2d at 409. The project purpose here is to “obtain specific minerals ... to support foundry and waterjet cutting industry needs in national and world markets.” In order to obtain the minerals, ORC must not only mine the mineral-rich sands, but also extract the chromite. Accordingly, in order for the project to meet its purpose, ORC must extract sufficient resources to support that type of mining activity. Logically, no one would seek financing to build a refining facility if it were not possible to extract a sufficient quantity of minerals to make the project profitable. See Waterworth, 420 F.3d at 448. Accordingly, the Corps did not err in rejecting the individual sites because such sites would not provide a sufficient quantity of chromite to meet the project’s purpose. AFFIRMED. . Two other sites, Section 33 and Shepard, were withdrawn from the application by ORC.

Hoosier Environmental Council v. United States Army Corps of Engineers

POSNER, Circuit Judge. This appeal requires us to consider the scope of the duty imposed on the Army Corps of Engineers by section 404 of the Clean Water Act, 33 U.S.C. § 1344, and its implementing regulations, to protect wetlands that contain or are covered by waters of the United States (and so are within federal jurisdiction) from environmental degradation by — in this case — the construction of a highway. Wetlands are environmentally significant because they help recharge groundwater sources, filter water, control flooding, and provide a habitat for many animal and plant species, as do the streams that carry water to wetlands, and are also of concern in this case. Section 404(a) of the Act authorizes the Secretary of the Army (in practice, the Army Corps of Engineers) to issue permits “for the discharge of dredged or fill material into the navigable waters” of the United States. 33 U.S.C. § 1344(a). Implementing regulations state that a permit will be denied if the Corps finds that there is “a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem,” 40 C.F.R. § 230.10(a), or if the discharge “would be contrary to the public interest.” 33 C.F.R. § 320.4(a)(1). The terms we’ve italicized are the ones critical to this case. 1-69 is an interstate highway (part of the federal interstate highway system) that when completed will run from Canada to Mexico (and of course in the opposite direction as well) through a number of states including Indiana. At present, however, the highway consists of disjointed segments. One of the breaks is between Indianapolis in central Indiana and Evansville in the extreme southwestern corner of the state. A federal interstate highway (1-70) runs between Indianapolis and Terre Haute. A lesser federal highway, Route 41, runs between Terre Haute and Evansville. As shown in the map below, these two highways form the sides of an approximate right triangle. The direct route between Indianapolis and Evansville is the hypotenuse and thus the shorter of the two routes — 142 miles rather than 155 miles long. The roads on the direct route (the hypotenuse) tend to be narrow and crowded with truck traffic and to experience an above-average incidence of traffic accidents. The Federal Highway Administration and the Indiana Department of Transportation (the latter a defendant in this suit by environmental groups; the other principal defendant is the Army Corps of Engineers) decided that a worthwhile contribution to the completion of I-69 would be to build an interstate highway on the hypotenuse. The highway would thus be a segment of 1-69. The circled area on the map indicates a completed section of the new highway, section 3, that is the immediate subject of this lawsuit. Alternative Routes For 1-69 From Indianapolis To Evansville Environmentalists opposed building a highway on the direct route on the ground that it would destroy wetlands, disrupt forests, and also disrupt “karst” ecosystems, unusual landscapes permeated by caves and other formations that provide rich habitats for wildlife, including such endangered and threatened species as the Indiana bat (endangered) and the bald eagle (threatened). See U.S. Fish & Wildlife Service Midwest Region, “Karst Ecosystems,” www.fws.gov/midwest/ecosystem conservation/karst.html (visited July 1, 2013). Most of the environmental concerns have been resolved, however; this case is concerned just with the filling of wetlands and of stream crossings. Filling stream crossings means placing gravel, rock, or dirt in a stream in order to support a road that bridges the stream or even blocks it, in which event however a culvert can be built to conduct the stream under the road. The Clean Water Act requires a permit to fill streams that are waters of the United States — that is, that are within federal jurisdiction, as the waters affected by the highway are. The permit granted by the Corps allows six streams in section 3 to be filled where the highway crosses them, in addition to permitting the destruction of wetlands. The two types of action — destroying wetlands and filling streams — are the actions challenged as violations of the Clean Water Act. To simplify exposition, we’ll ignore the streams. The plaintiffs advocate, in lieu of the new highway, simply upgrading to federal interstate highway standards the 88-mile stretch of Route 41 from Terre Haute to Evansville. That would bring the entire Indianapolis-Evansville route up to those standards. The environmental impact would be slight because all that would be involved would be upgrading an existing highway that occupies only 57 percent (88/155 miles) of the indirect route. This suggested alternative to the new highway would also be $1 billion cheaper ($1 billion versus $2 billion). The federal and state highway authorities filed, as they were required to do, Environmental Impact Statements, which concluded that building a new interstate highway on the direct route was preferable to upgrading the indirect route. After a suit contending that the highway would violate the National Environmental Protection Act failed, Hoosier Environmental Council v. U.S. Dept. of Transportation, No. 1:06-cv-1442-DFH-TAB, 2007 WL 4302642, at *1 (S.D.Ind. Dec. 10, 2007), the highway authorities began addressing the exact location of the highway within the direct route and the placement of structures ancillary to the new highway, such as bridges and culverts. The proposed highway was divided into six sections. Sections 1 through 3 have been built; sections 4 through 6 have not yet been built though section 4 is under construction. Section 3, a 26-mile stretch, is as we said the immediate subject of this case. The grant of the Clean Water Act permit for section 1 was not challenged. The grant of the permit for section 2 was challenged, but that case has been stayed to await the outcome of this case. We don’t know the current status of challenges, if any, to the other sections. In considering the permit application for section 3, the Corps concentrated on the likely effect on wetlands (and on stream crossings, but as we said we’re ignoring those in the interest of simplicity) of the six bridges planned to cross the new highway in that section. The Corps concluded that the bridges wouldn’t violate the Clean Water Act because no less environmentally damaging alternative was practicable and this section of the highway was not contrary to the public interest. Damage to wetlands would be modest and would be offset by the creation of new wetlands, as would be required by the Clean Water Act permit that the Corps would issue. The plaintiffs don’t disagree with the Corps’ conclusion that the plan for section 3 of the highway minimizes the wetland effects of that section. Their objection is to the choice of the direct route (the hypotenuse), of which section 3 is just one slice, over the indirect one. They argue that the Corps failed to consider whether the direct route as a whole, rather than one section of it, would be in the public interest and whether the indirect route (upgraded as we explained earlier) would be a practicable alternative. But the district court found the Corps’ analysis adequate to justify the grant of the permit and so awarded summary judgment to the defendants, precipitating this appeal. The Indiana Department of Transportation argues that the case is moot. Section 3 of 1-69 has been built, was opened to traffic last November, and is now in full use. It is too late, therefore, the Department argues, for a court to provide the relief sought by the plaintiffs. That is not correct. A case is moot only if “it is impossible for a court to grant any effectual relief whatever to the prevailing party,” Decker v. Northwest Environmental Defense Center, — U.S. —, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013) (emphasis added), quoting Knox v. Service Employees Int’l Union, Local 1000, — U.S. —, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012), as when a case is settled. One possibility for relief in this case would be an injunction requiring the defendants to rip up section 3 and recreate the wetlands it has destroyed. See, e.g., Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156, 1166-67 (10th Cir.2012); United States v. Bailey, 571 F.3d 791, 804-06 (8th Cir.2009); Mark C. Rouvalis, Comment, “Restoration of Wetlands Under Section 404 of the Clean Water Act: An Analytical Synthesis of Statutory and Case Law Principles,” 15 Boston College Environmental Affairs L.Rev. 295, 298-300 (1988). That would be an extreme measure, unlikely to be ordered, but the fact that relief is unlikely does not render a case moot. But we find almost incomprehensible the plaintiffs’ failure, which they do not mention in their briefs and were unable to explain at the oral argument, to have sought a preliminary injunction against the construction of section 3 — or indeed against the construction of any segment of the 1-69 project, since their contention is that the indirect route is superior to the direct one and that the Corps was required to compare both routes in their entirety. A motion for a preliminary injunction might well have been denied, but the denial of a preliminary injunction is immediately appealable and would have brought the litigation to a swifter conclusion. By their lassitude the plaintiffs have increased substantially the cost of the relief they seek, for now that cost would include the cost of destroying section 3; and the cost of an injunction is a material consideration in the decision whether to grant it. But this is not an issue we need pursue, as we don’t think the plaintiffs are entitled to relief in any event. Anyway all this has nothing to do with mootness. So on to the merits, where the first issue is the scope of the Corps of Engineers’ duty to consider alternatives to proposed projects that threaten wetlands. Did it adequately consider whether the indirect route was a practicable alternative to the direct route? If it was practicable, and superior from an environmental standpoint, then the “practicable alternative.” regulation required the Corps to deny a Clean Water Act permit for the direct route. An alternative is “practicable” if it is “capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). With cost, technological feasibility, and relative environmental impacts not disputed, the only question is whether the indirect route would achieve the “overall project purposes.” Because of the magnitude of the project to fill the 1-69 gap between Indianapolis and Evansville, the planning for it has, as is authorized, 23 C.F.R. § 771.111(g); 40 C.F.R. §§ 1502.20, 1508.28; see, e.g., Nevada v. Dept. of Energy, 457 F.3d 78, 91-92 (D.C.Cir.2006), proceeded in two separate stages, conventionally but unilluminatingly termed “Tier I” and “Tier II.” “Tiering refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.” 40 C.F.R. § 1508.28. Tiering enables agencies “to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review.” § 1502.20. Tiering is common in highway projects, see Shenandoah Valley Network v. Capka, 669 F.3d 194, 196-97 (4th Cir.2012); Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1220-21 (11th Cir.2002); Conservation Law Foundation v. Federal Highway Administration, 24 F.3d 1465, 1474-75 (1st Cir.1994), which (federal highway projects in particular) often are both complicated and protracted. The aim of the Tier I analysis of the Indianapolis-Evansville project was to pick the “corridor” — the route, about 2000 feet wide, within which the highway would be located. It was at Tier I that the direct route was picked over the indirect one. Obviously the highway itself would not be 2000 feet wide. Determining its exact placement within the corridor (its “alignment”) was deferred to the Tier II analysis. It was at Tier II that the preferred alternative — a highway on the direct route — was divided into six sections. As the plaintiffs point out, the highway authorities may not shirk responsible analysis of environmental harms by “segmentation,” Swain v. Brinegar, 542 F.2d 364, 368-71 (7th Cir.1976) (en banc); Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19-20 (8th Cir.1973), that is, by evaluating those harms severally rather than jointly. The environmental harms caused by section 3 are modest when the possibility of re-creating the wetlands destroyed by the section is taken into account. But without an estimate of the environmental harms likely to be caused by all six sections, the Corps of Engineers would be unable to determine the aggregate environmental damage that a highway on the direct route would cause. Yet given the alignment (locational) options within each route (that is, where precisely to locate a highway in each 2000-foot-wide corridor slice) and also the options concerning the number and siting of ancillary structures such as bridges, culverts, and rest areas, an attempt at an exact comparison of the effect on wetlands of all possible alternative routes would have made the Tier I analysis unmanageable. There is a difference between “segmentation” in its pejorative sense, and — what is within administrative discretion — breaking a complex investigation into manageable bits. Kleppe v. Sierra Club, 427 U.S. 390, 412-15, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). The Federal Highway Administration’s Environmental Impact Statement, issued as part of the Tier I analysis, had compared the effects on wetlands of the two corridors. It had found that the indirect route would harm only between 22 and 40 acres of wetlands and the direct route 75 acres. The alignment of the highway and the number and location of ancillary structures could affect these figures, but those determinations were properly deferred to Tier II. The Corps’ role was simplified by the fact that it is required to assess the environmental impacts only of the “practicable” alternatives. The selection of the corridor, involving a comparison of alternatives that is likely to illuminate practicability, is a task in the first instance for the transportation agencies, in this case the Federal Highway Administration and the Indiana Department of Transportation. The Corps of Engineers is not responsible for the interstate highway system. At the same time the transportation agencies are not free to ignore environmental impacts. They must indicate in the Environmental Impact Statement that is required for any major project, such as an interstate highway, the likely environmental consequences of their choice of corridor. 42 U.S.C. § 4332(2)(C); 23 C.F.R. § 771.133; Simmons v. U.S. Army Corps of Engi neers, 120 F.3d 664, 666 (7th Cir.1997); see also Council on Environmental Quality, “The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years” 9 (January 1997), www.blm.gov/or/regulations/files/nepa25fn. pdf (visited July 1, 2013). The destruction of wetlands is an environmental harm. Executive Order 11990, “Protection of Wetlands,” 42 Fed.Reg. 26961 (May 24, 1977). So the highway agencies must estimate the impact of a proposed highway on wetlands. And to do that they must consult agencies that have environmental responsibilities, 42 U.S.C. § 4332(2)(C), such as the EPA and the Corps of Engineers. The highway agencies did that and with the advice they received concluded that upgrading the indirect route was not a practicable alternative — the direct route was the least environmentally damaging corridor alternative that was practicable. And while the damage was greater than would result from upgrading the indirect route, it was modest — 75 acres of wetlands (less than 12 percent of one square mile) to be re-created elsewhere. The Corps of Engineers reviewed a draft of the Environmental Impact Statement before it was issued and concurred in the statement’s analysis of the alternatives (the direct and indirect routes). It did not formally approve the direct route at Tier I because it wanted the additional information that the Tier II analysis would provide — information that would enable it to determine the effects on wetlands of alternative highway configurations within the preferred corridor. So although participating in the Tier I corridor determination the Corps deferred its consideration of the detailed impact on wetlands, and on the public interest more broadly (for remember the two separate regulations that it must apply before it may issue a Clean Water Act permit), until as a result of the Tier II analysis it knew exactly where the new highway and its crossings and any other ancillary structures were planned to be. The Tier II analysis required sectioning in order to be manageable. Once it was decided that the aggregate wetlands damage that the new highway would create was modest, the further task of determining the optimal alignment of the highway, and the optimal location and design of ancillary structures, within each section to minimize wetlands damage could best be performed piecemeal. The highway wasn’t going to be built all at once. Construction would start at its southernmost point and Clean Water Act permits would be granted or denied when the analysis of the wetland effects of alternative configurations was completed for each segment. The Corps might have had either to devote six times the resources to conduct the permit analysis for all six sections at once, to the prejudice of its other assignments, or to have delayed the start and completion of construction for years as a smaller staff did first section 1, and then section 2, and so forth but did not grant a permit until it had analyzed all six sections. Instead, moving section by section and coming to section 3, the Corps assessed the impact on wetlands both of alternative locations of the highway within the corridor and of alternative locations for the crossings in section 3, and it decided that the planned locations were superior to any other possible locations in that section. The Corps explained that “in light of [the Federal Highway Administration’s] detailed alternatives analysis [in Tier I] of alternative corridors for the Interstate 69 project,” which had determined that the direct route was the least environmentally damaging practicable alternative, the Corps needed to consider only the choice between on the one hand alternative alignments within the direct route, and on the other hand not building the highway at all if the direct route was also impracticable. For it was apparent from the Tier I analysis that the indirect route had too many serious drawbacks to be considered “practicable.” The direct route was shorter, would provide convenient access to more towns, notably Bloomington with its large public university (the main campus of Indiana University), and would reduce the number of traffic accidents. The indirect route would reduce travel time between only a few towns in southwest Indiana and do little to reduce traffic congestion, traffic accidents, or pollution from traffic. The effect on wetlands of either route would as we know be modest. Although the Corps has an independent responsibility to enforce the Clean Water Act and so cannot just rubberstamp another agency’s assurances concerning practicability and environmental harm, it isn’t required to reinvent the wheel. If another agency has conducted a responsible analysis the Corps can rely on it in making its own decision. After all, it is permitted to rely (though not uncritically) on submissions by private permit applicants and on consultants, see Van Abbema v. Fornell, 807 F.2d 633, 638-42 (7th Cir.1986); Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, supra, 702 F.3d at 1170-71; Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1270-71 (10th Cir.2004); Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir.1986) (“the Corps’ regulations do not require the Corps to undertake an independent investigation or to gather its own information upon which to base” an environmental assessment), and it necessarily relies heavily on them — so why not on federal agencies that have relevant responsibilities and experience? For the Corps to assume unilateral responsibility for determining the acceptability from a transportation standpoint of alternative highway projects would usurp the responsibility that federal and state law have assigned to federal and state transportation authorities. The wetlands tail would be wagging the highway dog. The Corps would have to bulk out its staff with experts on highway design, construction, and transportation. The duty of the Corps is “to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose.” Utahns for Better Transportation v. U.S. Dept. of Transportation, 305 F.3d 1152, 1189 (10th Cir.2002). The basic purpose of the 1-69 highway project was to be, and has been, determined elsewhere in government. The Corps’ reliance on findings of other agencies relating to the central functions of those agencies is an example of what economists call the division of labor; it reaps the benefits of specialization; it is both efficient and inevitable. Different agencies have different comparative advantages in resolving different issues and therefore need not duplicate each others’ studies; instead they can use the results of those studies as inputs into their own determinations. Unsurprisingly the applicable regulations expect the agencies to collaborate, 40 C.F.R. § 230.10(a)(4), as they did in regard to the 1-69 project. The highway administrations determined not unreasonably that the overall purposes of the new highway project could not be fulfilled by the indirect route. The Corps could proceed from there to determine whether the effect on wetlands of the direct route had been minimized. The Corps found that the plan minimized damage to wetlands in section 3 by the way it configured the alignment of the highway and the number, location, and design of the auxiliary structures and by the provision for re-creating elsewhere the wetlands that the highway would destroy. The plaintiffs criticize some of the analysis conducted by the highway administrations and adopted by the Corps. They note an erroneous statement in the analysis of alternative routes in the Environmental Impact Statement: the indirect route “provides no benefit on ... increased access to major institutions of higher education.” Actually the indirect route would enable 122,000 more persons to drive to a major institution of higher education (defined as an institution enrolling more than 5000 students) within an hour. But the direct route will give 446,-000 persons the same improved access to higher education. And this is just one of the improvements that the direct route when completed will make to the transportation network of southwestern Indiana. A second error alleged is that the analysis of alternatives rejected the indirect route in part because it “would require the largest number of business relocations (70-131) as well as a moderately high number of home relocations (264-335),” when in truth the direct route requires comparable numbers: “76 business relocations and 390 home relocations.” So which route would require more relocations is unclear, and of course relocations may differ greatly in their consequences. But there was no error; the figures are correct and were acknowledged in the analysis. The plaintiffs just wish the highway agencies had weighed this factor more heavily. They were not required to do so. The amount of relocation was never thought to be decisive; it was just one factor among many to be considered in assessing the practicability of the alternative corridors. We have yet to consider whether the Corps of Engineers conducted an adequate public interest review, as required by the second regulation that we quoted from at the outset and now must quote in full: The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process. That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people. 33 C.F.R. § 320.4(a)(1); see also Sierra Club v. Sigler, 695 F.2d 957, 975 (5th Cir.1983). It would be unrealistic to think that the Corps could, within a reasonable time and with its limited resources — not to mention the limits of human knowledge — actually analyze each of these factors in depth, attach a weight to each, and by adding up all the weights determine whether to approve a project. The regulation is overly ambitious, and should perhaps be considered aspirational. Especially when as in this case the Corps is given a chance to and does weigh in on the highway agencies’ analysis of the relative benefits and costs of a proposed highway project, it should be able to rely on that analysis, if it is a responsible analysis, while conducting its own analysis of those factors that are within its competence, such as effects on wetlands. Indeed as an original matter one might have thought that since the concern of the Clean Water Act is with water, the requirement of assessing the public interest was intended only to make sure that the Corps did not casually surrender its duty to protect wetlands (and navigable waters of the United States more generally) to vague invocations of “public interest.” But the Supreme Court has held that, no, the regulation is to be interpreted literally and so requires the Corps to evaluate all the factors listed in it. Cf. United States v. Alaska, 503 U.S. 569, 580-83, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992). And the Corps did this, so far as it was possible to do. For in concluding that granting a Clean Water Act permit for section 3 would be in the public interest the Corps analyzed a remarkable number of public interest factors: substrate; currents, circulation or drainage patterns; suspended particulates; turbidity; water quality; flood control functions; storm, wave and erosion buffers; erosion and creation patterns; aquifer recharge; baseflow; mixing zone; special aquatic sites; habitat for fish and other aquatic organisms; wildlife habitat; endangered or threatened species; biological availability of possible contaminants in dredged or fill material; existing and potential water supplies, water conservation, water-related recreation; aesthetics; parks, national and historic monuments, wild and scenic rivers, wilderness areas, research sites, etc.; traffic/transportation patterns; energy consumption or generation; navigation; safety; air quality; noise; historic properties; land-use qualification; economics; prime and unique farmland; food and fiber production; general water quality; mineral needs; consideration of private property; cumulative and secondary impacts; environmental justice; the relative extent of the public and private need for the proposed work; the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work; and the extent and permanence of the beneficial and/or detrimental effects the proposed structures or work may have on the public and private uses to which the area is suited. The plaintiffs have not shown that the conclusion the Corps drew from its detailed and highly technical analysis — that section 3 of the direct route is in the public interest — was unreasonable. It’s true that the Corps hasn’t done and won’t be doing a public interest analysis of the entire project — all six sections. But there does not appear to be a dispute over whether the project as a whole is contrary to the public interest — and it might be an impertinence for the Corps of Engineers to decide that a sister federal agency, the Federal Highway Administration, was proposing a project that was not in the public interest. Anyway the highway agencies’ Environmental Impact Statements had covered most, maybe all, of the ground that a public interest analysis would have covered. The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms (improper “segmentation,” discussed earlier). They may be playing a delay game: make the Corps do a public interest analysis from the ground up (along with an all-at-once six-section permit analysis) in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3-making it a road to nowhere. Affirmed.

Hillsdale Environmental Loss Prevention, Inc. v. United States Army Corps of Engineers

TYMKOVICH, Circuit Judge. This case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act, 33 U.S.C. §§ 1251-1387, and the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370H. The district court denied Hills-dale’s motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requests we set aside the Corps’s decision to grant the permit because the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement. We conclude the Corps’s decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. I. Background In 2007, BNSF applied for a permit from the Corps to dredge and fill waters of the United States (§ 404 permit) as part of its plan to construct a new intermodal facility in the Kansas City area. BNSF operates a transcontinental railroad, the Southern Mainline, that passes through Kansas City. BNSF sought to construct the new intermodal facility near the Southern Mainline because its current Kansas City facility, the Argentine Yard, is inadequate to handle the current volume of freight shipped through Kansas City and lacks space to expand. BNSF identified a site near Gardner, Kansas as its preferred location for the new intermodal facility. The Gardner site consists of 490 acres of primarily agricultural land, containing 28,000 linear feet of streams and nearly 8 acres of wetlands. Construction of the intermodal facility would affect only a portion of these. The unnamed and seasonally dry streams are tributaries of Big Bull Creek, which flows into Hillsdale Lake, a Corps-operated reservoir. The Gardner site is located roughly one-half mile from a residential subdivision, and two miles from Interstate 35. BNSF anticipates businesses dependent on the intermodal facility will use an adjacent 567 acres to construct a logistics center. After receiving BNSF’s application, the Corps issued a public notice describing the application and solicited comments from the public. The Corps worked with other federal, state, and local authorities regarding the proposal, and asked the EPA to participate in its review as a cooperating agency. BNSF and its consultants provided the Corps with information relevant to this analysis. The Corps then prepared a draft environmental assessment based on this information and comments provided by other agencies. As part of its alternatives analysis under the Clean Water Act (CWA), the Corps considered many options, including modifications to existing BNSF facilities, seven alternative sites for a new intermodal facility, alternative designs for the facility, and a no-action alternative. Based on this review, the Corps concluded modifications to BNSF’s existing facilities were infeasible due to space limitations. The Corps also found the no-action alternative would have detrimental impacts on regional traffic and air quality because increased shipping by trucks would be necessary to handle all growth in freight shipments in the area. In its analysis of alternative sites for the intermodal facility, the Corps compared the proposed sites to criteria provided by BNSF. For example, BNSF required the site to be close to existing rail tracks and highways, large enough to handle the projected volume of freight, and within 30 miles of BNSF’s existing intermodal facility at the Argentine Yard. After applying BNSF’s criteria, the Corps eliminated all alternatives as impracticable except for the Gardner site and a nearby location, Wellsville North. Therefore, the Corps analyzed the potential environmental impacts only of the Gardner and Wellsville North sites. The Corps determined construction at Gardner would impact 17,302 linear feet of streams and 4.61 acres of wetlands, whereas construction at Wellsville North would impact 19,594 linear feet of streams and 15.83 acres of wetlands. It also determined the streams and wetlands at Wellsville North were of a higher quality than those at Gardner. Based on this comparison, the Corps concluded construction at Gardner was the least environmentally damaging practicable alternative under the CWA. The Corps also prepared an environmental assessment to consider the impact of BNSF’s proposal on the human environment, as required by the National Environmental Policy Act (NEPA). This analysis considered both direct and reasonably foreseeable indirect impacts to land use, air quality, noise, traffic, water quality, threatened and endangered species, and cultural resources. Its air quality analysis was based on a report developed by a BNSF consultant in conjunction with the EPA, the Kansas Department of Health and the Environment (KDHE), and the Mid-America Regional Council. This report went through multiple rounds of review and analysis to incorporate feedback from these agencies. The report modeled emissions from on-site trains, trucks, miscellaneous heavy equipment used at the intermodal facility, and off-site trucks traveling to the intermodal facility, as well as the health risks associated with these emissions. The Corps determined air quality impacts from the project would not be significant, with the possible exception of fugitive dust emissions. Because BNSF and KDHE entered a binding agreement to monitor dust emissions at the site and adopt mitigation measures should emissions exceed specified levels, the Corps concluded the intermodal facility was unlikely to have any significant impacts on air quality. The EPA and KDHE concurred with this analysis. The Corps’s water quality analysis considered impacts to local streams and wetlands, as well as water quality. The Corps concluded construction at Gardner would impact 17,302 linear feet of streams and 4.61 acres of wetlands. But it also found BNSF would reroute 9,100 linear feet of streams, create 7.18 acres of wetlands, and restore a large, degraded wetland on the site. And the Corps found the intermodal facility was unlikely to significantly impact local groundwater. The agency concluded the overall impacts to onsite waters would not be significant. After the Corps released its final environmental assessment and finding of no significant impact, it issued BNSF a § 404 permit. Soon after, Hillsdale filed a complaint in federal district court challenging the Corps’s environmental analysis under both NEPA and the CWA. Hillsdale also moved for a preliminary injunction to halt construction of the intermodal facility, which the district court denied. The district court then granted summary judgment to the Corps. The court upheld the Corps’s conclusion that the Gardner site was the least environmentally damaging practicable alternative under the CWA. The court also affirmed the Corps’s NEPA analysis of air and water impacts, concluding the Corps’s reliance on KDHE’s mitigation agreement was reasonable, its air quality assessment methodologies were also reasonable, and the project was not highly controversial. This appeal followed. II. Discussion We review the district court’s grant of summary judgment de novo. New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 704-05 (10th Cir.2009) (New Mexico). Because suits alleging NEPA and CWA violations are brought under the Administrative Procedure Act (APA), we review the underlying agency • decision to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir.2006). An action is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) 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, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment. New Mexico, 565 F.3d at 704 (internal quotation omitted). Our inquiry under the APA must be thorough, but the standard of review is very deferential to the agency. Forest Guardians v. U.S. Fish and Wildlife Serv., 611 F.3d 692, 704 (10th Cir.2010). “A presumption of validity attaches to the agency action and the burden of proof rests with the parties who challenge such action.” Morris v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir.), cert. denied — U.S.-, 131 S.Ct. 602, 178 L.Ed.2d 436 (2010) (internal quotation and alteration omitted). We may set aside the agency’s decision “only for substantial procedural or substantive reasons.” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 780 (10th Cir.2006). “Deficiencies in an [environmental assessment] that are mere ‘flyspecks’ and do not defeat NEPA’s goals of informed decisionmaking and informed public comment will not lead to reversal.” New Mexico, 565 F.3d at 704. “Furthermore, even if an agency violates the APA, its error does not require reversal unless a plaintiff demonstrates prejudice resulting from the error.” Prairie Band Pottawatomie Nation v. Federal Highway Admin., 684 F.3d 1002, 1008 (10th Cir.2012) (Prairie Band); 5 U.S.C. § 706(2)(F) (“[D]ue account shall be taken of the rule of prejudicial error.”). A. Clean Water Act The CWA prohibits dredging or filling “waters of the United States” without a permit from the Corps. 33 U.S.C. § 1344; Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269 (10th Cir.2004). This permit, known as a § 404 permit, requires the Corps to review projects and ensure jurisdictional waters are not disturbed without an adequate study of alternatives. Neither party disputes that the streams and wetlands on the Gardner site are waters of the United States. Before the Corps may issue a § 404 permit, it must determine there is “no practicable alternative” to the proposed activity “which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). A practicable alternative is one that is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). When a project is not water dependent, a presumption arises that there are “practicable alternatives that do not involve special aquatic sites” and “have less adverse impact on the aquatic ecosystem.” Id. § 230.10(a)(3). In such cases, the § 404 applicant must rebut this presumption if an alternative involving the destruction of U.S. waters is chosen. Greater Yellowstone Coal., 359 F.3d at 1269 (citing Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1186-87 (10th Cir.2002) (Utahns)). The intermodal facility is not water dependent, so § 230.10(a)(3)’s presumption applies in this case. B. National Environmental Policy Act NEPA “requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” New Mexico, 565 F.3d at 703. NEPA requires an agency to prepare an environmental assessment prior to undertaking any “major federal action” to determine whether the proposed action is likely to “significantly affect[] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The environmental assessment must discuss the need for the proposal, alternatives to the proposal, and the environmental impacts of the proposal and any alternatives. 40 C.F.R. § 1508.9(b). This includes not only direct but also indirect and cumulative impacts. Id. §§ 1508.7,1508.8. If the agency concludes the action is unlikely to have a significant impact, it may issue a finding of no significant impact and proceed. 40 C.F.R. § 1508.13. If the agency reaches the opposite conclusion, it must prepare an environmental impact statement (EIS) to thoroughly analyze the action’s predicted environmental impacts, including direct, indirect, and cumulative impacts. 42 U.S.C. § 4332(2)(C); 40 C.F.R. pt. 1502 & §§ 1508.11,1508.25. The significance of an impact is determined by the action’s context and its intensity. Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1224 (10th Cir.2002) (.Middle Rio Grande). Applicable regulations require agencies to consider ten factors when assessing intensity, including the proposed action’s effects on public health, the unique characteristics of the geographic area, the uncertainty of potential effects, and the degree of controversy surrounding the effects on the human environment. 40 C.F.R. § 1508.27(b). Unlike the Clean Water Act, NEPA requires no substantive result. New Mexico, 565 F.3d at 704. NEPA imposes procedural, information-gathering requirements on an agency, but is silent about the course of action the agency should take. Id. “NEPA merely prohibits uninformed—rather than unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). C. Mootness Because we denied Hillsdale an injunction pending this appeal, BNSF has proceeded with construction of the intermodal facility. In a motion filed July 27, 2012, the Corps informed us construction of the facility is now 65% complete, 95% of jurisdictional waters have been filled or rerouted, and 95% of the associated mitigation is now complete. The Corps suggests this renders Hillsdale’s appeal moot and asks us to dismiss the appeal. The Corps acknowledges the appeal is not constitutionally moot, as we still have the ability to afford Hillsdale at least partial relief. See WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182-83 (10th Cir.2012). But the Corps argues the appeal is prudentially moot because “the case is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010) (internal quotation omitted). The Corps argues the intermodal facility’s construction, particularly as it affects the waters of the United States, is so far advanced that we should decline to grant Hillsdale relief. Unsurprisingly, Hillsdale disagrees. BNSF, for its part, suggests we avoid the question altogether and simply decide the appeal on the merits. We are convinced, as the Corps acknowledges, that this appeal is not moot in the Article III sense. As for prudential mootness, it is within the court’s discretion to decline to address an issue on prudential mootness grounds. See S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997). We have no trouble concluding that Hillsdale’s NEPA claims are not prudentially moot. Because the intermodal facility is not yet complete, there is a reasonable probability that if we find the Corps’s environmental assessment was defective and remand for further analysis, new information revealed by that analysis could motivate the Corps to revise its decision by, for example, requiring additional mitigation. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (holding preparation of a postdecision EIS may sometimes be necessary, so long as an agency can still take environmentally significant action). The Corps does not lack authority to impose additional mitigation, as it argues, because it may add conditions to permits even after they are granted when those conditions are necessary to satisfy legal requirements or protect the public interest. 33 C.F.R. §§ 325.4(a), 325.7. BNSF’s permit specifically states that the Corps may reevaluate its decision to issue the permit at any time, and such reevaluation may lead to the suspension, modification, or revocation of the permit. Accordingly, we decline to find Hillsdale’s NEPA claims prudentially moot. Whether Hillsdale’s CWA claim is prudentially moot is a closer question. Nearly all of the jurisdictional waters on the Gardner site have been filled, and nearly all of the associated mitigation is now complete. We still have the theoretical power to afford Hillsdale relief by enjoining further construction on the Gardner site, or even ordering BNSF to restore the preexisting wetlands and streams. But the progress in the intermodal facility’s construction undoubtedly changes the balance of the equities. Nonetheless, whether this change is so drastic as to render Hills-dale’s appeal prudentially moot is a question we need not reach since Hillsdale’s CWA claim fails on the merits. See Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1210 (10th Cir.2012) (finding a claim is prudentially moot when “the anticipated benefits of a remedial decree no longer justify the trouble of deciding the case on the merits.”); see also 13B Charles A. Wright, et al., Federal Practice and Procedure § 3533.1 (3d ed. 2008). D. Clean Water Act Alternatives Analysis Hillsdale contends the Corps did not properly apply Clean Water Act regulations in concluding there was no practicable alternative to the Gardner site. The thrust of its argument is that the Corps did not rebut the presumption that a practicable alternative existed which did not involve the destruction of U.S. waters. 40 C.F.R. § 230.10(a)(3). The Corps’s actions are presumptively valid under the APA, and Hillsdale bears the burden of proving the agency acted arbitrarily and capriciously. Forest Guardians, 611 F.3d at 704. But BNSF has a duty under the CWA to rebut the presumption that a less environmentally damaging practicable alternative to the Gardner site exists. 40 C.F.R. § 230.10(a)(3). Thus, if Hillsdale establishes BNSF did not rebut this presumption but the Corps issued BNSF a § 404 permit anyway, Hillsdale can establish the Corps acted arbitrarily and capriciously, “or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We review the Corps’s practicability analysis and determination that the selected site was the least environmentally damaging practicable alternative under this standard of review. 1. Practicability Analysis For an alternative to be selected under the Corps’s CWA regulations, it must be practicable, as defined by 40 C.F.R. § 230.10(a)(2), and it must be less environmentally damaging than all other practicable alternatives. Id. § 230.10(a)(3). Practicability is thus a threshold determination. “[A]n agency need not analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective.” Prairie Band, 684 F.3d at 1011 (internal quotation omitted); see also Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 432 (10th Cir.1996). The quéstion, then, is what information the Corps must provide to support its practicability determination. Hillsdale contends the Corps and BNSF failed to provide “detailed, clear and convincing” information establishing the eliminated alternatives were not practicable. Utahns for Better Transp., 305 F.3d at 1186. The Corps’s regulations state that “practicable alternatives ... are presumed to be available, unless clearly demonstrated otherwise.” 40 C.F.R. § 230.10(a)(3) (emphasis added). This does not require a specific level of detail to rebut the presumption, but only record evidence the agency took a hard look at the proposals and reached a meaningful conclusion based on the evidence. Under this understanding. of 40 C.F.R. § 230.10(a)(3)’s presumption, the Corps met this standard. The Corps’s environmental assessment discusses BNSF’s site selection criteria in detail, and clearly indicates whether each proposed alternative met those criteria. The environmental assessment does not explain in detail the application of every criterion to every site, but it provides more explanation when necessary. For example, the environmental assessment explains that a proposed site near Olathe, Kansas, is close to an airport, and lighting at the site would conflict with airport operations. Hillsdale does not clearly state what sort of additional information the Corps should have provided in rejecting alternatives. For several criteria, additional information or explanation would not be helpful. For example, one criterion states the site must have a minimum of 300 to 400 acres to accommodate ten 8,000-foot stripping tracks. Two sites — Wellsville South and Olathe — simply are not large enough to satisfy this criterion. Explaining in more detail why they are not large enough is unnecessary. Similarly, BNSF mandated the site be within 30 miles of its existing intermodal facility at the Argentine Yard because many of its customers have facilities nearby. It would be too expensive for them to ship freight more than 30 miles from the new intermodal facility to their existing facilities. Again, several of the sites were simply too far from the Argentine Yard to meet this criterion, and explaining this in greater detail is also unnecessary. Finally, the Corps’s analysis was appropriate given the minor-to-moderate antieipated impact of BNSF’s project. The Corps’s CWA regulations instruct it to “recognize the different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity.” 40 C.F.R. § 230.6(b). In addition, “[ajlthough all requirements in § 230.10 must be met, the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities.” Id. § 230.10. Our decision in Greater Yellowstone Coalition better explains this process. There, we upheld the Corps’s approval of a project that would destroy 1.45 acres of wetlands but improve 32.65 acres of wetlands and add new wetlands, even though the Corps failed to consider an obvious alternative: committing more of the developer’s property to the project so more of the development could be located away from wetlands and bald eagle habitat. 359 F.3d at 1270-71. We noted the impacts to jurisdictional waters were minimal and possibly even beneficial and held the Corps adequately supported its alternatives analysis in light of the project’s anticipated impact. Id. Here, the impacts to U.S. waters also are projected to be minimal. Construction of the intermodal facility at Gardner will affect 4.61 acres of “low-quality” wetlands and 17,302 feet of similarly low-quality streams, which have low or intermittent flows. App. Vol. XIV at 4577. The largest seasonal stream, P-1, is now mostly dry, as the bulk of its flow came from a wastewater treatment facility that shut down in 2008. Based on these conditions, the Corps estimated the impact to onsite waters will be minor to moderate. In addition, BNSF’s proposal includes a conservation corridor that will create 7.18 new acres of wetlands, realign approximately 9,100 feet of the P-1 stream, and restore a large existing wetland. Given the minor-to-moderate anticipated impact to U.S. waters, the Corps was not required to extensively document why the eliminated alternatives were impracticable. 2. Practicable Alternatives This leads to Hillsdale’s next argument: that the Corps had a duty under § 230.10(a)(3) to locate additional practicable sites that do not contain jurisdictional waters. They contend it is “virtually certain” a suitable site for the new intermodal facility that does not contain jurisdictional waters exists somewhere along the Southern Mainline, and the Corps violated its duty under § 230.10(a)(3) by failing to locate such a site. Aplt. Br. at 35. To be practicable, an alternative site would have to satisfy BNSF’s site selection criteria, including the requirement that the site be located within 30 miles of the Argentine Yard. The intermodal facility is needed to serve the Kansas City area, so BNSF could not build the intermodal facility anywhere along the “hundreds of miles” of the Southern Mainline in the Midwest, as Hillsdale argues. Id. at 34. In addition, the Corps considered seven alternative sites within or near this fairly limited geographical area. There is no magic number of alternatives the Corps must consider for its analysis to be acceptable, but the agency must draw the line somewhere, even when § 230.10(a)(3)’s presumption applies. “There will always be more data that could be gathered; agencies must have some discretion to decide when to draw the line and move forward with decisionmaking.” Habitat Educ. Ctr., Inc. v. U.S. Forest Serv., 673 F.3d 518, 531 (7th Cir.2012) (quoting Town of Winthrop v. FAA, 535 F.3d 1, 11 (1st Cir.2008)). If Hillsdale had identified an obvious practicable alternative with no jurisdictional waters that the Corps failed to consider, we might conclude the Corps failed in its duty. But Hillsdale has not identified such a site, and even if it had, it should have brought the site to the Corps’s attention. See River Rd. Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 452-53 (7th Cir.1985). Hillsdale instead identified two sites, Le Loup and Ottawa, which the Corps actually considered but found impracticable. Thus Hillsdale has not established the Corps acted arbitrarily and capriciously by failing to find an alternative site that would not involve the destruction of jurisdictional waters. 3. Duty to Evaluate Hillsdale’s final argument is that the Corps did not critically evaluate the accuracy and necessity of BNSF’s site selection criteria. In particular, it argues the 30-mile criterion was baseless and claims the Corps should have required BNSF to consider sites farther from the Argentine Yard. The Corps has a duty to independently evaluate BNSF’s site selection criteria. Greater Yellowstone Coal, 359 F.3d at 1270. In Utahns, we held the Corps acted arbitrarily and capriciously by eliminating an alternative without verifying the applicant’s claim that it was prohibitively expensive. 305 F.3d at 1187. Utahns did not state what sort of critical assessment was required, merely that the Corps failed to assert independent verification of the applicant’s cost estimates and the record contained no evidence of such evaluation. Id. at 1165. In contrast, there was evidence here that the Corps questioned BNSF’s criteria by requiring BNSF to seriously consider the Wellsville North site. In addition, the environmental assessment discusses each criterion in some detail, explaining the reasoning behind its application to the proposal. The 30-mile criterion, in particular, is supported by a BNSF study of shipping costs at a similar intermodal facility in Alliance, Texas. Based on this study, BNSF estimated it would cost its customers more than $1 million in additional shipping costs during the intermodal facility’s first year of operation if the facility were located at Wellsville North (34.4 miles from the Argentine Yard) versus Gardner (28.6 miles). Hillsdale contends this study only showed a de minimis difference in shipping costs and the Corps should have rejected or discounted it. This argument fails for two reasons. First, the Corps’s CWA regulations stipulate “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the marketplace.” 33 C.F.R. § 320.4(q). The Corps is not entitled to reject an applicant’s determination that a particular type of development is economically advantageous. See Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989). Further, the Corps is entitled to accept a project applicant’s criteria based on information the applicant submits. Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C.Cir.2011). In Van Antwerp, the plaintiff challenged the Corps’s acceptance of an applicant’s claim that an 8% rate of return was necessary to secure financing for its project, and that alternatives to its preferred site offered a lower rate of return. Id. at 1152. Van Antwerp found a report submitted by the applicant sufficiently supported the Corps’s acceptance of the 8% figure as the minimum acceptable rate of return on the project. Id. Like the applicant in Van Antwerp, BNSF submitted a study showing its customers’ costs increase the farther they have to transport goods from an intermodal facility to their places of business. BNSF’s study establishes its customers will experience real cost increases if BNSF builds its facility more than 30 miles from the Argentine Yard. The Corps was entitled to rely on this study. Id.; see also Sylvester, 882 F.2d at 409 (“In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics.”). As the Corps’s acceptance of the 30-mile criterion finds support in the record, the Corps did not act arbitrarily and capriciously by failing to take additional steps to verify BNSF’s claim that sites more than 30 miles from the Argentine Yard were infeasible. See River Road Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 452-53 (7th Cir.1985) (“The Corps is not a business consulting firm. It is in no position to conduct ... a study that would have to ... evaluate [BNSF’s] business needs....).” Second, the Corps’s analysis was appropriate in light of the anticipated environmental impact. The Corps in Greater Yellowstone Coalition also failed to “examine whether any commitment of Ranch property beyond the 359 acres” allotted by the developer would compromise the viability of the developer’s ranch. 359 F.3d at 1271. Despite a lack of “any evidentiary support for such a conclusion” in the record, Greater Yellowstone Coalition held this was not arbitrary and capricious in light of the project’s minor anticipated impact to jurisdictional waters. Id. The project here is also anticipated to have a minor impact on jurisdictional waters. And BNSF’s transportation cost study provides significantly more support for the 30-mile criterion than the applicant in Greater Yellowstone Coalition provided for the 359-acre limit. The Corps’s analysis of this criterion was not arbitrary and capricious in light of this anticipated impact. Ip. Conclusion Because the Corps did not act arbitrarily and capriciously by excluding all but two of the proposed alternative sites as impracticable, we affirm the Corps’s determination that Gardner was the least environmentally damaging practicable alternative of the two remaining sites. Both the Gardner and Wellsville North sites contain wetlands. The Corps examined both sites and determined construction at Wellsville North would impact more wetlands and streams than at Gardner. It also determined the wetlands and streams at Wells-ville North were of a higher quality than the wetlands and streams at Gardner. Hillsdale does not claim construction at Wellsville North would be less environmentally damaging than at Gardner. Thus the Corps successfully rebutted the presumption that less environmentally damaging practicable alternatives to the Gardner site existed, and its CWA analysis was not arbitrary and capricious. E. Fugitive Dust Emissions Pursuant to NEPA, the Corps prepared an environmental assessment but declined to prepare an EIS after finding the intermodal facility would not have a significant environmental impact. As part of its analysis, the Corps considered BNSF’s model of fugitive dust emissions at the intermodal facility, which concluded such emissions would be insignificant. Fugitive dust is dust that accumulates on hard surfaces like roads and is launched into the air by vehicle traffic and other disturbances. The EPA designed its own model of dust emissions at the intermodal facility and concluded they had the localized potential to exceed National Ambient Air Quality Standards (NAAQS) for particulate emissions. As a result of the EPA’s analysis, the Corps determined the inter-modal facility had the potential for localized significant impacts. In response, BNSF entered a mitigation agreement with KDHE. The agreement requires BNSF to monitor dust emissions at the intermodal facility for two years after the facility opens, using a KDHEoperated sampling station. If dust concentrations exceed specified levels — levels lower than the applicable NAAQS — BNSF must work with KDHE to determine the cause of the elevated dust emissions and must take concrete steps to reduce those emissions. KDHE can require BNSF to implement one of the mitigation options listed in the agreement, such as spraying for dust suppression, or it can require BNSF to adopt any other mitigation practice it determines is appropriate. BNSF must submit a written compliance plan to KDHE, which the agency must approve. The agreement is enforceable under Kansas law. See Kan. Stat. Ann. § 65-3011. KDHE may extend the agreement if dust emissions exceed the specified levels at any time during the monitoring period. The Corps decided this agreement sufficiently mitigated the potential for significant fugitive dust emissions at the site. The EPA agreed. The Corps then issued a finding of no significant impact, concluding, based on this mitigation agreement, that the potential for fugitive dust emissions did not warrant preparation of an EIS. The Corps can decline to prepare an EIS even if it finds a potentially significant impact so long as it also finds “changes or safeguards in the project sufficiently reduce the impact to a minimum.” Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C.Cir.2008). Mitigation measures must be supported by substantial evidence of some kind. Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 17 (2d Cir.1997); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 734-35 (9th Cir.2001) (Nat’l Parks), abrogated on other grounds by Monsanto v. Geertson Seed Farms, — U.S. -, 130 S.Ct. 2743, 2757, 177 L.Ed.2d 461 (2010). They also must, be imposed by statute or regulation, or submitted as part of the original proposal. Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir.2002). In general, agencies “should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement.” Id. (internal quotation omitted). Hillsdale claims the mitigation agreement here cannot support a finding of no significant impact. First, Hillsdale argues the record contains no studies or papers supporting the effectiveness of the mitigation options in the agreement. But “mitigation measures have been found to be sufficiently supported when based on studies conducted by the agency ... or when they are likely to be adequately policed.” Nat’l Audubon Soc’y, 132 F.3d at 17 (emphasis added); see also Greater Yellowstone Coal., 359 F.3d at 1276; Wyoming Outdoor Council v. U.S. Army Corps of Eng’rs, 351 F.Supp.2d 1232, 1252 (D.Wyo. 2005). Even in the absence of studies supporting the effectiveness of the listed mitigation measures, the Corps did not commit a clear error in judgment by basing its finding of no significant impact on this agreement because the agreement contains mandatory monitoring provisions and is enforceable under Kansas law. Second, Hillsdale claims the monitoring period is too brief because it does not cover construction of the intermodal facility and will expire in two years, whereas business at the intermodal facility is projected to increase for at least twenty years, bringing with it the potential for increased dust emissions. The intermodal facility is projected to handle roughly twice the business in its twentieth year of operation as it will in its first, so it stands to reason fugitive dust emissions will be greater at that time. But the action levels specified in the mitigation agreement are below NAAQS levels. EPA’s worst-case estimates are that dust levels will exceed NAAQS by four to ten times. If dust emissions will be a significant problem at the intermodal facility, they will likely trigger action under the agreement even before the facility is operating at peak capacity. Even if dust levels during the monitoring period do not trigger extension of the agreement, KDHE may continue monitoring air quality near the intermodal facility after the agreement expires. To the extent Hillsdale insinuates KDHE may fail to perform such monitoring if circumstances warrant, or fail to extend the agreement if dust emissions exceed the specified levels, their argument is unpersuasive. KDHE has a legal duty under both the Clean Air Act and Kansas law to protect air quality. 42 U.S.C. § 7410; Kan. Stat. Ann. § 65-3003. We presume KDHE will perform that duty and either extend the mitigation agreement or continue independent monitoring, as necessary. See Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1082 (9th Cir.2010). Hillsdale also does not establish that the Corps’s failure to require fugitive dust monitoring during the intermodal facility’s construction was arbitrary and capricious. Hillsdale points to nothing in the record supporting its claim that fugitive dust emissions during construction will cause a significant impact. The intermodal facility’s construction likely will generate some dust, but the record states fugitive dust emissions primarily occur when “vehicles traveling on paved roads ... cause resuspension of dust accumulated on the roads.” App., Vol. XIV at 4636. The record contains no estimates of vehicle traffic generated by the intermodal facility’s construction. Given Hillsdale’s failure to support its claim that fugitive dust emissions during construction are likely to have a significant impact, this argument is unconvincing. See Morris, 598 F.3d at 691. Finally, Hillsdale contends the agreement is insufficient because although it specifies mitigation measures BNSF must consider, it does not specify measures BNSF must adopt in the event mitigation is necessary. Hillsdale characterizes this as merely a commitment to do “something.” See Davis, 302 F.3d at 1125. But “[a] mitigation plan need not be legally enforceable, funded or even in final form to comply with NEPA’s procedural requirements.” Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.2000) (internal quotations omitted). In Greater Yellowstone Coalition, we upheld a mitigation plan that did not call for specific mitigation measures, other than requiring the applicant not to build within 400 meters of a bald eagle nest. 359 F.3d at 1276. That plan merely called for monitoring eagle activity and unspecified modifications to construction activities if the eagles were disturbed. Id. Hillsdale tries to distinguish Greater Yellowstone Coalition by arguing there was greater uncertainty over how bald eagles would react to construction near their nests than there is over effective strategies to mitigate dust emissions. 359 F.3d at 1276. Hillsdale claims the mitigation plan here is like the one in Davis, which was insufficient to support a finding of no significant impact because it merely listed potential mitigation measures without any supporting data or “any basis for concluding they will occur.” 302 F.3d at 1125. Hillsdale’s reliance on Davis is also misplaced. The plan in that case was insufficient because it made “no firm commitment to any noise mitigation measures.” Id. In other words, there was no “binding obligation to provide the proposed mitigation.” Id. n. 16. In addition, the environmental assessment in Davis actually rejected a number of the proposed mitigation measures as incompatible with the project’s purpose. Id. The plan here, by contrast, is enforceable. Hillsdale argues enforceability is insufficient without data on the measures’ effectiveness, but as we discussed, mandatory monitoring can provide such support. And though the potential sources of fugitive dust emissions might be less uncertain than the reaction of bald eagles to construction near their nests, there is disagreement in the record about whether excessive dust emissions will even occur and, if they do, what their precise source will be. NEPA does not require a finalized mitigation plan so long as the proposed plan is supported or monitored. Okanogan Highlands Alliance, 236 F.3d at 473; Nat’l Audubon Soc’y, 132 F.3d at 17. Flexible mitigation plans are acceptable even when the harm they are designed to avert is more predictable than the behavior of bald eagles. The Corps’s finding of no significant impact based on this plan was not arbitrary and capricious. If dust emissions exceed levels specified in the agreement, the plan requires BNSF to adopt mitigation measures, even if it does not specify which ones. The plan’s mandatory monitoring provisions are designed to ensure BNSF adopts effective mitigation measures if excessive emissions occur. Thus, we affirm the Corps’s finding that there will be no significant impact from fugitive dust emissions at the intermodal facility. F. Other Air Emissions Hillsdale next raises a number of related claims concerning the adequacy of the Corps’s treatment of other potential air emissions attributable to the intermodal facility. Hillsdale contends the Corps failed to take a “hard look” at (1) emissions from off-site locomotives and (2) non-truck vehicles, (3) the cancer risks of diesel exhaust, and (4) emissions from increased traffic along Interstate 35 (1-35). Prairie Band, 684 F.3d at 1016. We address each of Hillsdale’s claims in turn. 1. Off-Site Locomotive Emissions The Corps considered the impacts of on-site locomotive emissions, but did not analyze locomotive emissions attributable to the intermodal facility outside the facility boundaries. Hillsdale claims this was arbitrary and capricious because train traffic will increase due to the intermodal facility, and the environmental assessment states locomotive emissions are a significant source of particulate matter (PM) and nitrous oxide (NOx) emissions. Hillsdale contends increased emissions likely will be significant and should have been analyzed. We disagree. Under NEPA, the Corps’s obligation is to take a “hard look” at information relevant to its factual determination. Forest Guardians, 611 F.3d at 710-11. The record shows the Corps reasonably considered off-site locomotive emissions in the background emissions levels. For its model, the Corps measured background emissions levels at Gardner and other sites and then added them to projected emissions at the intermodal facility, which included emissions from on-site locomotives. The Corps determined total emissions would not exceed applicable NAAQS. The Corps also noted large, EPA-mandated increases in locomotive efficiency over the next 20 years will result in lower locomotive emissions when the intermodal facility begins operations, even taking into account rail traffic growth. Thus it concluded current emissions were a worst-case scenario, and even these did not violate federal emissions limits. Hillsdale contends this entire process was flawed. Hillsdale argues it “defies logic” to consider all off-site emissions part of existing conditions. Aplt. Br. at 39. But the record reflects that locomotive emissions are expected to decrease significantly over the next 20 years, even considering the expected increases in rail traffic. Based on information provided by the EPA, BNSF’s consultant calculated that even if the number of locomotives moving through the intermodal facility increases by 250% between its opening and 2030, the most optimistic scenario in the record, locomotive emissions in the area will still decline. Thus it was not unreasonable for the Corps to conclude existing conditions — which include current locomotive emissions — are a worst-case scenario. The Corps and BNSF then added modeled emissions at the intermodal facility— which included estimates of locomotive emissions — to the background emissions levels. These totals were still below the applicable NAAQS. Thus the Corps concluded locomotive emissions attributable to the intermodal facility — on- or off-site— were unlikely to have a significant impact. This approach was reasonable. Hillsdale also claims the Corps should have quantified what proportion of future rail traffic — and emissions due to that traffic — is attributable to the intermodal facility. Hillsdale argues the agency must consider all direct and indirect impacts of its decision. But an agency must consider only “every significant aspect” of a proposed action. Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (emphasis added). Although some proportion of future rail traffic can logically be attributed to the intermodal facility, this by itself does not establish significance. NEPA regulations direct the Corps to consider both context and intensity when weighing the significance of an impact. 40 C.F.R. § 1508.27. Hillsdale does not argue locomotive emissions attributable to the intermodal facility implicate any of the intensity factors listed in § 1508.27(b). As Hillsdale does not carry its burden of demonstrating these emissions are likely to be significant, it does not establish the Corps erred by failing to quantify them. Nor do the cases Hillsdale cites convince us the Corps erred. Hillsdale insists the Corps is attempting to excuse its analysis on the basis that increases in rail traffic will occur with or without the intermodal facility, an argument we rejected in Davis, 302 F.3d at 1123. This misstates the Corps’s position. The Corps did not conclude locomotive emissions would increase anyway, but that emissions would not increase. This distinguishes this case from Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 867-68 (9th Cir. 2005), where the Corps did not consider the potential environmental effects of increased shipping traffic. Here, the Corps considered those impacts and concluded they would not be significant even if rail traffic increased. In sum, although there will likely be some impact from offsite locomotive emissions attributable to the intermodal facility, the Corps’s conclusion that this impact was unlikely to be significant, and its decision not to quantify this impact, was not arbitrary and capricious. 2. Non-Track Vehicle Emissions The Corps estimated that in the intermodal facility’s first year of operation, it and nearby associated warehouse facilities are likely to generate an average of 2,185 one-way non-truck vehicle trips per weekday. By the fifth year of operation, that number is expected to grow to 9,211 one-way non-truck trips per weekday, primarily due to an increasing number of warehouse facilities. The Corps did not model emissions from non-truck vehicles. Instead, the agency determined automobile traffic in the Gardner area was projected to increase substantially in the next twenty years due to other developments and non-truck traffic attributable to the intermodal facility would be insignificant in comparison. The Corps also noted EPA regulations are expected to decrease automobile emissions significantly over the next twenty years. The Corps then declined to include non-truck vehicle emissions in its air pollution model. Hillsdale contends this was arbitrary and capricious because non-truck vehicle emissions are a significant source of regulated air pollutants, including ozone precursors. Hillsdale points to several comments emphasizing that the Kansas City area, including the county where the Gardner site is located, has recently violated federal ozone standards and is in danger of being designated a nonattainment zone for ozone. Accordingly, Hillsdale argues the Corps should have considered these emissions per 40 C.F.R. § 1508.27(b)(10), which directs the Corps to consider whether a proposed action threatens a violation of federal environmental standards. The Corps decided not to include these emissions in its model, concluding that, based on local land-use plans, traffic will increase substantially in the Gardner area regardless of the intermodal facility. The Corps also found new regulatory requirements will decrease vehicle emissions even as traffic increases. As with locomotives, the Corps claims its background emissions sampling adequately accounted for vehicle emissions because it sampled emissions in areas with much more traffic, including downtown Kansas City and Overland Park, Kansas. The Corps argues traffic near the intermodal facility will not exceed traffic in these areas within the next twenty years. The Corps’s argument that new regulatory requirements will reduce non-truck vehicle emissions over the next 20 years finds little support in the record. In contrast to the detailed evidence discussing future decreases in locomotive emissions, the evidence for future decreases of non-truck emissions is lacking, amounting to little more than a statement that such decreases are likely to occur. And though traffic in the area may increase independently of the intermodal facility, the record specifies the intermodal facility will create some non-truck vehicle traffic. The environmental assessment even quantifies the estimated number of vehicle trips to and from the intermodal facility. Despite this, the Corps’s decision to not analyze non-truck vehicle emissions was not arbitrary and capricious. Traffic attributable to the intermodal facility will be insignificant compared to overall traffic in the area. The record reflects that the intermodal facility will generate 9,211 vehicle trips per day by its fifth year of operation, estimated to be 2015. In contrast, total traffic in only one nearby community — Olathe—is expected -to be over 942,000 vehicle trips per day by 2015. The record also reflects that ozone levels are affected by regional emissions, indicating the proper point of comparison is not a single nearby community or even Johnson County, but the entire Kansas City region. The Corps is only required to consider potential impacts relative to their significance. 40 C.F.R. § 1502.2(b). The small number of non-truck vehicle trips attributable to the intermodal facility is clearly insignificant in comparison to regional traffic. The Corps did not “fail[ ] to consider an important aspect of the problem” when it declined to model non-truck vehicle emissions. New Mexico, 565 F.3d at 704. Its decision to focus its analysis on fugitive dust emissions and emissions from trucks, heavy equipment, and locomotives — anticipated to be the primary sources of air pollution at the intermodal facility — was not arbitrary and capricious. 3. Cancer Risk Methodology As part of its emissions analysis, the Corps considered potential cancer risks associated with a wide variety of pollutants. The Corps did not specifically analyze the cancer risks from diesel exhaust, although its cancer risk analysis considered many of the toxic components of diesel exhaust. Hillsdale complains the Corps’s failure to separately analyze cancer risks from diesel exhaust, particularly diesel particulate matter (DPM), was arbitrary and capricious. “Courts are not in a position to decide the propriety of competing methodologies ... but instead, should determine simply whether the challenged method had a rational basis and took into consideration the relevant factors.” Silverton Snowmobile Club, 433 F.3d at 782 (internal quotation omitted). This is particularly true when the dispute involves a technical judgment within the agency’s area of expertise. Envt’l Defense Fund v. U.S. Nuclear Regulatory Comm’n, 902 F.2d 785, 789 (10th Cir.1990) (internal quotation omitted). We find the Corps adequately analyzed the cancer risks of DPM. Hillsdale claims deference to an agency’s chosen methodology is due only when the impact is agreed upon and the disagreement is over the appropriate methodology to assess its significance. Hillsdale characterizes the disagreement here as over whether DPM poses a cancer risk, not over the methodology to assess that risk. This misstates the Corps’s position. The Corps does not dispute that DPM poses a cancer risk. It notes, as the EPA concluded, that DPM is a likely carcinogen. It merely chose a methodology Hills-dale dislikes to analyze that risk. The crux of Hillsdale’s claim, then, is that the Corps used the wrong methodology. Hillsdale contends the Corps should have employed a DPM-specific methodology, in particular one that has been adopted by the State of California, which the Corps has used in NEPA analyses of California-based projects. The Corps’s prior use of California’s DPM methodology for California projects does not require it to use the same methodology here. An agency has discretion to choose a methodology, so long as it explains why it is reliable. Lands Council v. McNair, 629 F.3d 1070, 1078 (9th Cir. 2010). The Corps can rationally choose to use California’s DPM methodology when conducting NEPA analysis of a California project, and choose to use a different methodology here. Hillsdale is correct that the Corps’s prior DPM assessments were conducted to comply with NEPA, not California law, but they fail to explain why this requires the Corps to use this methodology for every future analysis of DPM emissions. As for the reliability of the Corps’s chosen methodology, Hillsdale argues the methodology is likely to understate the cancer risk at the intermodal facility because the combination of toxic chemicals in DPM likely creates a cancer risk greater than the sum of the risks from individual toxic DPM components. But it points to nothing in the record supporting this assertion, merely to a list of the many toxic compounds in DPM. The Corps’s chosen methodology is entitled to deference. Silverton Snowmobile Club, 433 F.3d at 782; Prairie Band, 684 F.3d at 1017. The Corps considered California’s methodology and determined it was inappropriate. The Corps based this decision on information provided by an expert agency, the EPA, including the EPA’s conclusion that it cannot currently establish an accurate dose-response relationship for DPM exposure and EPA’s concerns with California’s methodology. The Corps instead relied on EPA standards. The EPA signed off on the Corps’s air quality analysis. We conclude the Corps’s methodology had a rational basis and considered the appropriate factors, including the carcinogenic components of DPM. Silverton Snowmobile Club, 433 F.3d at 782; Northwest Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1139 (9th Cir.2006). The Corps did not act arbitrarily and capriciously by utilizing its chosen methodology to assess the cancer risk from DPM and other air pollution attributable to the intermodal facility, rather than a competing methodology proposed by Hillsdale. k. 1-85 Emissions Finally, Hillsdale claims the Corps arbitrarily and capriciously failed to analyze DPM emissions from increased truck traffic on portions of 1-35 near the inter-modal facility. The Corps estimated 81% of the trucks traveling to the intermodal facility will pass by the town of Gardner on 1-35, coming within 122 feet of two residential areas. The Corps forecasts the intermodal facility will generate 3,000 diesel truck trips per day by year five, and 7,600 per day at full capacity. Based on these estimates, Hillsdale argues the inter-modal facility will subject the residential areas abutting 1-35 to elevated DPM emissions. The Corps did not analyze DPM or any other emissions along 1-35. It analyzed emissions only at the intermodal facility and along an access road. Hillsdale claims this failure was arbitrary and capricious. The Corps’s conclusion is sufficiently supported by the record. The Corps’s methodology involved sampling background air quality at numerous stations in the Kansas City area. The Corps then modeled emissions at or near the intermodal facility, including diesel truck emissions, and added these emissions to the background levels. Its model assumed 100% of truck emissions would occur along the access road. The Corps found these emissions were well below NAAQS levels and would quickly disperse. Consequently, the Corps concluded emissions along I-35 would be even lower and would not be significant. We agree. Hillsdale does not challenge the Corps’s conclusion that 100% of truck emissions along the access road does not create a significant impact, and it fails to demonstrate how 81 % of the truck emissions farther from the intermodal facility would be more significant. Nor does Hillsdale argue the background emissions levels along 1-35 are higher than the background emissions levels the Corps used to model emissions closer to the intermodal facility. Instead, Hillsdale mostly repeats its arguments regarding the health risks of DPM, which we addressed previously. Thus the Corps did not “fail[ ] to consider an important aspect of the problem,” and did not violate NEPA, when it declined to model truck emissions along 1-35. New Mexico, 565 F.3d at 704. G. Water Pollution The Gardner site sits in the watershed for Hillsdale Lake, a local reservoir and drinking water source for roughly 30,000 people. Hillsdale Lake does not meet Kansas water quality standards for phosphorus and contains high levels of polycyclic aromatic hydrocarbons (PAHs). The Corps concluded the intermodal facility would not have a significant impact on Hillsdale Lake or local groundwater quality. The Corps relied on a BNSF study of potential impacts to water resources to reach this conclusion. Hillsdale is correct that the environmental assessment and water quality report indicate some potential adverse effects to both Hillsdale Lake and local groundwater. The question is whether the Corps took a hard look at these potential impacts in the environmental assessment and adequately supported its conclusion that they are insignificant. Forest Guardians, 611 F.3d at 710-11. It did. Hillsdale first argues Hillsdale Lake is “ecologically critical” under 40 C.F.R. § 1508.27(b)(3) because it is a drinking water source. Hillsdale contends this required the Corps to prepare an EIS to examine the potential impacts to the lake. It does not support its claim that all drinking water sources are ecologically critical areas under 40 C.F.R. § 1508.27(b)(3), and we fail to see how this factor is implicated. But Hillsdale also argues that because Hillsdale Lake is a drinking water source, 40 C.F.R. § 1508.27(b)(2), which pertains to effects to public health, requires preparation of an EIS. Hillsdale relies heavily on United States v. 27.09 Acres of Land, 760 F.Supp. 345, 353 (S.D.N.Y.1991), which found “the threatened introduction of contaminants into drinking water” required preparation of an EIS even if it was not projected to violate federal drinking water standards. Regardless of which § 1508.27(b) factor is implicated, a project’s potential to affect one of these factors does not require an agency to prepare an EIS. The relevant analysis is the degree to which the proposed action affects this interest, not the fact it is affected. See Nat’l Parks, 241 F.3d at 731. Hillsdale’s attempt to create a per se rule that any potential impact to drinking water, however minor, requires preparation of an EIS is thus unconvincing. Instead, Hillsdale must show the intermodal facility has the potential to significantly impact drinking water to establish the Corps’s failure to prepare an EIS was arbitrary and capricious. It does not. Some passages in the environmental assessment state, for example, that sedimentation may occur during construction or that runoff from the intermodal facility may contain some pollutants and could infiltrate shallow groundwater. But Hills-dale cites nothing establishing that these are “clear and well-documented threats” to local surface and groundwater, as it claims. Aplt. Br. at 55. On the contrary, the record shows the Corps thoroughly considered the intermodal facility’s impacts to both surface and groundwater. The environmental assessment and water quality report acknowledge runoff may occur during construction and operation of the intermodal facility. Because BNSF plans a number of mitigation and water-treatment measures and must obtain a KDHE construction permit with requirements to reduce erosion and runoff, the Corps found adverse impacts during construction will be minor. The Corps’s conclusion is supported by a study of runoff at a similar intermodal facility in Birmingham, Alabama. The study found negligible amounts of phosphorus — the major pollutant of concern at Hillsdale Lake — and suspended solids in the runoff. The only pollutants with elevated levels were oil and grease. Based on this study, the Corps concluded the only likely impacts to surface and ground water at the Gardner intermodal facility will be from oil and grease in runoff, these would be minor, and planned mitigation measures would minimize even this small risk. Hillsdale also argues the Corps should have prepared an EIS to examine groundwater impacts because BNSF’s water quality report acknowledged a potential for contaminated runoff to infiltrate groundwater. As with surface water impacts, the Corps found “there is potential for some contaminated water to infiltrate to shallow groundwater.” App. Vol. XV at 4827. But the Corps also concluded groundwater risks are minimal for several reasons: the project area will mostly be paved or impervious, there will be no underground storage tanks onsite, and the project area consists of clay soil, which has low hydraulic conductivity. Any groundwater contamination also would be limited to groundwater at the facility, which is unlikely to be used for drinking water. Hillsdale again points to 40 C.F.R. § 1508.27(b)(2), effects to public health, claiming there are numerous drinking water wells near the Gardner site and the impact to those wells should have been examined. But Hillsdale identifies only one comment from a landowner with a well who resides over a mile from the Gardner site. Hillsdale also fails to undermine the Corps’s conclusion that groundwater impacts will be minimal and localized. Hillsdale fails to carry its burden. The Corps’s decision is entitled to a presumption of regularity, and it finds support in the record. Accordingly, we affirm the Corps’s conclusion that water impacts from the intermodal facility are insignificant. II. The Controversial Nature of the Intermodal Facility The Corps’s CWA regulations require it to gauge the intensity of environmental impacts, including the extent to which these impacts are controversial, in assessing the significance of a proposal. 40 C.F.R. § 1508.27(b)(4). Hillsdale claims the intermodal facility project is highly controversial, and the Corps should have prepared an EIS on account of this controversy. See Natl Parks, 241 F.3d at 736-37; Public Citizen v. Dept. of Transp., 316 F.3d 1002, 1024 (9th Cir.2003), rev’d on other grounds by Dept, of Transp, v. Pub. Citizen, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). But Hillsdale overstates the importance of this factor. Controversy is only one of ten factors the Corps must consider when deciding whether to prepare an EIS. 40 C.F.R. § 1508.27(b)(4). Controversy in this context does not mean opposition to a project, but rather “a substantial dispute as to the size, nature, or effect of the action.” Middle Rio Grande, 294 F.3d at 1229. In addition, “controversy is not decisive but is merely to be weighed in deciding what documents to prepare.” Town of Marshfield v. FAA, 552 F.3d 1, 5 (1st Cir.2008). So even if a project is controversial, this does not mean the Corps must prepare an EIS, although it would weigh in favor of an EIS. As support for their argument that the intermodal facility is controversial within the meaning of 40 C.F.R. § 1508.27(b)(4), Hillsdale claims 90% of the comments to the Corps’s environmental assessment either disapproved of the project or asked the Corps to prepare an EIS. See Nat’l Parks, 241 F.3d at 736-37 (finding an “outpouring of public protest” when 85% of comments objected to the agency’s chosen alternative). This argument is without merit. When analyzing whether a proposal is controversial, we consider the substance of the comments, not the number for or against the project. Even if 90% of the comments to the environmental assessment were negative, this merely demonstrates public opposition, not a substantial dispute about the “size, nature, or effect” of the intermodal facility. Middle Rio Grande, 294 F.3d at 1229. National Parks, which Hillsdale cites, found controversy not because of the high number of negative comments but because those comments “cast substantial doubt on the adequacy of the [agency’s] methodology and data.” 241 F.3d at 736-37. The comments here do not cast substantial doubt on the agency’s methodology and data. Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps’s analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the inter-modal facility’s impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite “hard look” at every one of these issues, which is all NEPA requires. Forest Guardians, 611 F.3d at 711. Hillsdale cannot overcome its failure on the merits simply by pointing to comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C.Cir.2003); see also Bering Strait Citizens v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 957 (9th Cir.2008). An additional point in the Corps’s favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps’s analysis. Although not dispositive, this is additional evidence of a lack of controversy. See Nw. Envtl. Advocates, 460 F.3d at 1139; Nat’l Wildlife Fed’n v. Norton, 332 F.Supp.2d 170, 185 (D.D.C.2004); cf. Friends of the Earth v. U.S. Army Corps of Eng’rs, 109 F.Supp.2d 30, 43 (D.D.C.2000) (finding controversy where “three federal agencies and one state agency have all disputed the Corps evaluation ... and pleaded with the Corps to prepare an EIS”). In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps’s decision not to prepare an EIS was arbitrary and capricious in light of this controversy. III. Conclusion Having considered the record and the parties’ arguments, we AFFIRM the decision of the district court and uphold the Corps’s issuance of a § 404 permit. . An intermodal facility is a facility where a railroad transfers cargo between trains and other forms of transportation, usually trucks. . Wellsville North was 34 miles from the Argentine Yard, but the Corps concluded it met BNSF’s other criteria and was close enough to the Argentine Yard to warrant a closer look. . Hillsdale Environmental Loss Prevention and the Natural Resources Defense Council each filed separate complaints, but the cases were consolidated. . A “special aquatic site" is a geographic area protected by the CWA. 40 C.F.R. § 230.3(q-1). Wetlands are classified as special aquatic sites. 40 C.F.R. § 230.41. . These cases involved challenges to a NEPA analysis, rather than a CWA analysis. But we see no principled reason why' an agency should be forced to analyze the environmental consequences of impracticable alternatives in either context. . Hillsdale’s citation to Utahns does not support its position, as the portion of the opinion it quotes is a discussion of the appellant’s argument, not the court’s holding. See 305 F.3d at 1.186 (citing Aplt. Br. at 22). . The Le Loup and Ottawa sites met all of BNSF's site-selection criteria save for their distance from the Argentine Yard. These two sites were both more distant than Wellsville North — 40.2 and 44 miles, respectively. . One of the applicant’s criteria in Greater Yellowstone Coalition was that the proposed housing development be small enough to avoid compromising the viability of his working ranch. 359 F.3d at 1271. . As for BNSF’s other site-selection criteria, Hillsdale does not explain why they are flawed or why the Corps’s acceptance of them was arbitrary and capricious. Thus it does not carry its burden with respect to these criteria. Morris, 598 F.3d at 691. . The agreement requires mitigation if PM2.5 concentrations exceed 30 |xg/m3, while the NAAQS for PM2£ is 35 |xg/m3. PM10 concentrations over 100 |xg/m3 trigger mitigation, while the NAAQS for PM10 is 150 |xg/m3. . PM and NOx are both criteria pollutants regulated under the Clean Air Act. 42 U.S.C. § 7408. . Based on these efficiency regulations, the EPA projects that, even assuming a 50% increase in rail traffic between 2010 and 2030, nationwide NOx emissions from locomotives will decrease by roughly 66%, and PM emissions will decrease by about 80%. This means emissions from individual locomotives will decrease by at least a factor of three. The Corps was required to consider the likely impact of these regulations. Wyoming v. U.S. Dept. of Agriculture, 661 F.3d 1209, 1251 (10th Cir.2011). . BNSF makes this argument, but it does not accurately reflect the Corps’s conclusions in the environmental assessment. . The Corps responds that Hillsdale did not raise this issue in its comments to the draft environmental assessment, depriving it of its opportunity to respond on the record. The Corps therefore argues we should not consider this argument because Hillsdale did not exhaust its administrative remedies. Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1261 (10th Cir.2011). Hillsdale did not raise this claim, but several other comments discussed Kansas City's ozone problems, including two comments that mention concerns with non-truck emissions. Claims not raised before an agency are not waived if they are "obvious, or otherwise brought to the agency’s attention.” Id. at 1262 (internal quotation omitted). These comments make it clear that concerns about non-truck emissions were otherwise brought to the agency’s attention, and so this claim is not waived. . The chemicals considered in the Corps’s analysis include acetaldehyde, benzene, 1, 3-butadiene, formaldehyde, and particulate matter. These are the major toxic DPM components Hillsdale identifies. The record also reflects that DPM can contain trace amounts of various heavy metals, as well as small amounts of dioxins, although it notes diesel engines “are a minor contributor to overall dioxin emissions.” App. Vol. XII at 3968. . The record states many sample stations were in areas more developed than Gardner, although it does not quantify this disparity. . The Corps constructed Hillsdale Lake and continues to operate the reservoir. . Hillsdale cites to one other comment, from an environmental group, but this comment merely states there are many drinking wells in the area without specifying their number or location.

Board of Mississippi Levee Commissioners v. United States Environmental Protection Agency

HAYNES, Circuit Judge: The Board of Mississippi Levee Commissioners (the “Board”) appeals the district court’s decision granting summary judgment to the Environmental Protection Agency (“EPA”), Lisa P. Jackson, Nancy Stoner, the Mississippi Wildlife Federation, Sierra Club, Environmental Defense Fund, Gulf Restoration Network, and American Rivers (collectively, “Appellees”), on the Board’s claim that the EPA improperly exercised its power to veto a plan to reduce flooding in Mississippi, called the Yazoo Backwater Area Pumps Project (the “Pumps Project” or “Project”). Specifically, the Board claims that the EPA was barred from vetoing the Project under section 404(r) of the Clean Water Act (the ‘Water Act”), 33 U.S.C. § 1344(r). The Board contends that because all of the requirements of section 404(r) were met, the EPA could not have lawfully vetoed the Project. In response — and for the first time on appeal— the EPA claims that the Board does not have prudential standing to contest the EPA’s decision. Additionally, the Board moved to supplement the record on appeal or, in the alternative, for this court to take judicial notice of a Fish and Wildlife Mitigation Report that was not before the district court. As an initial matter, we DENY the Board’s motion to supplement the record on appeal or, in the alternative, for judicial notice. In addition, we conclude that the EPA waived its argument that the Board does not have prudential standing under the Administrative Procedure Act (“APA”). We AFFIRM the district court’s decision upholding the EPA’s veto, as the record does not contain sufficient evidence to overturn the EPA’s findings. I. BACKGROUND AND PROCEDURAL HISTORY To adequately understand this dispute, it is necessary to provide a brief overview of the complex statutory framework, as well as a history of Congress’s legislation related to the Pumps Project. A. Overview of the Water Act and the National Environmental Policy Act (the “Environmental Act”) 1. Water Act Congress enacted the Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this purpose, Congress made “the discharge of any pollutant by any person ... unlawful,” 33 U.S.C. § 1311(a), unless the discharge complies with section 404 of the Water Act. Under section 404, the Corps must generally issue a permit before any such discharge occurs, see 33 U.S.C. § 1344(a); however, when the Corps is the sponsor of the project, it need not issue itself a permit, but it must comply with section 404(b)(1). See 33 U.S.C. § 1344(b)(1); 33 C.F.R. § 336.1. Section 404(b)(1) of the Water Act requires the Secretary of the Corps to apply guidelines developed jointly by the EPA and the Corps. 33 U.S.C. § 1344(b)(1). Section 404(r) was added in 1977, and it provides that the discharge of dredged or fill material is not subject to certain provisions of the Water Act—including the requirements imposed by section 404—if: information on the effects of such discharge, including consideration of the guidelines developed under subsection (b)(1) of this section [404] is included in an environmental impact statement for such project pursuant to the National Environmental Policy Act of 1969 and such environmental impact statement has been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction. 33 U.S.C. § 1344(r). The purpose of this subsection was to prevent an executive agency from nullifying a project that was specifically authorized by Congress, “in recognition of the constitutional principle of separation of powers.” Monongahela Power Co. v. Marsh, 809 F.2d 41, 51 n. 92 (D.C.Cir.1987). 2. Environmental Act As noted above, to satisfy section 404(r), the environmental impact statement (“EIS”) that is transmitted to Congress must comply with the Environmental Act. 33 U.S.C. § 1344(r). The Environmental Act requires that when an agency proposes a “major Federal action[] significantly affecting the quality of the human environment,” the agency must prepare an EIS that documents the environmental impact of the proposed action and provides other alternatives as a comparison. 42 U.S.C. § 4332(2)(C). The EIS must include an analysis of: (1) “the environmental impact of the proposed action”; (2) “any adverse environmental effects which cannot be avoided should the proposal be implemented”; (3) alternatives to the proposed action; (4) “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity”; and (5) “any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” Id. § 4332(2)(C)(i)-(v). The Council on Environmental Quality, which has been given authority to promulgate regulations applicable to the federal agencies, has set out the process for preparing an EIS. The regulations provide that an EIS is prepared in two stages: draft and final. See 40 C.F.R. § 1502.9. Both the draft and final versions of the EIS must be circulated to other federal agencies which have jurisdiction or special expertise in the area; federal, state, or local agencies “authorized to develop and enforce environmental standards”; any individual who requests a copy of the EIS; and, in the case of a final EIS, anyone who submitted comments on the draft. Id. § 1502.19(a), (c), (d). The agency must also respond to all substantive comments, id. § 1503.4(a), and prepare a Record of Decision at the time of its decision, id. § 1505.2. B. Legislation Related to the Pumps Project Congress has enacted several statutes designed to help control flooding from the Mississippi River. Congress passed the Flood Control Act of 1928, which authorized a system of levees to help control flooding from the Mississippi River. See Flood Control Act of 1928, 45 Stat. 534, 33 U.S.C. § 701 et seq. In 1941, the Mississippi River Commission presented a report recommending that the Yazoo Backwater Area be protected from flooding by extending a levee along the west bank of the Yazoo River. Flood Control on the Lower Mississippi River, H.R. Doc. No. 77-359, at 38 (1941). However, the report concluded that because extending the levees would cause drainage problems along the Sunflower River, additional steps would have to be taken to protect this area. Id. It proposed three plans, see id. at 39-41, but Congress authorized “Plan C” set out by the Mississippi River Commission. Flood Control Act of 1941, Pub.L. No. 77-288, 55 Stat. 638. Plan C “assume[d] that pumps of about 14,000 cubic feet per second capacity would be provided to prevent the sump level from exceeding 90 feet, mean Gulf level....” Flood Control on the Lower Mississippi River, supra, at 38. C. Timeline of Agency Efforts Related to the Pumps Project Activity did not begin on the Project until the late 1950’s due to World War II and the Korean War. The Corps reevaluated Plan C in 1959 and concluded that a pumping plant was no longer needed. In 1978, the Corps again reevaluated the Project and proposed modifying Plan C to drain acreage below 80 feet (instead of 90 feet, as Congress authorized in 1941). Four years later, it issued a Reevaluation Report, in which it recommended that the sump level not exceed 80 feet and proposed installation of a “17,500-cubic-feet-per-second pumping station----” U.S. Army Corps of Engineers, Yazoo Area Pump Project, Reevaluation Report — Environmental Impact Statement (July 1982). The Reevaluation Report purported to contain a “final” EIS. Together with the 1982 Reevaluation Report, the Corps also published a Post-Authorization Change Report, which was written to determine if the Corps needed Congress’s authorization in order to implement the changes made in the 1982 Reevaluation Report/EIS. The Post-Authorization Change Report stated that “[t]he recommended plan will provide flood protection to those additional lands which have been converted to agricultural production since initial authorization.” U.S. Army Corps of Engineers, Yazoo Area Pump Project Post Authorization Change Notification Report (July 1982, revised November 1982). Major General John Wall of the Corps delegated authority to the Mississippi River Commission to file the EIS in this case on February 2, 1983. The Corps also prepared a Fish and Wildlife Mitigation Report concerning the Project to comply with the Fish and Wildlife Coordination Act of 1958. This report, along with a “Final Environmental Impact Statement with addendum” and the “Project Reevaluation Report” were circulated with a request for comments on March 28, 1983. Also on March 28, 1983, a member of the Corps sent two identical letters to Representative James J. Howard, Chairman of the Committee on Public Works and Transportation, and Senator Robert T. Stafford, Chairman of the Committee on Environment and Public Works, which read as follows: A copy of the proposed report of the Chief of Engineers on Yazoo Backwater Project, Mississippi — Fish and Wildlife Mitigation Report, and other pertinent reports and a Final Environmental Impact Statement, with addendum, are enclosed for your information.... Upon receipt of comments on the proposed report and environmental statement from the States of Mississippi and Louisiana and appropriate federal agencies, the Chief of Engineers will forward his final report to the Secretary of the Army. Letter from James W. Ray, Colonel, Corps of Engineers, to Hon. James J. Howard, Chairman, Committee on Public Works and Transportation, U.S. House of Representatives (Mar. 28, 1983) [hereinafter “Howard Letter”]; Letter from James W. Ray, Colonel, Army Corps of Engineers, to Hon. Robert T. Stafford, Chairman, Committee on Environment and Public Works, U.S. Senate (Mar. 28, 1983) [hereinafter “Stafford Letter”]. Both parties agree that the attachments to the letters are not in the administrative record. On July 7, 1983 — several months after the letters to the congressmen were sent— the Mississippi River Commission signed a Record of Decision approving the 1982 Reevaluation Report, which included the EIS. A member of the Corps sent the Record of Decision to various state and federal agencies and officials. Additionally, as the letters promise, the Chief of Engineers transmitted his final report on the Mitigation Plan to the Secretary of the Army “for transmission to Congress” on July 12, 1984. Because of the nature of the mitigation plan, which included a recommendation that the government purchase 6,500 acres of land to “mitigate” the impact of the Project, it was apparently determined that congressional approval would be necessary. Congress authorized the Mitigation Plan in the Water Resources Development Act of 1986, Pub.L. No. 99-662, 100 Stat. 4082. However, there is no evidence that a similar transmission occurred with respect to the “final” EIS. After the Record of Decision was signed by the Mississippi River Commission, construction on the Project began in 1986. Construction was soon halted by passage of the Water Resources Development Act of 1986, § 103(e)(1), Pub.L. No. 99-662, 100 Stat. 4082, which required the local project sponsors to share in the costs of construction. Construction effectively ceased until the cost sharing provision was reversed in 1996, restoring the project to being fully funded by the federal government. Between 1998 and 2000, the EPA focused on attempting to reduce the environmental impact of the Project. In 2000, because a significant time had elapsed since the previous environmental study, the Corps determined that it must update its analysis of the environmental impact of the Project pursuant to the Environmental Act. The Corps developed a Draft Reformulation Report and a supplemental EIS in 2000, which proposed revising the Project (again) to revert to a 14,000 cubic-feet-per-second pumping station that would drain acreage below 87 feet. Between 2002 and 2005, the EPA worked with the Corps to try to reduce the impact of the Project on the environment. The EPA remained opposed to the Project when the Reformulation Report and the supplemental EIS were released as final in November 2007. On February 1, 2008, the EPA’s Region IV Administrator informed the Corps and the Board of its intent to review the Project pursuant to section 404(c) of the Water Act. After meeting with the Corps, the Board, and the Fish and Wildlife Service on February 29, 2008, the EPA published a proposed determination in the Federal Register. See Proposed Determination To Prohibit, Restrict, or Deny the Specification, or the Use for Specification, of an Area as a Disposal Site; Yazoo River Basin, Issaquena County, 73 Fed.Reg. 14806 (Mar. 19, 2008). A public comment period was held from March 19 to May 5, 2008, and the EPA held a hearing on April 17, 2008. During this time, Senator Thad Cochran of Mississippi and Mississippi Governor Haley Barbour urged the EPA to stop the 404(c) process. After the public comment period, the EPA’s Regional Administrator signed the Recommended Determination, which initiated a period of review and final action by the EPA. Both the Board and the Corps commented on the EPA’s Recommended Determination, as did Representative James Oberstar (who was concerned about the environmental impact of the Project), and Senators Thad Cochran and Roger Wicker (who argued that the EPA had no authority to veto the Project pursuant to section 404(r) and provided an analysis of section 404(r) done by the Congressional Research Service). The Fish and Wildlife Service supported the EPA’s Recommended Determination. Based on the comments received and its own conclusions regarding the adverse environmental impacts of the Project, the EPA formally vetoed the Project in August 2008. See Final Determination of the U.S. Environmental Protection Agency’s Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Proposed Yazoo Backwater Area Pumps Project, Issaquena County, Mississippi (Aug. 31, 2008), available at http:// water.epa.gov/lawsregs/guidance/cwa/ dredgdis/upload/2008_09_02_wetlands_ Yazoo_Final_Determination_Signed_8-3108.pdf [hereinafter “Final Determination”]. In the Final Determination, the EPA set out its reasoning as to why it viewed section 404(r) as inapplicable. Specifically, it found that the “EPA has no evidence that an EIS for the proposed project was ever submitted to Congress, let alone before the actual discharge of dredged or fill material in connection with the construction of the project occurred, and prior to either authorization of the project or an appropriation of funds for construction.” Id. at 16. Additionally, the EPA noted that even if the Final EIS had been submitted to Congress, the information and analysis it contained were not adequate to satisfy section 404(r). The purpose of providing the EIS to Congress is to ensure that Congress has the full information on the environmental impacts of the project before making a decision whether or not to authorize the project or to appropriate funds for its construction. EPA’s comments on both the 1982 Draft EIS as well as the Final EIS note the deficiencies in [Environmental Act] documentation.... Id. at 18-19. Thus, for this and other reasons, the EPA formally decided that section 404(r) did not apply to the Project, and therefore concluded that it had veto authority under section 404(c). The Board filed suit against the EPA on August 11, 2009, alleging that the EPA did not have authority to veto the Project pursuant to section 404(r). Both parties filed motions for summary judgment below. Both parties rely on the documents in the administrative record. Based on these documents, the district court granted summary judgment to the EPA, concluding that the EPA’s veto was not unlawful because the record did not contain evidence that the EIS for the Pumps Project was submitted to Congress. The district court entered a final judgment for the EPA on March 28, 2011, and the Board timely appealed. II. STANDARD OF REVIEW AND JURISDICTION We review a grant of summary judgment de novo, applying the same standard as the district court. Gen. Universal Sys. v. HAL Inc., 500 F.3d 444, 448 (5th Cir.2007). Under the APA, a federal court may only overturn an agency’s ruling “if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole.” Buffalo Marine Servs. v. United States, 663 F.3d 750, 753 (5th Cir.2011) (internal quotation marks and citation omitted). We must start from “ ‘a presumption that the agency’s decision is valid, and the plaintiff has the burden to overcome that presumption by showing that the decision was erroneous.’ ” Id. (quoting Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir.2010)). The agency’s factual findings are reviewed only to determine if they are supported by substantial evidence, and the agency’s legal determinations are reviewed de novo. Id. (citing Alwan v. Ashcroft, 388 F.3d 507, 510-11 (5th Cir.2004)). With respect to questions of statutory interpretation, we owe “substantial deference to an agency’s construction of a statute that it administers.” Id. at 753-54 (internal quotation marks and citation omitted). We must be “ ‘highly deferential to the administrative agency whose final decision is being reviewed.’ ” Id. at 754 (quoting Tex. Clinical Labs, Inc., 612 F.3d at 775). The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 5 U.S.C. §§ 702 and 704 (jurisdiction under the APA). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. III. DISCUSSION A. Whether the Board has prudential standing to claim that the EPA improperly vetoed the Pumps Project because the Project was exempt under section 404(r) of the Water Act. In its appellate brief, the EPA raises — for the first time on appeal — the question of whether the Board has prudential standing to challenge the EPA’s decision to veto the Project. It argues that the Board seeks to assert the legal rights of the Corps, and the Board has no legal right to have the Project completed. The Board argues that the EPA waived its prudential standing argument, as it failed to raise it before the district court. Unlike constitutional standing, prudential standing arguments may be waived. See, e.g., Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th Cir.1999) (finding a prudential standing argument waived). Although the EPA correctly points out that we have previously considered the issue sua sponte, see Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491, 498 (5th Cir.2004), we decline to do so here. Because the EPA failed to make this argument to the district court, we hold that the EPA waived its prudential standing challenge. B. Whether the statutory requirements of section kOhM were met, such that section U0k(r) bars exercise of the EPA’s authority to veto the Project. The following requirements must be met under section 404(r): (1) the project at issue must be specifically authorized by Congress; (2) an EIS that satisfies the Environmental Act and section 404(b)(1) must be submitted to Congress; and (3) the EIS must be “submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction.” 33 U.S.C. § 1344(r). At the administrative level, the EPA made a factual finding that it possessed “no evidence that an EIS for the proposed project was ever submitted to Congress....” Final Determination, supra, at 16. We review the EPA’s finding only to ensure that it is “supported by substantial evidence.” Buffalo Marine Servs., 663 F.3d at 753. The Board argues that all three conditions were met and, thus, the EPA unlawfully vetoed the Project. We conclude that the Board failed to show that an EIS that satisfied the Environmental Act and section 404(b)(1) of the Water Act was submitted to Congress. Therefore, we find it unnecessary to address the Board’s remaining arguments related to section 404(r). To overcome the presumption that the EPA’s factual finding should be upheld, the Board argues that the 1983 letters to Representative James J. Howard and Senator Robert T. Stafford are evidence that the EIS for the Project was “submitted to Congress.” However, the EIS that was allegedly submitted to Representative James J. Howard and Senator Robert T. Stafford as an attachment to the letters does not exist in the administrative record. The letters do not specify that the “final EIS” relates to the Project, and although it would be reasonable to infer that the EIS to which the letters referred related to the Project, it is also plausible that it did not. These two ambiguous letters, without further evidence that the EIS prepared for the Project was transmitted to Congress, are insufficient to show that the EPA’s decision that section 404(r) does not apply is erroneous. See Buffalo Marine Servs., 663 F.3d at 753. Additionally, even if we were to find that the letters showed that the EIS for the Project was included as an attachment, there is no evidence in the record to show that the EIS complied with guidelines developed pursuant to section 404(b)(1) of the Water Act or with the Environmental Act. The district court concluded, and we agree, that it is unlikely that the “final EIS” mentioned in the letters — even if it was the EIS related to the Project — was actually “final” under the regulations. Certainly it is not so likely that we must overturn the EPA’s contrary finding. The regulations provide that an agency that prepares an EIS must file the EIS and comments and responses with the EPA. 40 C.F.R. § 1506.9. It must also circulate the draft and final EIS to federal agencies that have jurisdiction with respect to any environmental impact involved; other federal, state or local agencies “authorized to develop and enforce environmental standards”; “[a]ny person, organization, or agency requesting the entire environmental impact statement”; and “any person, organization, or agency which submitted substantive comments on the draft,” that may submit comments. Id. § 1502.19. The agency must then address comments received on the draft EIS in the final EIS. Id. § 1503.4. The regulations also require that the agency prepare a Record of Decision stating the agency’s decision and discussing the agency’s consideration of alternatives. Id. § 1505.2. The Record of Decision may not be issued until at least 30 days after publication of a notice that the final EIS is available. Id. § 1506.10(b)(2). The Board vehemently disagrees that an EIS is not “finalized” until after comments on the final EIS are received and until the Record of Decision is signed. It argues that the Record of Decision “determines what the decisionmaker will do based on the finalized EIS.” However, it cites to a letter sent in July 1983 — several months after the letters on which the Board relies — from the Mississippi River Commission to the EPA stating that the Record of Decision was forwarded “[t]o complete procedural compliance with the National Environmental Policy Act following final review of the Final Environmental Impact Statement for the Yazoo Area Pump Project.” Letter from Joseph Yore, Secretary, Mississippi River Commission, to Paul Cahill, Director, Office of Federal Activities of the EPA (July 18, 1983). Contrary to the Board’s argument, this letter supports the district court’s conclusion and the EPA’s argument that a Record of Decision is required to finalize an EIS under the Environmental Act. Additionally, the 1983 version of the regulation related to the Record of Decision provided that the “Record of Decision will be completed to document the Corps [sic] final decision or recommendation to Congress on a proposed action requiring an EIS.” 33 C.F.R. § 230.12 (1983); see also 40 C.F.R. 1505.2 (noting that “[a]t the time of its decision (§ 1506.10) or, if appropriate, its recommendation to Congress, each agency shall prepare a concise public record of decision” (emphasis added)). This regulation indicates that the agencies believed that a Record of Decision was necessary when providing a “recommendation to Congress on a proposed action requiring an EIS.” 33 C.F.R. § 230.12. Although the letters were dated March 28, 1983, the EPA did not submit comments on the final EIS until May 1983, and it did not issue a Record of Decision until July 1983. These facts support a finding that although the EIS existed in March 1983 and was called a “final EIS,” that EIS did not comply with the regulations issued pursuant to the Environmental Act, as required by section 404(r), until the Record of Decision was signed in July 1983. The Board admits that “the Corps’ then-current [Environmental Act] Procedures provided that the Corps headquarters or the district engineer must respond to comments on final EISs [sic] (such as EPA’s May, 1983 comments ...)[.]” Indeed, the letters relied upon by the Board expressly state that the environmental review process was still underway, noting that “[u]pon receipt of comments on the proposed report and environmental statement from the States of Mississippi and Louisiana and appropriate federal agencies, the Chief of Engineers will forward his final report to the Secretary of the Army.” Howard Letter, supra; Stafford Letter, supra. Based on the regulations and the EPA’s interpretation of them, which is entitled to deference, see Talk America, Inc. v. Mich. Bell Tel. Co., — U.S. -, 131 S.Ct. 2254, 2261, 180 L.Ed.2d 96 (2011), we conclude that even if an EIS related to the Project was sent to Congress in March 1983, the EPA’s conclusion that it was not “final” should not be set aside as no Record of Decision had been signed until after the letters were sent. Further, as discussed above, the letters themselves indicate that the EIS was not final at the time it was allegedly transmitted. Additionally, the Corps — the agency that was responsible for sending the letters in March 1983 — indicated that it did not intend to seek an exemption pursuant to section 404(r) for the Project. See Letter from John Paul Woodley, Jr., Assistant Secretary of the Army, to Hon. Thad Cochran, U.S. Senate (Feb. 10, 2009). This conclusion is supported by the fact that the Corps sought and obtained a water quality certification from the State of Mississippi. Had the Corps intended to seek an exemption under section 404(r), it would have also been exempt from the requirement of obtaining a state water quality certificate pursuant to section 401 of the Water Act. See 33 U.S.C. § 1344(r). The record contains a document from the Corps’ Vicksburg District detailing its Standard Operating Procedures. See U.S. Army Corps of Engineers, Water Resource Policies and Authorities: Application of Federal Regulations Implementing Section 404 to Civil Works Projects (Sept. 18, 1979). This document sets out three options for the Corps to meet its obligations under section 404: (1) seek an exemption pursuant to section 404(r) as part of the authorization process; (2) obtain a state water quality certification pursuant to section 401; or (3) seek an exemption under section 404(r) after authorization by submitting an EIS to Congress. The record demonstrates that the Corps pursued the second option, as it sought a state water quality certification under section 401. Additionally, after the Corps revised the Project in 2007, it again sought a state water quality certification. The Corps’ interpretation of section 404 shows that it would either have to seek an exemption under 404(r) or comply with section 401. The fact that it instead sought a state water quality certification indicates that the Corps did not believe that section 404(r) applied. Additionally, this document demonstrates that the Corps was aware of the process for seeking a section 404(r) exemption and that, had it intended to do so, it would have followed the Standard Operating Procedures. Because the administrative record fails to show that an EIS that satisfied the Environmental Act and section 404(b)(1) was submitted to Congress, we find it unnecessary to address the remaining requirements of section 404(r). For the foregoing reasons, we affirm the district court’s decision to grant summary judgment to the EPA. AFFIRMED; MOTIONS DENIED. . Both sides also present non-legal arguments as to why their position is correct. The Appellees argue that the Project will be devastating to the environment, and the Board argues that without the Project, flooding will continue to devastate the area. Congress, not this court, is the best place to resolve these policy disputes. . The sump level is the level above which water would not be allowed to rise in the event of a flood. In this case, the pump would be activated when the water rose above 90 feet, mean Gulf level. . Although the EIS is described as "final,” the parties heavily dispute whether this EIS was actually "final” pursuant to the Environmental Act. . The Board seeks to supplement the appellate record or have us take judicial notice of the Fish and Wildlife Mitigation Report. We have generally declined to supplement the appellate record with materials not presented to the district court, though we have the discretion to do so. Gibson v. Blackburn, 744 F.2d 403, 405 n. 3 (5th Cir.1984). Here, we conclude that consideration of the Mitigation Report is unnecessary to resolve the issues on appeal, and allowing supplementation would only serve to further undermine the general rule that a party may not add documents to the record that were not presented to the district court. Id. at 405 n. 3. Similarly, we decline to take judicial notice of this report, sis we have previously determined that a party may not avoid the rule against supplementing the record with a document not before the district court by requesting that the appellate court take judicial notice of the document. See United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir.1995) (noting that requests for the Court to take judicial notice of evidence not presented to the district court '‘constitute[] an impermissible attempt to supplement the record on appeal”); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir.1981) (refusing to take judicial notice after rejecting an attempt to supplement the record on appeal). . Other than this citation to the 1983 version of the Code of Federal Regulations, all other citations to the regulations are to the current version.

Butte Environmental Council v. United States Army Corps of Engineers

ORDER AND AMENDED OPINION O’SCANNLAIN, Circuit Judge: ORDER The opinion filed in this case on June 1, 2010, and reported at 607 F.3d 570, is hereby amended. An amended opinion is filed concurrently with this order. No petitions for rehearing or for rehearing en banc shall be entertained. OPINION We must decide whether the decisions of two federal agencies approving the construction of a business park on protected wetlands in California were arbitrary and capricious. I A We begin by setting forth the relevant framework of the two federal statutes at the center of this appeal: the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. 1 Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). “Under §§ 301 and 502 of the Act, 33 U.S.C. §§ 1311 and 1362, any discharge of dredged or fill materials into ‘navigable waters’ — defined as the ‘waters of the United States’ — is forbidden unless authorized by a permit issued by the [U.S. Army] Corps of Engineers pursuant to § 404, 33 U.S.C. § 1344.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Supreme Court has upheld as reasonable the Corps’ interpretation of the CWA “to require permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States.’ ” Id. at 139, 106 S.Ct. 455; see also Rapanos v. United States, 547 U.S. 715, 742, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion) {“[OJnly those wetlands with a continuous surface connection to bodies that are “waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”). The Corps may issue a permit pursuant to section 404 of the CWA only if conditions set forth in regulations developed by the Corps and the Environmental Protection Agency (“EPA”) are met. See 33 U.S.C. § 1344(b). These implementing regulations provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). Under the regulations, “[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). If a proposed activity “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not ‘water dependent’), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.” Id. § 230.10(a)(3). 2 The ESA directs the Secretaries of Commerce and the Interior to determine whether any species is “endangered” or “threatened,” 16 U.S.C. § 1533(a)(1), and to “designate any habitat of such species which is ... considered to be critical habitat,” id. § 1533(a)(3)(A)®. Under the ESA, a species’ “critical habitat” includes areas occupied by the species that are “essential to the conservation of the species” and that “may require special management considerations or protection.” Id. § 1532(5)(A)(i). It also includes areas not occupied by the species that are nonetheless essential to the species’ conservation. Id. § 1532(5)(A)(ii). “Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Section 7(a)(2) provides specifically that: Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], 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 by the Secretary ... to be critical.... 16 U.S.C. § 1536(a)(2). The ESA requires the Secretary to provide at the conclusion of consultation “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.” Id. § 1536(b)(3)(A); see 50 C.F.R. § 402.14(h). B With the relevant statutory and regulatory framework in mind, we turn now to the facts of this case. 1 a After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on wetlands along Stillwater Creek, and started to draft an environmental impact statement (“EIS”). The proposed site contains critical habitat for several ESA-listed species under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. These ESA-listed species occupy the site’s vernal pools- — -shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring. Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 70 Fed.Reg. 46,924, 46,925 (Aug. 11, 2005). Them critical habitat also consists of unoccupied upland areas that serve as important sources of nutrients in the vernal pool ecosystem. Id. With an eye to satisfying the conditions of both the CWA and the ESA, the City issued a draft EIS regarding the proposed development of the so-called Stillwater Business Park in February 2005. The draft EIS served as a precursor to the City’s eventual application for a section 404 permit, which the City was required to obtain because the proposed development would entail the discharge of dredged or fill material into protected wetlands. The document also served to address the effects of the proposed development on ESA-listed species, which the City was required to protect because the project would involve the expenditure of federal grant money. Based on a comparison of over a dozen potential sites, the draft EIS concluded that the Stillwater site was the least environmentally damaging practicable alternative. In support of this conclusion, the draft EIS explained that the proposed Stillwater site was “responsive” to the basic purpose of the City’s project: “to increase the activity of contributory economic sectors by constructing a business park within[the City’s] sphere of influence capable of attracting and accommodating diverse business and industrial users.” According to the draft EIS, accomplishing this purpose required a site large enough to accommodate at least one 100-acre parcel, and the proposed Stillwater site satisfied this requirement. The draft EIS further explained that the proposed Stillwater site met various cost, technological, and logistical feasibility criteria. It stated, for example, that the proposed site was available for acquisition; that it did not “result in adverse social or economic effects on existing development”; that it was “capable of being served by city utilities”; and that it did not entail unreasonable development costs. Finally, the draft EIS concluded that the proposed Stillwater site was the least environmentally damaging of the potential sites that satisfied both the project’s purpose and the feasibility criteria. The draft EIS acknowledged that development of the proposed site would entail the construction of various buildings, bridges, roads, and paths, as well as the extension of water, sewer, electrical, and other utility lines. It maintained, however, that the proposed site would have “less direct” effects on the wetlands and the endangered and threatened species living there than the other leading sites under consideration. Accordingly, the draft EIS announced that the Stillwater site was the City’s “preferred” location for a new business park. b The Army Corps of Engineers reviewed and commented on the City’s draft EIS. In a letter dated May 4, 2005, the Corps stated that the City’s proposed Stillwater site “does not appear to be the [least environmentally damaging practicable alternative], as there may be less environmentally damaging alternatives for this project.... Alternatives that have fewer impacts to waters while still meeting the project’s purpose and need appear to exist.” The Corps argued that “the screening criteria used for selecting practicable alternatives [were] too restrictive to determine a[least environmentally damaging practicable alternative] and eliminate[] reasonable alternatives such as alternative 4” — a site the City had rejected because a 100-acre parcel could not be developed there without filling or altering an 8,300-foob-long tributary. Finally, the Corps noted that “[fjurther efforts to address and reduce direct, indirect, secondary and cumulative impacts within the preferred and alternative project sites appear to be practicable.” c The EPA made similar comments in April and June 2005. Like the Corps, the EPA questioned the City’s rejection of alternative 4, arguing that the City had not “articulated a compelling need for a contiguous 100-acre parcel as a centerpiece of the project.” Skeptical that a business park would be “impracticable unless conceived as a single geographic entity,” the EPA urged the City to consider developing several smaller, “disaggregated” parcels instead of a single large one. d In September 2005, the City issued a supplemental draft EIS, which responded to comments on the original draft. In particular, the supplemental draft EIS defended the City’s decision to reject potential sites that would be unable to support at least one 100-acre parcel. It identified various potential business-park users that required parcels of at least 100 acres for their manufacturing and distribution needs, and clarified that the purpose of the project was to construct not just any business park, but “a medium to large parcel business park.” (Emphasis added.) Furthermore, the supplemental draft EIS maintained that a park spread across several “disaggregated” parcels would not be “desirable or conducive to the users expressing interest in the area,” because such a park would lack the “synergy” made possible by a single, contiguous site. According to the supplemental draft EIS, such “synergy” would result from “[c]lose product availability, sharing of resources, and streamlining [of] business practices.” In addition, the supplemental draft EIS reported that “discussions with the resource agencies over the past several months resulted in modifications to [the proposed Stillwater site] that reduced potential impacts to sensitive environmental resources.” The City agreed, for instance, to modify the “footprint” of the proposed site “to reduce impacts to waters of the U.S.”; to “us[e] stormwater [best management practices] to minimize impacts to receiving waters”; and to designate 296 acres of the 678-acre site as “permanent Open Space,” where “[n]o ground disturbance (e.g., bike paths, roads, etc.) will be allowed.” According to the supplemental draft EIS, these and other modifications reduced the “direct wetland impacts” of the proposed Stillwater project from 7.13 acres (as reported in the draft EIS) to 6.50 acres. They likewise reduced the “direct impacts” of the project on ESA-listed plants and crustaceans. e In November 2005, the EPA issued further comments in light of the supplemental draft EIS. One of the EPA’s remaining concerns was that the City’s analysis of the other alternative sites was not as detailed as its analysis of the preferred Stillwater site. The EPA was also concerned that the City had not developed an “off-site mitigation plan for unavoidable impacts to waters of the U.S. and endangered species.” The EPA thus urged the City to include such a plan in its final EIS. f In February 2006, the City published its final EIS. In addition to compiling the City’s earlier responses to comments, the final EIS devoted a section to addressing the EPA’s most recent concerns. The City maintained that its discussion of alternative sites was sufficiently detailed, and directed the EPA to specific portions of the draft and supplemental EISs. The City also highlighted its proposed “compensatory mitigation” efforts — efforts “to offset unavoidable adverse impacts to wetlands, streams, and other aquatic resources.” Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed.Reg. 19,594, 19,594 (Apr. 10, 2008). According to the final EIS, compensatory mitigation would be “achieved through on-site and off-site preservation of habitat in the Open Space Area and other suitable areas,” and would involve “creation, restoration, and enhancement of wetland features.” The final EIS included a mitigation monitoring program “to ensure the effective implementation and enforcement of adopted mitigation measures and permit conditions.” 2 The City formally applied for a section 404 permit in March 2006, and the Corps completed its evaluation of the City’s application in August 2007. Accepting that the “overall project purpose” was “to construct a medium to large sized regional business park,” the Corps agreed that the City needed a single, contiguous site that could be divided into “one 100 acre parcel and numerous parcels ranging from 20 to 50 acres.” The Corps reviewed the alternative sites considered by the City, as well as one additional site — known as the Mitchell site, located directly north of the Stillwater site — that the City had not considered. Based on its review, the Corps determined that the proposed Stillwater site would have 2.145 acres of direct impact, and 2.724 acres of indirect impact, on “waters of the United States.” Nevertheless, the Corps concluded that the proposed Stillwater site was the least environmentally damaging practicable alternative; in the Corps’ view, the City had “clearly demonstrated that there are no practicable alternative sites available,” including no “practicable alternatives having less adverse impact on the aquatic ecosystem.” The Corps further concluded that issuance of a section 404 permit would not be contrary to the public interest. Accordingly, the Corps granted the City’s application. 3 The Corps was not the only federal agency whose approval the City required. Section 7 of the ESA required consultation with the U.S. Fish and Wildlife Service (“FWS”), which “administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior.” Home Builders, 551 U.S. at 651, 127 S.Ct. 2518. The City initiated formal consultation with the FWS in October 2006. In December 2006, the FWS issued a written biological opinion on the City’s proposed development of the Stillwater site. In the opinion, the FWS reviewed the current status of the ESA-listed species and their critical habitat. It then evaluated the direct and indirect effects of the proposed action against an “environmental baseline” of all other past and present human activities in the area. For purposes of the opinion, the FWS presumed that “indirect effects” would occur as the result of any proposed development within 250 feet of the species’ known populations. The FWS further evaluated what it called “cumulative effects” — “the effects of future State, Tribal, local or private actions that are reasonably certain to occur in the action area.” Based on its review, the FWS determined that the proposed Stillwater site contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and the vernal pool tadpole shrimp. According to the FWS, the proposed development would destroy 234.5 acres of this critical habitat (amounting to 5.4% of the fairy shrimp’s critical habitat unit 5 and 0.04% of its 597,821 acres of total critical habitat nationwide, and 5.4% of the tadpole shrimp’s critical habitat unit 1 and 0.10% of its 228,785 acres of total critical habitat nationwide). The FWS also determined that the proposed development would directly affect 0.56 acres, and indirectly affect 6.42 acres, of the crustaceans’ aquatic habitat. The FWS noted, however, that the City proposed to offset these effects by creating or restoring 0.56 acres of aquatic habitat, and preserving another 18.64 acres, at other on- and off-site locations. As for the threatened slender Orcutt grass, the FWS reported that the proposed site contained 500 acres of the plant’s critical habitat, of which 242.2 acres (amounting to 3.7% of the plant’s critical habitat unit 2 and 0.26% of its 94,213 acres of total critical habitat nationwide) would be destroyed. According to the FWS, the proposed development would also directly affect 0.07 acres, and indirectly affect 4.33 acres, of suitable grass habitat itself. The FWS again noted, however, that the City promised to compensate for these losses by creating or restoring 0.14 acres of suitable grass habitat and preserving another 15.94 acres. The FWS acknowledged that “the proposed project would contribute to a local and range-wide trend of habitat loss and degradation,” and “to the fragmentation and reduction of the acreage of the remaining listed vernal pool species habitat.” Nonetheless, the FWS concluded that “the Stillwater Business Park project, as proposed, is not likely to jeopardize the continued existence of the ... vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” The FWS further concluded that “the proposed project would not result in the adverse modification or destruction of critical habitat” for those species. C In June 2008, Butte Environmental Council, a nonprofit environmental organization, filed suit against the Corps and the FWS in federal district court. The Council sought judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 704, of the Corps’ decision to issue a permit for the City’s proposed project and the FWS’s biological opinion that the project would not adversely modify the critical habitat for endangered and threatened species. After the Council amended its complaint to add the City as a defendant, the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the agencies and the City. It held that “the Corps was neither arbitrary nor capricious when rationally concluding the Stillwater site was the [least environmentally damaging practicable alternative],” and that the FWS’s biological opinion stated “a rational connection between the facts found and the conclusion reached.” (Internal quotation marks and brackets omitted.) The Council timely appealed. II We review de novo the district court’s grant of summary judgment. Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 946 (9th Cir.2008). Under the APA, we must set aside agency action that is “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious standard is deferential; we will not vacate an agency’s decision unless it “has 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.” Home Builders, 551 U.S. at 658, 127 S.Ct. 2518 (quoting Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “[A] court is not to substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” FCC v. Fox Television Stations, Inc., — U.S. -, 129 S.Ct. 1800, 1810, 173 L.Ed.2d 738 (2009) (internal quotation marks and citations omitted). III The Council challenges the Corps’ decision to issue the City a section 404 permit to discharge dredged or fill material into the wetlands along Stillwater Creek. The Council contends that the Corps’ decision was arbitrary and capricious for a handful of reasons, none of which we find persuasive. First, the Council argues that the Corps failed to apply the proper presumption under 40 C.F.R. § 230.10(a)(3), which provides that where a proposed activity is not water dependent, “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.” Here, the Corps acknowledged that the proposed project was not water dependent. It then expressly concluded, based on a review of over a dozen alternative sites, that the City had “clearly demonstrated that there are no practicable alternative sites available.” Contrary to the Council’s assertion, the Corps applied the proper presumption and found that it had been rebutted under the appropriate standard. See Bering Strait Citizens, 524 F.3d at 948. Second, the Council argues that the Corps’ decision to issue a section 404 permit was inconsistent with its earlier criticism of the City’s draft EIS. The Council downplays, however, the extent to which the City modified its original plan in response to the Corps’ comments. The City responded by, among other things, modifying the “footprint” of the proposed site “to reduce impacts to waters of the U.S.” and designating 296 acres of the 678-acre site as “permanent Open Space.” As a result of these and other changes, the “direct wetland impacts” of the proposed site were reduced from 7.13 to 6.50 acres. “The Corps’ ultimate decision was not a reversal but simply the culmination of [years] of investigations, meetings, and reports.” Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir.1986). Indeed, the process worked just as it should. Agencies are entitled to change their minds, Home Builders, 551 U.S. at 658-59, 127 S.Ct. 2518, and the Corps followed the proper procedures in doing so here. “Certainly, the Corps’ initial comments were preliminary and subject to change as understanding of permit issues expanded, the factual record developed, and the mitigation plan [was] created.” Hintz, 800 F.2d at 834. Given the back- and-forth between the City and the Corps, we have no trouble discerning the path of the agency’s reasoning over time. Third, the Council maintains that the Corps never made an “independent determination” of the project’s purpose or the size of the parcels needed. On such matters, the Council contends, the Corps “simply deferred” to the City’s judgment. The record, however, suggests otherwise. Far from blindly accepting the project’s stated purpose, the Corps initially expressed skepticism that the City needed a site large enough to accommodate a 100-acre parcel, arguing that “the screening criteria used for selecting practicable alternatives [were] too restrictive.” In response, the City revised its EIS to clarify that “a medium to large parcel business park” was necessary to meet the manufacturing and distribution needs of interested business-park users and to create the desired “synergy” among the park’s occupants. It is true that the Corps ultimately accepted the City’s revised statement of purpose and conducted its analysis in light of it. But “the Corps has a duty to consider the applicant’s purpose,” where, as here, that purpose is “genuine and legitimate.” Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989). The Corps’ consideration of the project’s stated purpose was not unreasonable. Fourth, the Council argues that the Corps should not have rejected the Mitchell site as a practicable alternative. In its decision, the Corps noted that when the City entered the market for a site in 2001, the offering price of the Mitchell property was about $2.6 million, but that by 2006, when the City was ready to make a purchase, the price had risen to $12 million. The Council maintains that the Corps erred by evaluating the Mitchell property on the basis of its value in 2006 rather than 2001. The Council, however, misreads the Corps’ decision. Although the Corps did mention that the offering price of the Mitchell site had risen since 2001, it nowhere relied on that fact in its substantive evaluation of the site. Rather, in rejecting the site, the Corps emphasized that the site was “not contiguous with property already owned by the City”; that “[t]he topography and geology of the site [was] not conducive for the purposes of the proposed development”; and that “[t]he amount of property available for development [was] too small to achieve the overall project purpose.” In terms of cost, the Corps focused only on the cost of infrastructure, which it believed would be “substantially more” with respect to the Mitchell site than with respect to others. Given that the Corps’ analysis did not reflect any consideration of the cost of acquiring the Mitchell site, the Council’s challenge to the rejection of the site fails. Finally, the Council asserts that the Corps improperly relied on the City’s proposed off-site mitigation as part of its analysis. The Council argues specifically that the Corps allowed the adoption of off-site mitigation measures to relieve the City of its responsibility to adopt the least environmentally damaging practicable alternative. But while it is true that the Corps made compensatory mitigation a condition of the permit, there is no indication that such mitigation was meant as an obligation in place of the City’s responsibility to adopt the least environmentally damaging practicable alternative, as opposed to an obligation in addition to it. “[C]ompensatory mitigation is a critical tool in helping the federal government to meet the longstanding national goal of ‘no net loss’ of wetland acreage and- function,” Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed.Reg. 19,594, 19,594 (Apr. 10, 2008), and nothing suggests that the Corps abused it in this case. In sum, the Corps stated a rational connection between the facts found and the conclusion that the proposed Stillwater site was the least environmentally damaging practicable alternative. We therefore conclude that the Corps’ decision to issue the City a permit was neither arbitrary nor capricious. IV The Council also challenges as arbitrary and capricious the FWS’s biological opinion that the City’s proposed Stillwater project “would not result in the adverse modification or destruction of critical habitat for vernal pool fairy shrimp, vernal pool tadpole shrimp, or slender Orcutt grass.” A The Council contends that the FWS applied an improper definition of “adverse modification” under section 7 of the ESA. The regulations implementing section 7 define “destruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” 50 C.F.R. § 402.02. In Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir.2004), we held that “the regulatory definition of ‘adverse modification’ contradicts Congress’s express command.” Id. at 1069. We explained that Congress enacted the ESA “not merely to forestall the extinction of [a] species (i.e., promote a species[’] survival), but to allow a species to recover to the point where it may be delisted.” Id. at 1070 (emphases added) (citing 16 U.S.C. § 1532(3)). “Because it is logical and inevitable that a species requires more critical habitat for recovery than is necessary for the species[’] survival,” id. at 1069, we faulted the regulations for requiring appreciable diminishment of “the value of critical habitat for both the survival and recovery of a listed species” in order for “adverse modification” to occur, 50 C.F.R. § 402.02 (emphases added). We concluded that “[wjhere Congress in its statutory language required ‘or,’ the agency in its regulatory definition substituted ‘and.’ ” Gifford Pinchot, 378 F.3d at 1070. According to the Council, the FWS applied a definition of “adverse modification” that did not account for the “recovery needs” of the affected species, as required under Gifford Pinchot. The FWS, however, expressly stated: This biological opinion does not rely on the regulatory definition of ‘destruction or adverse modification’ of critical habitat at 50 CFR 402.02. Instead, we have relied upon the statute and the August 6, 2004, Ninth Circuit Court of Appeals decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service (No. 03-35279) to complete the following analysis with respect to critical habitat. Nothing in the biological opinion suggests otherwise. We therefore reject the Council’s contention that the FWS applied a definition of “adverse modification” that ignored the value of critical habitat for the recovery of the affected species. B Taking a different tack, the Council contends that the FWS’s finding of no “adverse modification” conflicts with its determination that the proposed Stillwater project would destroy 234.5 acres of critical habitat for the vernal pool crustaceans and 242.2 acres of critical habitat for siender Orcutt grass. Gifford Pinchot, however, did not alter the rule that an “adverse modification” occurs only when there is “a direct or indirect alteration that appreciably diminishes the value of critical habitat.” 50 C.F.R. § 402.02 (emphasis added); see Gifford Pinchot, 378 F.3d at 1070 (taking issue only with the use of “and” instead of “or” in the regulatory definition of “adverse modification”); id. at 1075 (discussing appreciable diminishment). An area of a species’ critical habitat can be destroyed without appreciably diminishing the value of critical habitat for the species’ survival or recovery. As the FWS’s ESA consultation handbook explains: Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species’ range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act 4-34 (1998) (boldface removed). The FWS’s determination that critical habitat would be destroyed was thus not inconsistent with its finding of no “adverse modification.” After all, the project would destroy only a very small percentage of each affected species’ critical habitat, whether viewed on a unit or nationwide basis. The Council maintains, however, that the FWS’s focus on the project’s large-scale impact on the species’ critical habitat “mask[ed] the Project’s localized impact.” “Focusing solely on a vast scale can mask multiple site-specific impacts that, when aggregated, do pose a significant risk to a species.” Gifford Pinchot, 378 F.3d at 1075. But where, as here, there is no evidence in the record that “some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the FWS.” Id. C Finally, the Council faults the FWS for failing to address the rate of loss of critical habitat for the species in question. Neither the ESA nor its implementing regulations, however, require that the FWS calculate a rate of loss. Rather, they require only that the FWS evaluate “the current status of the listed species or critical habitat,” “the effects of the action,” and the “cumulative effects on the listed species or critical habitat.” 50 C.F.R. § 402.14(g)(2)-(3). We are satisfied that the FWS faithfully conducted such analysis here. Applying the proper definition of “adverse modification,” the FWS reasonably concluded that the effects of the proposed project would not appreciably diminish the value of the species’ critical habitat. Accordingly, we hold that the FWS’s finding of no “adverse modification” was neither arbitrary nor capricious. V For the foregoing reasons, the judgment of the district court is AFFIRMED. . Accordingly, we express no opinion on whether the "adverse modification” inquiry under section 7 of the ESA properly focuses on the effects of an action on a particular unit of critical habitat or on total critical habitat nationwide.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Justice Kennedy delivered the opinion of the Court. These cases require us to address two questions under the Clean Water Act (CWA or Act). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA or Agency), to issue a permit for the discharge of mining waste, called slurry. The Corps of Engineers (or Corps) has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into a lake in southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with law. We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful. With regard to the first question, § 404(a) of the CWA grants the Corps the power to “issue permits ... for the discharge of . . . fill material.” 86 Stat. 884, 33 U. S. C. § 1344(a). But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to “issue a permit for the discharge of any pollutant,” “[e]xcept as provided in” §404. 33 U. S. C. § 1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as “fill material,” 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under § 404, rather than from the EPA, under § 402. The second question is whether the Corps permit is lawful. Three environmental groups, respondents here, sued the Corps under the Administrative Procedure Act, arguing that the issuance of the permit by the Corps was “not in accordance with law.” 5 U. S. C. §706(2)(A). The environmental groups are Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation (collectively, SEACC). The State of Alaska and Coeur Alaska are petitioners here. SEACC argues that the permit from the Corps is unlawful because the discharge of slurry would violate an EPA regulation promulgated under § 306(b) of the CWA, 33 U. S. C. § 1316(b). The EPA regulation, which is called a “new source performance standard,” forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters. 40 CFR § 440.104(b)(1). Coeur Alaska, the State of Alaska, and the federal agencies maintain that the Corps permit is lawful nonetheless because the EPA’s performance standard does not apply to discharges of fill material. Reversing the judgment of the District Court, the Court of Appeals held that the EPA’s performance standard applies to this discharge so that the permit from the Corps is unlawful. I A Petitioner Coeur Alaska plans to reopen the Kensington Gold Mine, located some 45 miles north of Juneau, Alaska. The mine has been closed since 1928, but Coeur Alaska seeks to make it profitable once more by using a technique known as “froth flotation.” Coeur Alaska will churn the mine’s crushed rock in tanks of frothing water. Chemicals in the water will cause gold-bearing minerals to float to the surface, where they will be skimmed off. At issue is Coeur Alaska’s plan to dispose of the mixture of crushed rock and water left behind in the tanks. This mixture is called slurry. Some 30 percent of the slurry’s volume is crushed rock, resembling wet sand, which is called tailings. The rest is water. The standard way to dispose of slurry is to pump it into a tailings pond. The slurry separates in the pond. Solid tailings sink to the bottom, and water on the surface returns to the mine to be used again. Rather than build a tailings pond, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. This lake is small— 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. See App. 138a, 212a. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lake-bed 50 feet — to what is now the lake’s surface — and will increase the lake’s area from 23 to about 60 acres. Id., at 361a (62 acres), 212a (56 acres). To contain this wider, shallower body of water, Coeur Alaska will dam the lake’s downstream shore. The transformed lake will be isolated from other surface water. Creeks and stormwater runoff will detour around it. Id., at 298a. Ultimately, lakewater will be cleaned by purification systems and will flow from the lake to a stream and thence onward. Id., at 309a-312a. B Numerous state and federal agencies reviewed and approved Coeur Alaska’s plans. At issue here are actions by two of those agencies: the Corps of Engineers and the EPA. 1 The CWA classifies crushed rock as a “pollutant.” 33 U. S. C. § 1362(6). On the one hand, the Act forbids Coeur Alaska’s discharge of crushed rock “[e]xcept as in compliance” with the Act. CWA § 301(a), 33 U. S. C. § 1311(a). Section 404(a) of the CWA, on the other hand, empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. § 1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR § 232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.” Ibid. In these cases the Corps and the EPA agree that the slurry meets their regulatory definition of “fill material.” On that premise the Corps evaluated the mine’s plan for a §404 permit. After considering the environmental factors required by § 404(b), the Corps issued Coeur Alaska a permit to pump the slurry into Lower Slate Lake. App. 340a-378a. In granting the permit the Corps followed the steps set forth by § 404. Section 404(b) requires the Corps to consider the environmental consequences of every discharge it allows. 33 U. S. C. § 1344(b). The Corps must apply guidelines written by the EPA pursuant to § 404(b). See ibid.; 40 CFR pt. 230 (EPA guidelines). Applying those guidelines here, the Corps determined that Coeur Alaska’s plan to use Lower Slate Lake as a tailings pond was the “least environmentally damaging practicable” way to dispose of the tailings. App. 366a. To conduct that analysis, the Corps compared the plan to the proposed alternatives. The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Id., at 298a. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Ibid.; see Part I-B-2, infra. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help “reclaim]” the lake by “Mapping” the tailings with about four inches of “native material.” App. 361a; id., at 309a. The Corps concluded that “[t]he reclamation of the lake will result in more emergent wetlands/vegetated shallows with moderate values for fish habitat, nutrient recycling, carbon/detrital export and sediment/toxicant retention, and high values for wildlife habitat.” Id., at 361a. If the tailings did not go into the lake, they would be placed on nearby wetlands. The resulting pile would rise twice as high as the Pentagon and cover three times as many acres. Reply Brief for Petitioner Coeur Alaska 27. If it were chosen, that alternative would destroy dozens of acres of wetlands — a permanent loss. App. 365a-366a. On the premise that when the mining ends the lake will be at least as environmentally hospitable, if not more so, than now, the Corps concluded that placing the tailings in the lake will cause less damage to the environment than storing them above ground: The reclaimed lake will be “more valuable to the aquatic ecosystem than a permanently filled wetland . . . that has lost all aquatic functions and values.” Id., at 361a; see also id., at 366a. 2 The EPA had the statutory authority to veto the Corps permit, and prohibit the discharge, if it found the plan to have “an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas . . . , wildlife, or recreational areas.” CWA § 404(c), 33 U. S. C. § 1344(c). After considering the Corps’ findings, the EPA did not veto the Corps permit, even though, in its view, placing the tailings in the lake was not the “environmentally preferable” means of disposing of them. App. 300a. By declining to exercise its veto, the EPA in effect deferred to the judgment of the Corps on this point. The EPA’s involvement extended beyond the Agency’s veto consideration. The EPA also issued a permit of its own — not for the discharge from the mine into the lake but for the discharge from the lake into a downstream creek. Id., at 287a-331a. Section 402 grants the EPA authority to “issue a permit for the discharge of any pollutant,” “[ejxcept as provided in [CWA §404].” 33 U. S. C. § 1342(a). The EPA’s §402 permit authorizes Coeur Alaska to discharge water from Lower Slate Lake into the downstream creek, subject to strict water-quality limits that Coeur Alaska must regularly monitor. App. 303a-304a, 309a. The EPA’s authority to regulate this discharge comes from a regulation, termed a “new source performance standard,” that it has promulgated under authority granted to it by § 306(b) of the CWA. Section 306(b) gives the EPA authority to regulate the amount of pollutants that certain categories of new sources may discharge into the navigable waters of the United States. 33 U. S. C. § 1316(b). Pursuant to this authority, the EPA in 1982 promulgated a new source performance standard restricting discharges from new froth-flotation gold mines like Coeur Alaska’s. The standard is stringent: It allows “no discharge of process wastewater” from these mines. 40 CFR § 440.104(b)(1). Applying that standard to the discharge of water from Lower Slate Lake into the downstream creek, the EPA’s § 402 permit sets strict limits on the amount of pollutants the water may contain. The permit requires Coeur Alaska to treat the water using “reverse osmosis” to remove aluminum, suspended solids, and other pollutants. App. 298a; id., at 304a. Coeur Alaska must monitor the water flowing from the lake to be sure that the pollutants are kept to low, specified minimums. Id., at 326a-330a. C SEACC brought suit against the Corps of Engineers and various of its officials in the.United States District Court for the District of Alaska. The Corps permit was not in accordance with law, SEACC argued, for two reasons. First, in SEACC’s view, the permit was issued by the wrong agency — Coeur Alaska ought to have sought a §402 permit from the EPA, just as the company did for the discharge of water from the lake into the downstream creek. See Part I-B-2, supra. Second, SEACC contended that regardless of which agency issued the permit, the discharge itself is unlawful because it will violate the EPA new source performance standard for froth-flotation gold mines. (This is the same performance standard described above, which the EPA has already applied to the discharge of water from the lake into the downstream creek. See ibid.) SEACC argued that this performance standard also applies to the discharge of slurry into the lake. It contended further that the performance standard is a binding implementation of § 306. Section 306(e) of the CWA makes it “unlawful” for Coeur Alaska to “operate” the mine “in violation of” the EPA’s performance standard. 33 U. S. C. § 1316(e). Coeur Alaska and the State of Alaska intervened as defendants. Both sides moved for summary judgment. The District Court granted summary judgment in favor of the defendants. The Court of Appeals for the Ninth Circuit reversed and ordered the District Court to vacate the Corps of Engineers’ permit. Southeast Alaska Conservation Council v. United States Army Corps of Engs., 486 F. 3d 638, 654-655 (2007). The court acknowledged that Coeur Alaska’s slurry “facially meets the Corps’ current regulatory definition of ‘fill material,’ ” id., at 644, because it would have the effect of raising the lake’s bottom elevation. But the court also noted that the EPA’s new source performance standard “prohibits discharges from froth-flotation mills.” Ibid. The Court of Appeals concluded that “[b]oth of the regulations appear to apply in this case, yet they are at odds.” Ibid. To resolve the conflict, the court turned to what it viewed as “the plain language of the Clean Water Act.” Ibid. The court held that the EPA’s new source performance standard “applies to discharges from the froth-flotation mill at Coeur Alaska’s Kensington Gold Mine into Lower Slate Lake.” Ibid. In addition to the text of the CWA, the Court of Appeals also relied on the agencies’ statements made when promulgating their current and prior definitions of “fill material.” These statements, in the Court of Appeals’ view, demonstrated the agencies’ intent that the EPA’s new source performance standard govern discharges like Coeur Alaska’s. Id., at 648-654. The Court of Appeals concluded that Coeur Alaska required a § 402 permit for its slurry discharge, that the Corps lacked authority to issue such a permit under § 404, and that the proposed discharge was unlawful because it would violate the EPA new source performance standard and § 306(e). The decision of the Court of Appeals in effect reallocated the division of responsibility that the Corps and the EPA had been following. The Court granted certiorari. 554 U. S. 931 (2008). We now hold that the decision of the Court of Appeals was incorrect. II The question of which agency has authority to consider whether to permit the slurry discharge is our beginning inquiry. We consider first the authority of the EPA and second the authority of the Corps. Our conclusion is that under the CWA the Corps had authority to determine whether Coeur Alaska was entitled to the permit governing this discharge. A Section 402 gives the EPA authority to issue “permit[s] for the discharge of any pollutant,” with one important exception: The EPA may not issue permits for fill material that fall under the Corps’ §404 permitting authority. Section 402(a) states: “Except as provided in . . . [CWA §404, 33 U. S. C. § 1344], the Administrator may ... issue a permit for the discharge of any pollutant, . . . notwithstanding [CWA § 301(a), 33 U. S. C. § 1311(a)], upon condition that such discharge will meet either (A) all applicable requirements under [CWA §301, 33 U. S. C. § 1311; CWA §302, 33 U. S. C. § 1312; CWA §306, 33 U. S. C. § 1316; CWA §307, 33 U. S. C. § 1317; CWA §308, 33 U. S. C. § 1318; CWA § 403, 33 U. S. C. § 1343], or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.” 33 U. S. C. § 1342(a)(1) (emphasis added). Section 402 thus prohibits the EPA from exercising permitting authority that is “provided [to the Corps] in” § 404. This is not to say the EPA has no role with respect to the environmental consequences of fill. The EPA’s function is different, in regulating fill, from its function in regulating other pollutants, but the Agency does exercise some authority. Section 404 assigns the EPA two tasks in regard to fill material. First, the EPA must write guidelines for the Corps to follow in determining whether to permit a discharge of fill material. CWA § 404(b); 33 U. S. C. § 1344(b). Second, the Act gives the EPA authority to “prohibit” any decision by the Corps to issue a permit for a particular disposal site. CWA § 404(c); 33 U. S. C. § 1344(c). We, and the parties, refer to this as the EPA’s power to veto a permit. The Act is best understood to provide that if the Corps has authority to issue a permit for a discharge under §404, then the EPA lacks authority to do so under § 402. Even if there were ambiguity on this point, the EPA’s own regulations would resolve it. Those regulations provide that “discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits” from the EPA. 40 CFR §122.3. In SEACC’s view, this regulation implies that some “fill material” discharges are not regulated under §404 — else, SEACC asks, why would the regulation lack a comma before the word “which,” and thereby imply that only a subset of “discharges of . . . fill material” are “regulated under section 404.” Ibid. The agencies, however, have interpreted this regulation otherwise. In the agencies’ view the regulation essentially restates the text of § 402, and prohibits the EPA from issuing permits for discharges that “are regulated under section 404.” 40 CFR § 122.3(b); cf. CWA § 402(a) (“[e]xcept as provided in ... [§ 404], the Administrator may . . . issue a permit”). Before us, the EPA confirms this reading of the regulation. Brief for Federal Respondents 27. The Agency’s interpretation is not “plainly erroneous or inconsistent with the regulation”; and so we accept it as correct. Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted). The question whether the EPA is the proper agency to regulate the slurry discharge thus depends on whether the Corps of Engineers has authority to do so. If the Corps has authority to issue a permit, then the EPA may not do so. We turn to the Corps’ authority under § 404. B Section 404(a) gives the Corps power to “issue permits ... for the discharge of dredged or fill material.” 33 U. S. C. § 1344(a). As all parties concede, the slurry meets the definition of fill material agreed upon by the agencies in a joint regulation promulgated in 2002. That regulation defines “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water — a definition that includes “slurry, or tailings or similar mining-related materials.” 40 CFR § 232.2. SEACC concedes that the slurry to be discharged meets the regulation’s definition of fill material. Brief for Respondent SEACC et al. 20. Its concession on this point is appropriate because slurry falls well within the central understanding of the term “fill,” as shown by the examples given by the regulation. See 40 CFR § 232.2 (“Examples of such fill material include, but are not limited to: rock, sand, soil, clay . . . ”). The regulation further excludes “trash or garbage” from its definition. Ibid. SEACC expresses a concern that Coeur Alaska’s interpretation of the statute will lead to § 404 permits authorizing the discharges of other solids that are now restricted by EPA standards. Brief for Respondent SEACC et al. 44-45 (listing, for example, “feces and uneaten feed,” “litter,” and waste produced in “battery manufacturing”). But these extreme instances are not presented by the cases now before us. If, in a future case, a discharger of one of these solids were to seek a § 404 permit, the dispositive question for the agencies would be whether the solid at issue — for instance, “feces and uneaten feed”— came within the regulation’s definition of “fill.” SEACC cites no instance in which the agencies have so interpreted their fill regulation. If that instance did arise, and the agencies were to interpret the fill regulation as SEACC fears, then SEACC could challenge that decision as an unlawful interpretation of the fill regulation; or SEACC could claim that the fill regulation as interpreted is an unreasonable interpretation of §404. The difficulties are not presented here, however, because the slurry meets the regulation’s definition of fill. Rather than challenge the agencies’ decision to define the slurry as fill, SEACC instead contends that §404 contains an implicit exception. According to SEACC, § 404 does not authorize the Corps to permit a discharge of fill material if that material is subject to an EPA new source performance standard. But §404’s text does not limit its grant of power in this way. Instead, § 404 refers to all “fill material” without qualification. Nor do the EPA regulations support SEACC’s reading of § 404. The EPA has enacted guidelines, pursuant to § 404(b), to guide the Corps’ permitting decision. 40 CFR pt. 230. Those guidelines do not strip the Corps of power to issue permits for fill in cases where the fill is also subject to an EPA new source performance standard. SEACC’s reading of § 404 would create numerous difficulties for the regulated industry. As the regulatory regime stands now, a discharger must ask a simple question — is the substance to be discharged fill material or not? The fill regulation, 40 CFR §232.2, offers a clear answer to that question; and under the agencies’ view, that answer decides the matter — if the discharge is fill, the discharger must seek a § 404 permit from the Corps; if not, only then must the dis-charger consider whether any EPA performance standard applies, so that the discharger requires a § 402 permit from the EPA. Under SEACC’s interpretation, however, the discharger would face a more difficult problem. The discharger would have to ask — is the fill material also subject to one of the many hundreds of EPA performance standards, so that the permit must come from the EPA, not the Corps? The statute gives no indication that Congress intended to burden industry with that confusing division of permit authority. The regulatory scheme discloses a defined, and workable, line for determining whether the Corps or the EPA has the permit authority. Under this framework, the Corps of Engineers, and not the EPA, has authority to permit Coeur Alaska’s discharge of the slurry. Ill A second question remains: In issuing the permit did the Corps act in violation of a statutory mandate so that the issuance was “not in accordance with law”? 5 U. S. C. §706(2)(A). SEACC contends that the slurry discharge will violate the EPA’s new source performance standard and that the Corps’ permit is made “unlawful” by CWA § 306(e). Petitioners and the agencies argue that the permit is lawful because the EPA performance standard and § 306(e) do not apply to fill material regulated by the Corps. In order to determine whether the Corps’ permit is lawful we must answer the question: Do EPA performance standards, and § 306(e), apply to discharges of fill material? We address in turn the statutory text of the CWA, the agencies’ regulations construing it, and the EPA’s subsequent interpretation of those regulations. Because Congress has not “directly spoken” to the “precise question” of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case. Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). We look first to the agency regulations, which are entitled to deference if they resolve the ambiguity in a reasonable manner. Ibid.; see United States v. Mead Corp., 533 U. S. 218, 226-227 (2001). But the regulations, too, are ambiguous, so we next turn to the agencies’ subsequent interpretation of those regulations. Id., at 234-238; Auer, 519 U. S., at 461. In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not “plainly erroneous or inconsistent with the regulation[s],” and so we accept it as correct. Ibid, (internal quotation marks omitted). Though SEACC contends that the agencies’ interpretation is not entitled to deference because it contradicts the agencies’ published statements and prior practice, we disagree with SEACC’s reading of those statements and of the regulatory record. A As for the statutory argument, SEACC claims the CWA §404 permit is unlawful because § 306(e) forbids the slurry discharge. Petitioners and the federal agencies, in contrast, contend that § 306(e) does not apply to the slurry discharge. 1 To address SEACC’s statutory argument, it is necessary to review the EPA’s responsibilities under the CWA. As noted, §306 empowers the EPA to regulate the froth-flotation gold mining industry. See 33 U. S. C. § 1316(b). Pursuant to this authority, EPA promulgated the new source performance standard relied upon by SEACC. The standard is stringent. If it were to apply here, it would allow “no discharge of process wastewater” from the mine. 40 CFR § 440.104(b)(1). The term “process wastewater” includes solid waste. So the regulation forbids not only pollutants that dissolve in water but also solid pollutants suspended in water — what the Agency terms “total suspended solids,” or TSS. See § 440.104(a) (limiting the amount of TSS from other kinds of mines); see also EPA Development Document for Effluent Limitations Guidelines and Standards for the Ore Mining and Dressing Point Source Category 157-158 (Nov. 1982) (the amount of TSS in “wastewater” from froth-flotation mines is “generally high”); id., at 175 (Table VI-6) (measuring the amounts of TSS in samples of froth-flotation mines’ discharges); id., at 194 (stating an intent to “regulat[e]” TSS); id., at 402 (evaluating the costs of constructing a “settling pond”); id., at 535 (concluding that even in mountainous regions, a froth-flotation mine will be able to construct a “tailings impoundment” to “provide a disposal area for mill tailings”). Were there any doubt about whether the EPA’s new source performance standard forbade solids as well as soluble pollutants, the Agency’s action in these cases would resolve it. Here, the EPA’s §402 permit authorizes Coeur Alaska to discharge water from Lower Slate Lake into a downstream creek, provided the water meets the quality requirements set by the performance standard. This demonstrates that the performance standard regulates solid waste. The EPA’s permit not only restricts the amount of total suspended solids, App. 327a (Table 3), but also prohibits the mine from allowing any “floating solids” to flow from the lake. Id., at 328a. No party disputes the EPA’s authority to regulate these discharges of solid mining waste; and no party questions the validity of the EPA’s new source performance standard when it is applicable. When the performance standard applies to a point source, § 306(e) makes it “unlawful” for that point source to violate it: “[I]t shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” CWA § 306(e), 33 U. S. C. § 1316(e). SEACC argues that this provision, § 306(e), prohibits the mine from discharging slurry into Lower Slate Lake. SEACC contends the new source performance standard is, in the words of § 806(e), “applicable to” the mine. Both the text of the performance standard and the EPA’s application of it to the discharge of mining waste from Lower Slate Lake demonstrate that the performance standard is “applicable to” Coeur Alaska’s mine in some circumstances. And so, SEACC reasons, it follows that because the new source performance standard forbids even minute discharges of solid waste, it also forbids the slurry discharge, 30 percent of which is solid waste. 2 For their part, the State of Alaska and the federal agencies claim that the Act is unambiguous in the opposite direction. They rely on § 404 of the Act. As explained above, that section authorizes the Corps of Engineers to determine whether to issue a permit allowing the discharge of the slurry. Petitioners and the agencies argue that §404 grants the Corps authority to do so without regard to the EPA’s new source performance standard or the § 306(e) prohibition discussed above. Petitioners and the agencies make two statutory arguments based on § 404’s silence in regard to § 306. First, they note that nothing in § 404 requires the Corps to consider the EPA’s new source performance standard or the § 306(e) prohibition. That silence advances the argument that §404’s grant of authority to “issue permits” contradicts §306(e)’s declaration that discharges in violation of new source per-. formance standards are “unlawful.” Second, petitioners and the agencies point to §404(p), which protects § 404 permitees from enforcement actions by the EPA or private citizens: “Compliance with a permit issued pursuant to this section . . . shall be deemed compliance, for purposes of sections 1319 [CWA §309] and 1365 [CWA §505] of this title, with sections 1311 [CWA §301], 1317 [CWA §307], and 1343 [CWA §403] of this title.” 33 U. S. C. § 1344(p). Here again, their argument is that silence is significant. Section 404(p) protects the permittee from lawsuits alleging violations of CWA § 301 (which bars the discharge of “any pollutant” “[e]xcept as in compliance” with the Act); §307 (which bars the discharge of “toxic pollutants”); and §403 (which bars discharges into the sea). But § 404(p) does not in express terms protect the permittee from a lawsuit alleging a violation of § 306(e) or of the EPA’s new source performance standards. Section 404(p)’s silence regarding § 306 is made even more significant because a parallel provision in § 402 does protect a § 402 permittee from an enforcement action alleging a violation of §306. CWA §402(k), 33 U. S. C. § 1342(k). In our view, Congress’ omission of §306 from §404, and its inclusion of §306 in §402(k), is evidence that Congress did not intend § 306(e) to apply to Corps § 404 permits or to discharges of fill material. If § 306 did apply, then the Corps would be required to evaluate each permit application for compliance with § 306, and issue a permit only if it found the discharge would comply with § 306. But even if that finding were made, it is not clear that the §404 permittee would be protected from a suit seeking a judicial determination that the discharge violates § 306. 3 The CWA is ambiguous on the question whether § 306 applies to discharges of fill material regulated under § 404. On the one hand, §306 provides that a discharge that violates an EPA new source performance standard is “unlawful”— without any exception for fill material. On the other hand, §404 grants the Corps blanket authority to permit the discharge of fill material — without any mention of § 306. This tension indicates that Congress has not “directly spoken” to the “precise question” whether § 306 applies to discharges of fill material. Chevron, 467 U. S., at 842. B Before turning to how the agencies have resolved that question, we consider the formal regulations that bear on §§306 and 404. See Mead, 533 U. S., at 234-238. The regulations, like the statutes, do not address the question whether § 306, and the EPA new source performance standards promulgated under it, applies to § 404 permits and the discharges they authorize. There is no regulation, for example, interpreting § 306(e)’s text — “standard of performance applicable to such source” — to mean that a performance standard ceases to be “applicable” the moment the discharge qualifies as fill material, which would resolve the cases in petitioners’ favor. Nor is there a regulation providing that the Corps, in deciding whether to grant a permit under § 404, must deny that permit if the discharge would violate § 306(e), which would decide the cases for SEACC. Rather than address the tension between §§ 306 and 404, the regulations instead implement the statutory framework without elaboration on this point. Each of the two principal regulations, which have been mentioned above, seems to stand on its own without reference to the other. The EPA’s new source performance standard contains no exception for fill material; and it forbids any discharge of “process wastewater,” a term that includes solid wastes. 40 CFR §440.104(b)(1); see Part III-A-1, supra. The agencies’ joint regulation defining fill material is also unqualified. It includes “slurry, or tailings or similar mining-related materials” in its definition of a “discharge of fill material,” 40 CFR § 232.2; and it contains no exception for slurry that is regulated by an EPA performance standard. The parties point to additional regulations, but these pro- ■ visions do not offer a clear basis of reconciliation. An EPA regulation, mentioned above, provides that “ [discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§ 402] permits” from the EPA. § 122.3. As we have explained, however, this merely states that a permit for this discharge cannot be issued by the EPA. See Part II, supra. The regulation does not answer the question whether the EPA’s new source performance standard and § 306(e) apply to a discharge regulated by the Corps under § 404. The agencies also direct us to the § 404(b) guidelines written by the EPA to guide the Corps permitting decision. See' 40 CFR pt. 230. The agencies note that these guidelines do not expressly require the Corps, in issuing a permit, to consider whether the discharge would violate EPA’s performance standards. Here we think failure to mention § 306 or the EPA new source performance standards does offer some indication that these are not relevant to the §404 permit, though the argument falls short of being conclusive. The Corps’ own regulations require the agency to evaluate permit applications “for compliance with applicable [EPA] effluent limitations.” 33 CFR § 320.4(d) (2008). The regulations do not answer whether the new source performance standard is “applicable” to a discharge of fill material. C The regulations do not give a definitive answer to the question whether §306 applies to discharges regulated by the Corps under § 404, but we do find that agency interpretation and agency application of the regulations are instructive and to the point. Auer, 519 U. S., at 461. The question is addressed and resolved in a reasonable and coherent way by the practice and policy of the two agencies, all as recited in a memorandum written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water with responsibility over the mine. App. 141a-149a (Regas Memorandum). The Memorandum, though not subject to sufficiently formal procedures to merit Chevron deference, see Mead, supra, at 234-238, is entitled to a measure of deference because it interprets the agencies’ own regulatory scheme. See Auer, supra, at 461. The Regas Memorandum explains: “As a result [of the fact that the discharge is regulated under §404], the regulatory regime applicable to discharges under section 402, including effluent limitations guidelines and standards, such as those applicable to gold ore mining ... do not apply to the placement of tailings into the proposed impoundment [of Lower Slate Lake]. See 40 CFR § 122.3(b).” App. 144a-145a. The regulation that the Memorandum cites — 40 CFR §122.3 — is one we considered above and found ambiguous. That regulation provides: “Discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits.” The Regas Memorandum takes an instructive interpretive step when it explains that because the discharge “do[es] not require” an EPA permit, ibid., the EPA’s performance standard “do[es] not apply” to the discharge. App. 145a. The Memorandum presents a reasonable interpretation of the regulatory regime. We defer to the interpretation because it is not “plainly erroneous or inconsistent with the regulation[s].” Auer, supra, at 461 (internal quotation marks omitted). Five factors inform that conclusion. First, the Memorandum preserves a role for the EPA’s performance standard. It confines the Memorandum’s scope to closed bodies of water, like the lake here. App. 142a-143a, n. 1. When slurry is discharged into a closed body of water, the Memorandum explains, the EPA’s performance standard retains an important role in regulating the discharge into surrounding waters. The Memorandum does not purport to invalidate the EPA’s performance standard. Second, the Memorandum acknowledges that this is not an instance in which the discharger attempts to evade the requirements of the EPA’s performance standard. The Kensington Mine is not, for example, a project that smuggles a discharge of EPA-regulated pollutants into a separate discharge of Corps-regulated fill material. The instant cases do not present a process or plan designed to manipulate the outer boundaries of the definition of “fill material” by labeling minute quantities of EPA-regulated solids as fill. The Memorandum states that when a discharge has only an “incidental filling effect,” the EPA’s performance standard continues to govern that discharge. Id., at 145a. Third, the Memorandum’s interpretation preserves the Corps’ authority to determine whether a discharge is in the public interest. See 33 CFR § 320.4(a)(1); 40 CFR §230.10. The Corps has significant expertise in making this determination. Applying it, the Corps determined that placing slurry in the lake will improve that body of water by making it wider, shallower, and so more capable of sustaining aquatic life. The Corps determined, furthermore, that the alternative — a heap of tailings larger than the Pentagon placed upon wetlands — would cause more harm to the environment. Because the Memorandum preserves an important role for the Corps’ expertise, its conclusion that the EPA’s performance standard does not apply is a reasonable one. Fourth, the Regas Memorandum’s interpretation does not allow toxic pollutants (as distinguished from other, less dangerous pollutants, such as slurry) to enter the navigable waters. The EPA has regulated toxic pollutants under a separate provision, §307 of the CWA, and the EPA’s § 404(b) guidelines require the Corps to deny a §404 permit for any discharge that would violate the EPA’s §307 toxic-effluent limitations. 40 CFR § 230.10(b)(2). Fifth, as a final reason to defer to the Regas Memorandum, we find it a sensible and rational construction that reconciles §§306, 402, and 404, and the regulations implementing them, which the alternatives put forward by the parties do not. SEACC’s argument, that § 402 applies to this discharge and not § 404, is not consistent with the statute and regulations, as already noted. See Part II, supra. The Court requested the parties to submit supplemental briefs addressing whether the CWA contemplated that both agencies would issue a permit for a discharge. 556 U. S. 1219 (2009). A two-permit regime would allow the EPA to apply its performance standard, while the Corps could apply its § 404(b) criteria. The parties agree, however, that a two-permit regime is contrary to the statute and the regulations. We conclude that this is correct. A two-permit regime would cause confusion, delay, expense, and uncertainty in the permitting process. In agreement with all of the parties, we conclude that, when a permit is required to discharge fill material, either a § 402 or a § 404 permit is necessary. Here, we now hold, § 404 applies, not § 402. See Part II, supra. The Regas Memorandum’s interpretation of the agencies’ regulations is consistent with the regulatory scheme as a whole. The Memorandum preserves a role for the EPA’s performance standards; it guards against the possibility of evasion of those standards; it employs the Corps’ expertise in evaluating the effects of fill material on the aquatic environment; it does not allow toxic pollutants to be discharged; and we have been offered no better way to harmonize the regulations. We defer to the EPA’s conclusion that its performance standard does not apply to the initial discharge of slurry into the lake but applies only to the later discharge of water from the lake into the downstream creek. D SEACC argues against deference to the Regas Memorandum. In its view the Regas Memorandum is contrary to published agency statements and earlier agency practice. SEACC cites three agency statements: A 1986 “memorandum of understanding” between the EPA and the Corps regarding the definition of fill material; the preamble to the agencies’ current 2002 fill regulation; and comments made by the agencies in promulgating the 2002 fill regulation. These arguments are not convincing. 1 In 1986, to reconcile their then-differing definitions of “fill material,” the EPA and the Corps issued a “memorandum of agreement.” 51 Fed. Reg. 8871 (MOA). The memorandum was not made subject to notice-and-comment procedures, but it was published in the Federal Register. It defined the statutory term “fill material” until the current definition took effect in 2002. Brief for Federal Respondents 30-31, n. 8. SEACC points to paragraph B(5) of the MOA, which reads:' “[A] pollutant (other than dredged material) will normally be considered by EPA and the Corps to be subject to section 402 if it is a discharge in liquid, semi-liquid, or suspended form or if it is a discharge of solid material of a homogeneous nature normally associated with single industry wastes .... These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes, sand and gravel wastes, fly ash, and drilling muds. As appropriate, EPA and the Corps will identify additional such materials.” 51 Fed. Reg. 8872. It is true, as SEACC notes, that this passage suggests that §402 will “normally” apply to discharges of “suspended”— i. e., solid — pollutants. But that statement is not contrary to the Regas Memorandum, which acknowledges that the EPA retains authority under § 402 to regulate the discharge of suspended solids from Lower Slate Lake into downstream waters. This passage does not address the question presented by these cases, and answered by the Regas Memorandum, as to whether the EPA’s performance standard applies when the discharge qualifies as fill material. In fact, the MOA’s preamble suggests that when a discharge qualifies as “fill material,” the Corps retains authority to regulate it under §404: “Discharges listed in the Corps definition of ‘discharge of fill material,’ . . . remain subject to section 404 even if they occur in association with discharges of wastes meeting the criteria in the agreement for section 402 discharges.” Id., at 8871. The MOA is quite consistent with the agencies’ determination that the Corps regulates all discharges of fill material and that § 306 does not apply to these discharges. 2 SEACC draws our attention to the preamble of the current fill material regulation. 67 Fed. Reg. 31129 (2002) (final rule). It cites the opening passages of the preamble, which state: “[Tjoday’s rule is generally consistent with current agency practice and so it does not expand the types of discharges that will be covered under section 404.” Id., at 31133. In SEACC’s view, this passage demonstrates that the fill rule was not intended to displace the pre-existing froth-flotation gold mine performance standard, which has been on the books since 1982. The preamble goes on to say, in a section entitled “Effluent Guideline Limitations and 402 Permits”: “[W]e emphasize that today’s rule generally is intended to maintain our existing approach to regulating pollutants under either section 402 or 404 of the CWA. Effluent limitation guidelines and new source performance standards (‘effluent guidelines’) promulgated under section 304 and 306 of the CWA establish limitations and standards for specified wastestreams from industrial categories, and those limitations and standards are incorporated into permits issued under section 402 of the Act. EPA has never sought to regulate fill material under effluent guidelines. Rather, effluent guidelines restrict discharges of pollutants from identified waste-streams based upon the pollutant reduction capabilities of available treatment technologies. Recognizing that some discharges (such as suspended or settleable solids) can have the associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants, we do not consider such pollutants to be ‘fill material,’ and nothing in today’s rule changes that view. Nor does today’s rule change any determination we have made regarding discharges that are subject to an effluent limitation guideline and standards, which will continue to be regulated under section 402 of the CWA. Similarly, this rule does not alter the manner in which water quality standards currently apply under the section 402 or the section 404 programs.” Id., at 31135. Although the preamble asserts it does not change agency policy with regard to EPA performance standards and § 402 permitting decisions, it is explicit in noting that the EPA has “never sought to regulate fill material under effluent guidelines.” Ibid. The preamble, then, is consistent with the Regas Memorandum. If a discharge does not qualify as fill material, the EPA’s new source performance standard applies. If the discharge qualifies as fill, the performance standard does not apply; and there was no earlier agency practice or policy to the contrary. 3 SEACC also cites remarks made by the agencies in response to public comments on the proposed fill material regulation. App. 22a-127a. These remarks were incorporated by reference into the administrative record. 67 Fed. Reg. 31131. Responding to a question about whether “mine tailings” would be “subject to section 404 regulation as opposed to section 402” under the 2002 fill regulation, the agencies stated: “Today’s final rule clarifies that any material that has the effect of fill is regulated under section 404 and further that the placement of ‘overburden, slurry, or tailings or similar mining-related materials’ is considered a discharge of fill material. Nevertheless, if EPA has previously determined that certain materials are subject to an [effluent limitation guideline] under specific circumstances, then that determination remains valid. Moreover,... permits issued pursuant to section 402 are intended to regulate process water and provide effluent limits that are protective of receiving water quality. This distinction provides the framework for today’s rule.” App. 48a. This statement is not conclusive of the issue. SEACC notes that this response, like the regulation’s preamble, pledges that EPA’s “previou[s] determination^]” with regard to the application of performance standards “remai[n] valid.” But, as noted above, the Regas Memorandum has followed this policy by applying the EPA’s performance standard to the discharge of water from the lake into the downstream creek. The response does not state that the EPA will apply its performance standards to discharges of fill material. 4 The agencies’ published statements indicate adherence to the EPA’s previous application and interpretation of its performance standards. SEACC cannot show that the agencies have changed their interpretation or application of their regulations. SEACC cites no instance in which the EPA has applied one of its performance standards to a discharge of fill material. By contrast, Coeur Alaska cites two instances in which the Corps issued a §404 permit authorizing a mine to discharge solid waste (tailings) as fill material. See Brief for Petitioner Coeur Alaska 40-42. SEACC objects that those two §404 permits authorized discharges that used the tailings to construct useful structures — a dam in one ease, a tailings pond in another. Here, by contrast, SEACC contends that the primary purpose of the discharge is to use a navigable water to dispose of waste. Ibid. But that objection misses the point. The two §404 permits cited by Coeur Alaska illustrate that the agencies did not have a prior practice of applying EPA performance standards to discharges of mining wastes that qualify as fill material. SEACC has not demonstrated that the agencies have changed their policy, and it cannot show that the Regas Memorandum is contrary to the agencies’ published statements. * * * - We accord deference to the agencies’ reasonable decision to continue their prior practice. The judgment of the Court of Appeals is reversed, and these cases are remanded for further proceedings consistent with this opinion. It is so ordered.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Justice Breyer, concurring. As I understand the Court’s opinion, it recognizes a legal zone within which the regulating agencies might reasonably classify material either as “dredged or fill material” subject to § 404 of the Clean Water Act, 33 U. S. C. § 1344(a), or as a “pollutant,” subject to §§402 and 306, 33 U. S. C. §§ 1342(a), 1316(a). Within this zone, the law authorizes the environmental agencies to classify material as the one or the other, so long as they act within the bounds of relevant regulations, and provided that the classification, considered in terms of the purposes of the statutes and relevant regulations, is reasonable. This approach reflects the difficulty of applying §§402 and 306 literally to every new-source-related discharge of a “pollutant.” The Environmental Protection Agency (EPA) applies §306 new source “performance standards” to a wide variety of discharges, ranging, for example, from those involved in the processing of apples into apple juice or apple cider, 40 CFR §407.10 (2008); to the manufacturing of cement, §411.10; to the production of fresh meat cuts by a meatcutter, § 432.60; and to the manufacture of pharmaceutical products by fermentation, §439.10. See generally 40 CFR pts. 405-471 (containing more than 800 pages of “new source performance” and effluent limitation regulations). At the same time the regulations for any one point source often regulate numerous chemicals, minerals, and other substances produced by that point source; in the case of fermentation products, for example, the regulations provide performance standards for roughly 30 different chemicals. §439.15. These “standards of performance” “reflect the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology ... including, where practicable, a standard permitting no discharge of pollutants.” 33 U. S. C. § 1316(a)(1). To literally apply these performance standards so as to forbid the use of any of these substances as “fill,” even when, say, they constitute no more than trace elements in dirt, crushed rock, or sand that is clearly being used as “fill” to build a levee or to replace dirt removed from a lake bottom may prove unnecessarily strict, cf. § 1362(6) (defining “pollutant” to include “rock”), to the point that such application would undermine the objective of §404, which foresees the use of “dredged or fill material” in certain circumstances and with approval of the relevant agencies, § 1344. At minimum, the EPA might reasonably read the statute and the applicable regulations as allowing the use of such material, say, crushed rock, as “fill” in some of these situations. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984); Auer v. Robbins, 519 U. S. 452, 461 (1997). At the same time, I recognize the danger that Justice Ginsburg warns against, namely, that “[w]hole categories of regulated industries” might “gain immunity from a variety of pollution-control standards,” if, say, a § 404-permit applicant simply adds “sufficient solid matter” to a pollutant “to raise the bottom of a water body,” thereby turning a “pollutant” governed by § 306 into “fill” governed by § 404. Post, at 302 (dissenting opinion). Yet there are safeguards against that occurring. For one thing, as the Court recognizes, see ante, at 275, it is not the case that any material that has the “ ‘effect of... [c]hanging the bottom elevation’ ” of the body of water is automatically subject to §404, not §402. The EPA has never suggested that it would interpret the regulations so as to turn § 404 into a loophole, permitting evasion of a “performance standard” simply because a polluter discharges enough pollutant to raise the bottom elevation of the body of water. For another thing, even where a matter is determined reasonably to be “fill” and consequently falls within §404, the EPA can retain an important role in the permitting process. That is because the EPA may veto any §404 plan that it finds has an “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas .. ., wildlife, or recreational areas.” § 1344(c). Finally, the EPA’s decision not to apply § 306, but to allow permitting to proceed under § 404, must be a reasonable decision; and court review will help ensure that is so. 5 U. S. C. § 706. In these cases, it seems to me that the EPA’s interpretation of the statute as permitting the EPA/Corps of Engineers “fill” definition to apply to the cases at hand is reasonable, hence lawful. Lower Slate Lake, located roughly three miles from the Kensington Gold Mine, is 51 feet deep, 800 feet wide, and 2,000 feet long; downstream from the lake is Slate Creek. Faced with a difficult choice between creating a huge pile of slurry on nearby wetlands or using part of the lake as a storage facility for mine tailings, see App. 294a-298a; see also ante, at 268-270, the EPA arrived at a compromise. On the one hand, it would treat mine tailings placed directly into the lake as “fill” under the §404 permitting program. App. 144a. The tailings, the EPA recognized, would have the “immediate effect of filling the areas of water into which they are discharged.” Ibid. But it would also treat any spillover of the tailings, or chemicals from the tailings, into any nearby waterway, most particularly Slate Creek (running out of Slate Lake) as requiring a § 402 permit. The EPA’s §306 “performance standard” would apply and that standard insists upon no discharge of process wastewater at all. Id., at 145a; see also 40 CFR § 440.104(b). The EPA reached this result because it recognized that, even though pollutants discharged into the creek might come “in the form of suspended and settleable solids,” such solids would “have, at most, an incidental filling effect.” App. 145a. The EPA thereby sought to apply the distinction it had previously recognized between discharges that have the immediate effect of raising the bottom elevation of water, and those that only have the “associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants.” See 67 Fed. Reg. 31135 (2002) (concluding that §402 applies to the latter); see also Brief for G. Tracy Mehan III as Amicus Curiae 22-23. I cannot say whether the EPA’s compromise represents the best overall environmental result; but I do believe it amounts to the kind of detailed decision that the statutes delegate authority to the EPA, not the courts, to make (subject to the bounds of reasonableness). I believe the Court’s views are consistent with those I here express. And with that understanding, I join its opinion.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Justice Scalia, concurring in part and concurring in the judgment. I join the opinion of the Court, except for its protestation, ante, at 283-284, that it is not according Chevron deference to the reasonable interpretation set forth in the memorandum sent by the Director of the Environmental Protection Agency’s (EPA) Office of Wetlands, Oceans and Watersheds, to the Director of the EPA’s regional Office of Water with responsibility over the Coeur Alaska mine — an interpretation consistently followed by both the EPA and the Corps of Engineers, and adopted by both agencies in the proceedings before this Court. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The opinion purports to give this agency interpretation “a measure of deference” because it involves an interpretation of “the agencies’ own regulatory scheme” and “ ‘the regulatory regime,’ ” ante, at 284 (citing Auer v. Robbins, 519 U. S. 452, 461 (1997)). Auer, however, stands only for the principle that we defer to an agency’s interpretation of its own ambiguous regulation. But it becomes obvious from the ensuing discussion that the referenced “regulatory scheme,” and “regulatory regime” for which the Court accepts the agency interpretation, includes not just the agencies’ own regulations but also (and indeed primarily) the conformity of those regulations with the ambiguous governing statute, which is the primary dispute here. Surely the Court is not adding to our already inscrutable opinion in United States v. Mead Corp., 533 U. S. 218 (2001), the irrational fillip that an agency position which otherwise does not qualify for Chevron deference does receive Chevron deference if it clarifies not just an ambiguous statute but also an ambiguous regulation. One must conclude, then, that if today’s opinion is not according the agencies’ reasonable and authoritative interpretation of the Clean Water Act Chevron deference, it is according some new type of deference — perhaps to be called in the future Coeur Alaska deference— which is identical to Chevron deference except for the name. The Court’s deference to the EPA and the Corps of Engineers in today’s cases is eminently reasonable. It is quite impossible to achieve predictable (and relatively litigation-free) administration of the vast body of complex laws committed to the charge of executive agencies without the assurance that reviewing courts will accept reasonable and authoritative agency interpretation of ambiguous provisions. If we must not call that practice Chevron deference, then we have to rechristen the rose. Of course the only reason a new name is required is our misguided opinion in Mead, whose incomprehensible criteria for Chevron deference have produced so much confusion in the lower courts that there has now appeared the phenomenon of Chevron avoidance — the practice of declining to opine whether Chevron applies or not. See Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1464 (2005). I favor overruling Mead. Failing that, I am pleased to join an opinion that effectively ignores it. Compare, e. g., Kruse v. Wells Fargo Home Mortgage, Inc., 383 F. 3d 49, 61 (CA2 2004) (according Chevron deference to policy statements issued by Department of Housing and Urban Development), and Schuetz v. Banc One Mortgage Corp., 292 F. 3d 1004, 1012 (CA9 2002) (same), with Krzalic v. Republic Title Co., 314 F. 3d 875,881 (CA7 2002) (denying Chevron deference to same policy statements). Compare American Federation of Govt. Employees, AFL-CIO, Local 446 v. Nicholson, 475 F. 3d 341, 353-354 (CADC 2007) (according Chevron deference to informal adjudication by Department of Veterans Affairs), with American Federation of Govt. Employees, AFL-CIO, Local 2152 v. Principi, 464 F. 3d 1049, 1057 (CA9 2006) (denying Chevron deference to similar action). It is not even clear that notiee-and-comment rulemaking will assure Chevron deference to agency interpretation of an ambiguous statute. See Ruble’s Costume Co. v. United States, 337 F. 3d 1350, 1355 (CA Fed. 2003) (customs classification).

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Justice Ginsburg, with whom Justice Stevens and Justice Souter join, dissenting. Petitioner Coeur Alaska, Inc., proposes to discharge 210,000 gallons per day of mining waste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest. The “tailings slurry” would contain concentrations of aluminum, copper, lead, and mercury. Over the life of the mine, roughly 4.5 million tons of solid tailings would enter the lake, raising the bottom elevation by 50 feet. It is undisputed that the discharge would kill all of the lake’s fish and nearly all of its other aquatic life. Coeur Alaska’s proposal is prohibited by the Environmental Protection Agency (EPA) performance standard forbidding any discharge of process wastewater from new “froth-flotation” mills into waters of the United States. See 40 CFR § 440.104(b)(1) (2008). Section 306 of the Clean Water Act directs EPA to promulgate such performance standards, 33 U. S. C. § 1316(a), and declares it unlawful for any dis-charger to violate them, § 1316(e). Ordinarily, that would be the end of the inquiry. Coeur Alaska contends, however, that its discharge is not subject to EPA’s regulatory regime, but is governed, instead, by the mutually exclusive permitting authority of the Army Corps of Engineers (Corps). The Corps has authority, under § 404 of the Act, 3 U. S. C. § 1344(a), to issue permits for discharges of “dredged or fill material.” By regulation, a discharge that has the effect of raising a water body’s bottom elevation qualifies as “fill material.” See 33 CFR § 323.2(e) (2008). Discharges properly within the Corps’ permitting authority, it is undisputed, are not subject to EPA performance standards. See ante, at 284; Brief for Petitioner Coeur Alaska 26; Brief for Respondent Southeast Alaska Conservation Council et al. 37. The litigation before the Court thus presents a single question: Is a pollutant discharge prohibited under § 306 of the Act eligible for a § 404 permit as a discharge of fill material? In agreement with the Court of Appeals, I would answer no. The statute’s text, structure, and purpose all mandate adherence to EPA pollution-control requirements. A discharge covered by a performance standard must be authorized, if at all, by EPA. I A Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity” of the waters of the United States. 33 U. S. C. § 1251(a). “The use of any river, lake, stream or ocean as a waste treatment system,” the Act’s drafters stated, “is unacceptable.” S. Rep. No. 92-414, p. 7 (1971). Congress announced in the Act itself an ambitious objective: to eliminate, by 1985, the discharge of all pollutants into the Nation’s navigable waters. 33 U. S. C. § 1251(a). In service of its goals, Congress issued a core command: “[T]he discharge of any pollutant by any person shall be unlawful,” except in compliance with the Act’s terms. § 1311(a). The Act’s substantive requirements — housed primarily in Subchapter III, “Standards and Enforcement”— establish “a comprehensive regulatory program supervised by an expert administrative agency,” EPA. Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). See also 33 U. S. C. § 1251(d) (“Except as otherwise expressly provided . . . , the Administrator of [EPA] shall administer this [Act].”). The Act instructs EPA to establish various technology-based, increasingly stringent effluent limitations for categories of point sources. E. g., §§1311, 1314. These limitations, formulated as restrictions “on quantities, rates, and concentrations of chemical, physical, biological, and other constituents,” §1362(11), were imposed to achieve national uniformity among categories of sources. See, e. g., E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112, 129-130 (1977). The limitations for a given discharge depend on the type of pollutant and source at issue. Of key importance, new sources must meet stringent “standards of performance” adopted by EPA under § 306(e). That section makes it “unlawful for any . . . new source to operate ... in violation of” an applicable performance standard. 33 U. S. C. § 1316(e) (emphasis added). In line with Congress’ aim “to insure . . . ‘maximum feasible control of new sources,’ ” du Pont, 430 U. S., at 138, the preferred standard for a new source is one “ ‘permitting no discharge of pollutants,’ ” id., at 137-138 (quoting 33 U. S. C. § 1316(a)(1); emphasis added). Moreover, new sources, unlike existing sources, are not eligible for EPA-granted variances from applicable limitations. 430 U. S., at 138. In 1982, EPA promulgated new source performance standards for facilities engaged in mining, including those using a froth-flotation milling process. See Ore Mining and Dressing Point Source Category Effluent Limitations Guidelines and New Source Performance Standards, 47 Fed. Reg. 54598. Existing mills, EPA found, were already achieving zero discharge; it was therefore practicable, EPA concluded, for new mills to do as well. Id., at 54602. Accordingly, under 40 CFR § 440.104(b)(1), new mines using the froth-flotation method, as Coeur Alaska proposes to do, may not discharge wastewater directly into waters of the United States. B The nationwide pollution-control requirements just described are implemented through the National Pollution Discharge Elimination System (NPDES), a permitting scheme set forth in § 402 and administered by EPA and the States. The NPDES is the linchpin of the Act, for it transforms generally applicable effluent limitations into the individual obligations of each discharger. EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205 (1976). The discharge of a pollutant is generally prohibited unless the source has obtained an NPDES permit. E. g., EPA v. National Crushed Stone Assn., 449 U. S. 64, 71 (1980) (“Section 402 authorizes the establishment of the [NPDES], under which every discharger of pollutants is required to obtain a permit.”). The Act also establishes a separate permitting scheme, administered by the Corps, for discharges of “dredged or fill material.” 33 U. S. C. § 1344(a). Section 404 hews to the Corps’ established expertise in matters of navigability and construction. The §404 program does not implement the uniform, technology-based pollution-control standards set out, inter alia, in § 306. Instead, § 404 permits are subject to regulatory guidelines based generally on the impact of a discharge on the receiving environment. See § 1344(b); ante, at 269. As the above-described statutory background indicates, Coeur Alaska’s claim to a § 404 permit carries weighty implications. If eligible for that permit, Coeur Alaska can evade the exacting performance standard prescribed by EPA for froth-flotation mills. It may, instead, use Lower Slate Lake “as the settling pond and disposal site for the tailings.” App. 360a (Corps’ Record of Decision). II Is a pollutant discharge prohibited under § 306(e) eligible to receive a § 404 permit as a discharge of fill material? All agree on preliminary matters. Only one agency, the Corps or EPA, can issue a permit for the discharge. See ante, at 274, 286. Only EPA, through the NPDES program, issues permits that implement § 306. See supra, at 297-298. Further, § 306(e) and EPA’s froth-flotation performance standard, unless inapplicable here, bar Coeur Alaska’s proposed discharge. See ante, at 278-279. No part of the statutory scheme, in my view, calls into question the governance of EPA’s performance standard. The text of § 306(e) states a clear proscription: “[I]t shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U. S. C. § 1316(e). Under the standard of performance relevant here, “there shall be no discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR § 440.104(b)(1). The Act imposes these requirements without qualification. Section 404, stating that the Corps “may issue permits” for the discharge of “dredged or fill material,” does not create an exception to § 306(e)’s plain command. 33 U. S. C. § 1344(a). Cf. ante, at 276. Section 404 neither mentions §306 nor states a contrary requirement. The Act can be home to both provisions, with no words added or omitted, so long as the category of “dredged or fill material” eligible for a § 404 permit is read in harmony with § 306. Doing so yields a simple rule: Discharges governed by EPA performance standards are subject to EPA’s administration and receive permits under the NPDES, not § 404. This reading accords with the Act’s structure and objectives. It retains, through the NPDES, uniform application of the Act’s core pollution-control requirements, and it respects Congress’ special concern for new sources. Leaving pollution-related decisions to EPA, moreover, is consistent with Congress’ delegation to that Agency of primary responsibility to administer the Act. Most fundamental, adhering to § 306(e)’s instruction honors the overriding statutory goal of eliminating water pollution, and Congress’ particular rejection of the use of navigable waters as waste disposal sites. See supra, at 298-301. See also 33 U. S. C. § 1324 (creating “clean lakes” program requiring States to identify and restore polluted lakes). The Court’s reading, in contrast, strains credulity. A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility. Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards. The loophole would swallow not only standards governing mining activities, see 40 CFR pt. 440 (effluent limitations and new source performance standards for ore mining and dressing); id., pt. 434 (coal mining); id., pt. 436 (mineral mining), but also standards for dozens of other categories of regulated point sources, see, e. g., id., pt. 411 (cement manufacturing); id., pt. 425 (leather tanning and finishing); id., pt. 432 (meat and poultry products processing). See also Brief for American Rivers et al. as Amici Curiae 26-27 (observing that discharges in these categories “typically contain high volumes of solids”). Providing an escape hatch for polluters whose discharges contain solid matter, it bears noting, is particularly perverse; the Act specifically focuses on solids as harmful pollutants. See 33 U. S. C. § 1314(a)(4) (requiring EPA to publish information regarding “conventional pollutants,” including “suspended solids”); Brief for American Rivers, supra, at 28-29, and n. 18 (identifying over 50 effluent limitations that restrict total suspended solids). Congress, we have recognized, does not “alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 467-468 (2001). Yet an alteration of that kind is just what today’s decision imagines. Congress, as the Court reads the Act, silently upended, in an ancillary permitting provision, its painstaking pollution-control scheme. See ante, at 281. Congress did so, the Court holds, notwithstanding the lawmakers’ stated effort “to restore and maintain the chemical, physical, and biological integrity” of the waters of the United States, 33 U. S. C. § 1251(a); their assignment to EPA of the Herculean task of setting strict effluent limitations for many categories of industrial sources; and their insistence that new sources meet even more ambitious standards, not subject to exception or variance. Would a rational legislature order exacting pollution limits, yet call all bets off if the pollutant, discharged into a lake, will raise the water body’s elevation? To say the least, I am persuaded, that is not how Congress intended the Clean Water Act to operate. In sum, it is neither necessary nor proper to read the statute as allowing mines to bypass EPA’s zero-discharge standard by classifying slurry as “fill material.” The use of waters of the United States as “settling ponds” for harmful mining waste, the Court of Appeals correctly held, is antithetical to the text, structure, and purpose of the Clean Water Act. * * * For the reasons stated, I would affirm the judgment of the Ninth Circuit. Whether aquatic life will eventually be able to inhabit the lake again is uncertain. Compare ante, at 269, with App. 201a-202a and Southeast Alaska Conservation Council v. United States Army Corps of Engineers, 486 F. 3d 638, 642 (CA9 2007). In addition, the Act requires States to institute comprehensive water quality standards for intrastate waters, subject to EPA approval. See § 1313. This program supplements the technology-based standards, serving to “prevent water quality from falling below acceptable levels” even when point sources comply with effluent limitations. EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205, n. 12 (1976). Even the provision allowing the President to exempt federal installations from compliance with the Act’s requirements — “if he determines it to be in the paramount interest of the United States to do so” — does not extend to new source standards: “[N]o exemption may be granted from the requirements of section [306] or [307] of this [Act].” 33 U. S. C. § 1323(a). The Court asserts that “numerous difficulties” will ensue if a discharge governed by a new source performance standard is ineligible for a §404 permit. Ante, at 276. Namely, the Court notes, the discharger will have to determine whether a performance standard applies to it. Ante, at 277. That is not only the usual inquiry under the Clean Water Act; it is one Coeur Alaska answered, without apparent difficulty, when it sought and obtained an EPA permit for the proposed discharge from the lake into a downstream creek. See ante, at 270. Justice Breyer fears that “litera[l] application]” of performance standards would interfere with efforts “to build a levee or to replace dirt removed from a lake bottom,” and thus “may prove unnecessarily strict.” Ante, at 292 (concurring opinion). His concerns are imaginative, but it is questionable whether they are real. Apple juice processors, meateutters, cement manufacturers, and pharmaceutical producers do not ordinarily build levees — and it is almost inconceivable that they would do so using the waste generated by .their highly specific industrial processes. See, e. g., 40 CFR §411.10 (performance standard for particular cement manufacturing process). Levee construction generally is undertaken by developers or government, entities not subject to performance standards for such a project. This litigation, furthermore, does not illustrate the “difficulty” Justice Breyer perceives. See ante, at 292. Coeur Alaska does not seek to build a levee or return dirt to a lake; it simply wants to use Lower Slate Lake as a waste disposal site. The “safeguards” Justice Breyer identifies are hardly reassuring. See ante, at 293 (concurring opinion). Given today’s decision, it is optimistic to expect that EPA or the courts will act vigorously to prevent evasion of performance standards. Nor is EPA’s veto power under § 404(e) of the Clean Water Act an adequate substitute for adherence to §306. That power — exercised only a dozen times over 36 years encompassing more than 1 million permit applications, see Brief for American Rivers 14— hinges on a finding of “unacceptable adverse effect,” 33 U. S. C. § 1344(e). Destruction of nearly all aquatic life in a pristine lake apparently does not' qualify as “unacceptable.” Reliance on ad hoe vetoes, moreover, undermines Congress’ aim to install uniform water-pollution regulation.

Ohio Valley Environmental Coalition v. Aracoma Coal Co.

Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part. GREGORY, Circuit Judge: OPINION This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as “OVEC”) to the U.S. Army Corps of Engineers (“Corps”) issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations. Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. (2000), the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2000), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (2000). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order. Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were “waters of the United States” and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments. The Corps now appeals these two orders. For the reasons set forth below, we reverse and vacate the district court’s opinion and order of March 23, 2007, and vacate the district court’s injunction. We also reverse the district court’s June 13, 2007, grant of declaratory relief and we remand for further proceedings consistent with this opinion. I. The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as “spoil.” Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (“overburden”) remains in the valley, creating a “valley fill” that buries intermittent and perennial streams in the process. Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or “toe”) of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition. Much of the impact of a valley fill project is felt by headwater streams. Head-water streams are small streams that form the origin of larger streams or rivers, and may be intermittent or ephemeral. Intermittent streams receive their flow from both surface runoff and groundwater discharge, while ephemeral streams rely on major rain or snow events for their flow. The precise role of headwater streams in overall watershed ecology is a matter of some debate in this litigation, as we discuss more below, but all parties agree that these streams perform important ecological functions. OVEC initiated this challenge in September 2005 in the United States District Court for the Southern District of West Virginia, shortly after the Corps issued an individual valley fill permit and accompanying Combined Decision Document (“CDD”) to the Araeoma Coal Company for the Camp Branch Surface Mine project (“Camp Branch”) under its CWA § 404 authority. As the Corps issued subsequent § 404 permits to West Virginia mining operations, the district court allowed OVEC to amend its complaint several times to include the newly issued permits. In addition to the Camp Branch permit, OVEC’s Third Supplemental Complaint raised challenges to the individual § 404 permits issued to the Elk Run Coal Company for the Black Castle Mine (“Black Castle”), and to Alex Energy, Inc., for the Republic No. 1 and Republic No. 2 Surface Mines (“Republic No. 1” and “Republic No. 2”). The Republic No. 1 challenge was ultimately dismissed on ripeness grounds, but a challenge raised in a separate complaint to the individual permit issued to Independence Coal Company for the Laxare East Surface Mine (“Laxare East”) was consolidated with this proceeding. Each of the affected companies intervened as defendants in the action, as did the West Virginia Coal Association. All together, the four challenged permits authorize the creation of 23 valley fills and 23 sediment ponds, and they impact 68,841 linear feet of intermittent and ephemeral streams, or just over 13 miles. For each of the four permits, the Corps prepared Environmental Assessments that concluded that the permitted activity would not result in significant environmental impacts given planned mitigation measures. On that basis, the Corps issued a “Finding of No Significant Impact” for all four permits. OVEC’s Third Supplemental Complaint charged that the Corps’ issuance of the § 404 fill permits for these mining projects violated both substantive and procedural provisions of the CWA and NEPA, and were “arbitrary, capricious, and an abuse of discretion” under the APA. According to OVEC, the Corps was required under NEPA to prepare an Environmental Impact Statement for each of the projects before issuing a permit, given the significant individual and cumulative adverse effects the projects would have on water quality, aquatic and terrestrial ecosystems and habitats, species survival and diversity, crucial stream functions, forests, and the aesthetic value of the destroyed mountains. Similarly, OVEC claimed that the Corps failed to properly determine the adverse individual and cumulative impacts to the affected aquatic ecosystems in accordance with the CWA and the Corps’ CWA Guidelines. Trial in the case was originally scheduled for June 20, 2006, but on June 16, on the Corps’ motion, the district court remanded the permits to the Corps and stayed the proceedings. Almost a month later, the Corps reissued the permits, but this time with a supplemented administrative record that incorporated new comments from the public and the parties, including the reports prepared by OVEC’s proposed expert witnesses. The district court lifted its stay on July 26, and a six-day bench trial was held in October 2006. The district court granted judgment in favor of the plaintiffs on March 23, 2007, rescinding the permits, enjoining the Corps and Intervenors from taking any action under those permits, and remanding the permits to the Corps for further proceedings consistent with the court’s order. The district court found, inter alia, that the probable impacts of the valley fills would be significant and adverse under both the CWA and NEPA; that the mitigation plans for each permit were not sufficient to compensate for those adverse impacts; that, in each permit, the Corps improperly limited its scope of review under NEPA to look only at the impact on jurisdictional waters rather than the broader impact of the entire valley fill project; and, finally, that the Corps inadequately evaluated the cumulative impacts of the projects. On June 13, 2007, the district court granted summary judgment to OVEC on a separate claim under which the plaintiffs sought a declaratory judgment that the stream segments running from the valley fill toes to the sediment pond embankments are “waters of the United States,” and that the Corps thus did not have authority to permit the discharge of pollutants into these segments with a CWA § 404 permit. According to the district court, mining operators who wished to discharge runoff from the fill into a stream segment needed to obtain a CWA § 402 permit from the EPA or proper state authority. On September 13, 2007, the district court granted, pursuant to Federal Rule of Civil Procedure 54(b), the Interve-nors’ motion for entry of final judgment on the June 13 order. The Corps and Inter-venors filed timely notices of appeal from both the March 23 and June 13 orders. On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations — treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 permitting- — was entitled to deference. Inter-venors have raised these same challenges to the district court’s ruling, but also argue that OVEC’s stream segment claim was barred in the first place under principles of res judicata. OVEC has also filed two motions for judicial notice, asking this Court to take notice of five new permits that the Corps has issued since the district court’s orders were entered. II. We review de novo a district court’s findings on an administrative record. See Crutchfield v. County of Hanover, 325 F.3d 211, 217 (4th Cir.2003). This de novo standard applies to questions of both law and fact. See id. Both NEPA and CWA claims are subject to judicial review under the APA, 5 U.S.C. § 706 (2006). For all agency actions, a reviewing court must set aside the action if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). III. A complex statutory framework under-girds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion. Thus, we begin with a brief overview of the relationship of the four statutes that affect the scope of the Corps’ authority to issue fill permits in connection with mountaintop coal mining operations: the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1201 et seq. (2000), the CWA, NEPA, and the APA. A. Congress passed SMCRA in 1977 to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. § 1202(a) (2000). Congress also recognized a need, however, to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f) (2000). In striking this balance, SMCRA utilizes a “cooperative federalism” approach, allocating responsibility for the regulation of surface coal mining among both state and federal agencies. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 288 (4th Cir.2001). Under SMCRA, states have “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” on non-Federal lands, so long as their regulatory program has been approved by the Secretary of the Interior as satisfying the Act’s minimum requirements. 30 U.S.C. § 1253 (2000). Once a state’s SMCRA program has been approved, anyone wishing to engage in surface coal mining operations within the state must first obtain a permit from the state’s regulatory authority. 30 U.S.C. § 1256(a) (2000). In West Virginia, the federally approved regulatory authority is the Department of Environmental Protection (‘WVDEP”). Regulation of the disposal of excess spoil material from surface coal mining operations is within SMCRA’s purview. As part of its environmental protection performance standards, SMCRA requires that all excess spoil material from surface mining operations be disposed of “in a controlled manner ... and in such a way to assure mass stability and to prevent mass movement.” 30 U.S.C. § 1265(b)(22)(A) (2000). The Act clearly contemplates that valley fills will be used in the disposal process. See 30 U.S.C. § 1265(b)(22)(D) (2000) (requiring that, where the disposal area contains “springs, natural water courses, or wet weather seeps ... lateral drains [must be] constructed from the wet areas to the main under-drains in such a manner that filtration of the water into the spoil pile will be prevented.”); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir.2003) (“[I]t is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States.... ”). B. An SMCRA permit by itself, however, does not suffice to allow a mine operator to construct a valley fill in conjunction with its mountaintop removal activities. Mining companies must also obtain permits certifying their project’s compliance with the CWA. The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by eliminating “the discharge of pollutants into the navigable waters.” 33 U.S.C. § 1251(a)(2000). In the surface mining context, three sections of the CWA are relevant to the permitting process. First, a mine operator applying for a federal permit under the CWA must comply with CWA § 401, 33 U.S.C. § 1341 (2000), by providing the federal permitting agency with a certification from the proper state authority — in this case, WVDEP— stating that any discharge from the mine site will comply with all applicable water quality standards. Next, the mine operator must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit pursuant to CWA § 402, 33 U.S.C. § 1342 (2000), if their project involves the discharge of a pollutant from a point source within the mining operation into navigable waters. 33 U.S.C. §§ 1342, 1362(12) (2000). The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (2000). The release of treated waters from sediment ponds back into a stream, for example, require a CWA § 402 NPDES permit. States wishing to administer their own NPDES program must be approved by the Environmental Protection Agency (“EPA”) before they can begin issuing § 402 permits. 33 U.S.C. § 1342(c) (2000). West Virginia has had an EPA-approved § 402 program since 1982. See Approval of West Virginia’s NPDES Program, 47 Fed. Reg. 22, 363 (May 24,1982). Finally, and most importantly for the purposes of this litigation, surface mining projects that intend to dispose of excess spoil from their mining operations in jurisdictional waters must obtain a CWA § 404, 33 U.S.C. § 1344 (2000), permit from the Corps. Section 404 permits allow “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C.A. § 1344(a) (2008). The Corps uses § 404 permits to authorize the fill activity itself, as well as the construction of downstream sediment ponds. In issuing § 404 permits, the Corps follows the § 404(b)(1) Guidelines (“CWA Guidelines”) promulgated by the Environmental Protection Agency (“EPA”) pursuant to 33 U.S.C. § 1344(b)(1) (2008), and incorporated by the Corps into its own regulations. See 40 C.F.R. pt. 230 (2008); 33 C.F.R. § 320.2(f) (2008). The Guidelines prohibit discharges that “will cause or contribute to significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2008). A discharge contributes to significant degradation if it has “[significantly adverse effects” on human health or welfare, on aquatic life and other wildlife dependent on aquatic ecosystems, on aquatic ecosystem diversity, productivity, and stability, or on recreational, aesthetic, and economic values. Id. The Corps’ § 404 permit evaluation process must also include a public interest review component, in which “[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1) (2008). The Corps’ decision to issue a permit “should reflect the national concern for both protection and utilization of important resources.” Id. Ultimately, the § 404 permitting process requires extensive review and coordination with numerous federal and state agencies, as well as significant consideration of the public interest. C. Under NEPA, federal agencies must take a “hard look” at the potential environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Because NEPA is a procedural and not a results-driven statute, even agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs. Id. NEPA requires only that federal agencies prepare an Environmental Impact Statement for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (2000). Significance is determined by evaluating both the context of the action and the intensity, or severity, of the impact. 40 C.F.R. § 1508.27 (2008). Where it is not readily discernible how significant the environmental effects of a proposed action will be, federal agencies may prepare an Environmental Assessment (“EA”). 40 C.F.R. § 1501.4(b) (2008). An EA is a “concise public document ... that serves to ... [bjriefiy provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact [(“FONSI”)].” 40 C.F.R. § 1508.9(a)(1) (2008); see also 33 C.F.R. §§ 230.10-230.11 (2008) (explaining the Corps’ requirements for an EA). Even where an EA determines that a proposed action will have a significant environmental impact, an agency may avoid issuing an EIS where it finds that mitigating measures can be taken to reduce the environmental impact of the project below the level of significance. Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 62 (4th Cir.1991). In these situations, the agency can issue a “so-called mitigated FONSI.” Spiller v. White, 352 F.3d 235, 241 (5th Cir.2003) (internal quotations omitted). D. Claims challenging federal agency action under the CWA and NEPA are subject to judicial review under the APA. 5 U.S.C. § 702 (2006); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992). In issuing the § 404 permits challenged here, the Corps was engaged in informal (“notice and comment”) rule-making. 33 U.S.C. § 1344(a) (2000); Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 496 (4th Cir.2005). Such informal rulemaking, done pursuant to Section 4 of the APA, 5 U.S.C. § 553 (2006), must be reviewed under Section 10 of the APA, 5 U.S.C. § 706(2) (2006). Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976). Section 10 of the APA establishes that, as a general rule, “agency action, findings, and conclusions” will be set aside only when they are “found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (2000); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid. Natural Res. Def. Council, Inc. v. EPA 16 F.3d 1395, 1400 (4th Cir.1993). Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, “a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. “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.” Id. Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes “a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); accord Ohio River Valley Envtl. Coal, Inc. v. Kempthorne, 473 F.3d 94, 102-03 (4th Cir.2006). The “arbitrary and capricious” standard is not meant to reduce judicial review to a “rubber-stamp” of agency action. Ethyl Corp., 541 F.2d at 34. While the standard of review is narrow, the court must nonetheless engage in a “searching and careful” inquiry of the record. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. But, this scrutiny of the record is meant primarily “to educate the court” so that it can “understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made.” Ethyl Corp., 541 F.2d at 36. IV. With this statutory guidance in mind, we turn now to the substance of this appeal, first taking up the issues on appeal concerning the district court’s March 23, 2007, opinion and order. A. The Corps and Intervenors (collectively “Appellants”) claim on appeal that the Corps’ decision about the scope of its NEPA analysis for each of these permits was entitled to deference as a reasonable interpretation of its own regulations. The district court found that the Corps acted contrary to its regulations by limiting the scope of its NEPA analysis to the impact of the filling of jurisdictional waters and by not looking at the larger environmental impacts of the valley fill as a whole. Agreeing with the district court, OVEC argues that the Corps’ NEPA analysis should have considered all environmental impacts caused by the fill, including the impacts to the upland valleys where the fills will be located. The Corps counters that it reasonably determined that, under its regulations, its jurisdictional reach was limited to the affected waters and adjacent riparian areas and that this determination is entitled to deference. Because we are asked here to review the Corps’ interpretation of its own regulations, our review is cabined to assessing the reasonableness of that interpretation. This kind of review is highly deferential, with the agency’s interpretation “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotations omitted); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (noting that, when reviewing an agency’s interpretation of its own regulation, “[t]he reviewing court does not have much leeway”). In applying this principle, also known as “Auer deference” or “Seminole Rock deference,” we must first determine whether the regulation itself is unambiguous; if so, its plain language controls. See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003). If ambiguous, however, Auer/Seminole Rock deference is applied. See Christensen, 529 U.S. at 588, 120 S.Ct. 1655; Deaton, 332 F.3d at 709. NEPA requires federal agencies to take a “hard look” at the environmental consequences of their actions, but the statute does not specify how an agency should determine the scope of its NEPA analysis. Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1115 (9th Cir.2000). The Corps’ implementing regulations, however, specify that the proper scope of analysis for NEPA review is “to address the impacts of the specific activity requiring a DA [Department of the Army] permit and those portions of the entire project over which the [Corps] district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). OVEC’s challenge to the scope of the Corps’ NEPA review rests largely on its misapprehension of what constitutes the “specific activity” requiring a permit. The Corps’ regulations are unambiguous in requiring a district engineer to address the impacts of the “specific activity requiring a DA [Department of the Army] permit” in its NEPA analysis. Id. According to OVEC, the Corps’ § 404 permit is a permit for the entire valley fill, down to the last shovelful of dirt at the edge of the valley. But § 404 is itself unambiguous about what the Corps is authorized to permit under the CWA: the Corps “may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (2000) (emphasis added). The specific activity that the Corps is permitting when it issues a § 404 permit is nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill. In fact, the Corps has no legal authority to prevent the placement of fill material in areas outside of the waters of the United States. All other fill activity falls under the exclusive jurisdiction of the WVDEP, as the federally approved state SMCRA regulatory authority. Of course, even if the “specific activity” being permitted under CWA § 404 is the filling of valley streams, the Corps could still be required under NEPA to consider larger impacts of the broader valley fill project if the Corps is found to have “sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). In eases where the permitted activity is only one part of a larger project, the regulations specify that the Corps has “control and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are eases where the environmental consequences of the larger project are essentially products of the Corps permit action.” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008) (emphasis added). The regulations go on to suggest several factors to be considered in making this determination, including: (i) Whether or not the regulated activity comprises “merely a link” in a corridor type project (e.g., a transportation or utility transmission project). (ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity. (iii) The extent to which the entire project will be within Corps jurisdiction. (iv) The extent of cumulative Federal control and responsibility. Id. OVEC’s argument that the Corps has sufficient control and responsibility over the larger valley fill to warrant its consideration of the environmental impacts of the entire valley fill project has some intuitive appeal. As OVEC points out, “[t]he Corps could not seriously contend that, if the § 404 permit for the stream-covering portions of the fill were denied, the applicants could build the remainder of the fills with a cutout around the streams. That could be dangerous. The valley fill is designed for stability as an integral unit.” (Appellees’ Br. at 35 n. 2.) Undoubtedly, obtaining a § 404 permit is a “small but necessary” component of the overall upland project. United States Army Corps of Engineers, Combined Decision Document for the Camp Branch Surface Mine Project 4 (July 6, 2006) [hereinafter Camp Branch CDD ]; see also United States Army Corps of Engineers, Combined Decision Document for the Black Castle Surface Mine Project 6 (July 18, 2006) [hereinafter Black Castle CDD ]; United States Army Corps of Engineers, Combined Decision Document for the Laxare East Surface Mine Project 7 (July 18, 2006) [hereinafter Laxare East CDD ]. But the fact that the Corps’ § 404 permit is central to the success of the valley-filling process does not itself give the Corps “control and responsibility” over the entire fill. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1116-17 (9th Cir.2000) (observing that the fact .that construction of a development project covering hundreds of acres was dependent on a Corps § 404 permit to fill sixteen acres of wetlands did not suffice to make the Corps responsible for including the entire project in the scope of its NEPA analysis). The Corps’ jurisdiction under CWA § 404 is limited to the narrow issue of the filling of jurisdictional waters. To say that the Corps has a level of control and responsibility over the entire valley fill project such that “the environmental consequences of the larger project are essentially products of the Corps permit action,” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), is to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of surface mining operations prescribed by SMCRA. Under SMCRA, the state of West Virginia has “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations.” 30 U.S.C. § 1253 (2000). Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills fall under the SMCRA rubric. See 30 U.S.C. § 1265(b)(22)(D) (2000) (requiring that lateral drains be constructed where a spoil disposal area contains “springs, natural water courses or wet weather seeps”); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir.2003) (“[I]t is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States.... ”). As part of its federally approved SMCRA regulatory program, the WVDEP surface mine permitting process examines “[ejvery detail of the manner in which a coal mining operation is to be conducted .... including] the plan for disposal of excess spoil for surface ... mining opera-tions_” (Br. for the W. Va. Dep’t of Commerce and the W. Va. Dep’t of Envtl. Prot. as Amici Curiae Supporting Appellants at 13.) As the Corps explains in its permits, “the social and environmental impacts associated with surface coal mining and reclamation operations are appropriately analyzed by WVDEP in this context before that agency decides whether to permit the mining operation under SMCRA.” Camp Branch CDD 4; Black Castle CDD 6; Laxare East CDD 7; United States Army Corps of Engineers, Combined Decision Document for the Republic No. 2 Surface Mine Project 6 (July 6, 2006) [hereinafter Republic No. 2 CDD ]. A SMCRA permit applicant must provide detailed information about possible environmental consequences of the proposed operations, as well as assurances that damage to the site will be prevented or minimized during mining and substantially repaired after mining has come to an end. The WVDEP must ensure compliance with SMCRA’s environmental protection performance standards. See 30 U.S.C. §§ 1257,1260,1265 (2000). If the Corps, by issuing a § 404 permit, can turn a valley fill project “into a Federal action,” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), the WVDEP’s regulation of the fill process becomes at best duplica-tive, and, at worst, meaningless. NEPA plainly is not intended to require duplication of work by state and federal agencies. See 40 C.F.R. § 1506.2(b) (“Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements....”). The Corps’ general regulatory approach echoes this sentiment. See 33 C.F.R. § 320.1(a)(5) (2008) (“The Corps believes that state and federal regulatory programs should complement rather than duplicate one another.”); 33 C.F.R. § 337.1 (2008) (noting that, in issuing public notice for projects involving the discharge of fill material into jurisdictional waters, “[district engineers are encouraged to develop procedures to avoid unnecessary duplication of state agency procedures”). SMCRA also calls for a coordinated and non-duplicative approach to environmental review. See 30 U.S.C. § 1253(a)(6) (2000) (requiring that a state SMCRA program establish “for the purposes of avoiding duplication, ... a process for coordinating the review and issuance of permits for surface coal mining and reclamation operations with any other Federal or State permit process applicable to the proposed operations”). While SMCRA’s provisions should not be construed as “superseding, amending, modifying, or repealing” the requirements of NEPA or the CWA, 30 U.S.C. § 1292(a) (2000), neither should NEPA be construed to require the Corps to essentially federalize an environmental review process that has already been delegated to federally approved state programs. See Wetlands Action Network, 222 F.3d at 1117 (noting, in support of its finding that the Corps’ NEPA analysis for a wetlands-filling permit need not include the effects of the larger development project, that state regulations control the design of the project and that the larger project was already subject to extensive state environmental review); Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394, 401 (9th Cir.1989) (“We, finally, draw comfort from the fact that ordinary notions of efficiency suggest a federal environmental review should not duplicate competently performed state environmental analyses.”). In Department of Transportation v. Public Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), the Supreme Court rejected the idea that “an agency’s action is considered a cause of an environmental effect [for purposes of NEPA] even when the agency has no authority to prevent the effect.” The Court instructed that proximate causation, rather than “but for” causation, was the relevant measure of the causal relationship between the agency action and the environmental effects. 541 U.S. at 767, 124 S.Ct. 2204. In engaging in this proximate cause analysis, “ ‘courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.’ ” Id. (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 n. 7, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983)). But for the Corps’ § 404 permit, a valley fill could not be built; yet it is WVDEP, and not the Corps, that has “control and responsibility” over all aspects of the valley fill projects beyond the filling of jurisdictional waters. Thus, under the plain language of the regulation, activity beyond the filling of jurisdictional waters is not within the Corps’ “control and responsibility” because upland environmental effects are “not essentially a product of Corps action,” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008). Even if we credit OVEC’s arguments regarding the Corps’ control and responsibility over the greater valley fill project as a plausible construction of the Corps’ regulation, we must still deem the regulation “ambiguous,” and the Corps’ interpretation would be entitled to deference as long as it is not “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotations omitted); see also Seminole Rock, 325 U.S. at 413-14, 65 S.Ct. 1215; Kentuckians for the Commonwealth, 317 F.3d at 439. In the case of each of the challenged permits, the Corps’ engineers reasonably determined that a scope of NEPA analysis extending beyond the Corps’ limited jurisdiction to include environmental effects on upland areas would encroach on the regulatory authority of WVDEP, which administers the state’s SMCRA program and is responsible for determining the social and environmental impacts associated with surface mining operations. Camp Branch CDD 6-7; Black Castle CDD 5-7; Laxare East CDD 6-8; Republic No. 2 CDD 4-7. Thus the Corps did not act arbitrarily or capriciously in determining the scope of its NEPA analysis. B. The Corps next challenges the district court’s finding that the Corps failed to adequately support its mitigated FONSIs under NEPA and its findings of no significant degradation to waters of the United States under the CWA. The Corps takes issue with three areas in which the district court found the Corps’ findings to be lacking: (1) the Corps’ CWA analysis of the impact of the permitted fills on the structure and function of affected streams; (2) the sufficiency of the proposed mitigation measures for purposes of CWA and NEPA compliance; and (3) the adequacy of the Corps’ NEPA and CWA assessments of cumulative impacts of the proposed fills. In finding fault with the Corps’ conclusions, the district court failed to heed the admonition of Citizens of Overton Park that, in reviewing agency action, “[t]he court is not empowered to substitute its judgment for that of the agency,” 401 U.S. at 416, 91 S.Ct. 814. Focusing now on the administrative record before us, and viewing the Corps’ findings through the lens of arbitrary and capricious review, we cannot say that its findings regarding stream structure and function, mitigation, or cumulative impacts were an “abuse of discretion” or “not in accordance with law,” 5 U.S.C. § 706(2) (2000). 1. The Corps’ CWA Guidelines require the Corps to “[d]etermine the nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e) (2008). The Guidelines do not expressly define the phrase “function of the aquatic ecosystem,” but they do identify a variety of factors the Corps’ should consider, including “potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities.” 40 C.F.R. § 230.11(e) (2008). In February 1990, the Corps and EPA developed a Memorandum of Agreement to make clear what kind of functional analysis the Corps was required to conduct. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, 55 Fed.Reg. 9210 (Mar. 12, 1990) [hereinafter “MOA”]. The MOA sets out a common approach for evaluating stream function, calling for functional values to be assessed “by applying aquatic site assessment techniques generally recognized by experts in the field and/or the best professional judgment of Federal and State agency representatives, provided such assessments fully consider ecological functions included in the Guidelines.” Id. In 2002, the Corps issued a Regulatory Guidance Letter that called upon Corps district offices “when possible ” to “use functional assessments by qualified professionals to determine impacts and compensatory mitigation requirements.” United States Army Corps of Engineers Regulatory Guidance Letter, No. 02-2 (Dec. 24, 2002) [hereinafter “RGL 02-02”]. RGL 02-02 provided that assessment techniques should be “generally accepted by experts or the best professional judgment” of federal and state agency representatives. Id. The Corps currently does not have a functional assessment protocol in place for use in West Virginia, though it is in the process of developing one. As a result, the Corps relies on the best professional judgment of its staff to assess aquatic impacts and potential mitigation measures. This generally means assessing stream structure as a surrogate for function. OVEC argues that the plain language of the Guidelines requires that the Corps analyze both the structural and the functional effects of fill permits on the affected streams. In their view, this means that a full functional assessment is required. The Corps’ failure to complete such an assessment, OVEC continues, is inconsistent with the plain language of its regulation, and the Corps’ substitute method of using its “best professional judgment” was arbitrary and capricious because it lacked any objective standards. Appellants argue that because the CWA Guidelines provide no definition of “function” or any specific methodology for evaluating function, the Corps’ interpretation and implementation of the regulation is entitled to deference. According to Appellants, the methodologies used by the Corps were an effective surrogate for functional assessment, and these techniques are compliant with the Guidelines, the MOA, and RGL 02-02. The district court agreed with Appellants that a functional assessment was not required and that the Corps was entitled to deference on how to measure stream structure and function. It further found that the Corps was entitled to use its “best professional judgment” in accordance with the MOA and RGL 02-02 in evaluating functional loss. Nonetheless, the court concluded that, even under a “best professional judgment” standard, the Corps was obligated, and failed, to fully assess all ecological functions; to take a “hard look” at the evidence; and, to provide a reasoned basis for its conclusions. Based on our review of the administrative record, however, we cannot say that the Corps’ assessments of stream functions in the challenged permits were arbitrary and capricious. Contrary to OVEC’s position that the CWA Guidelines mandate a full functional assessment, the Guidelines in fact offer no definition of the word “function” or any explanation of how “structure” and “function” are to be assessed. The MOA and RGL 02-02 attempt to fill this gap by encouraging use of a functional assessment but allowing Corps engineers to use their best professional judgment when such an assessment is not possible. An agency’s interpretation of its own regulations is due significant deference, Kentuckians for the Commonwealth Inc., 317 F.3d at 439, and the MOA/RGL 02-02 approach does not appear plainly erroneous or inconsistent with the Guidelines. In this case, the Corps, using its best professional judgment, used stream structure as a surrogate for assessing stream function. Taking Black Castle as an example, the Corps used detailed measurements provided by Intervenors on the benthic macroinvertebrate population to draw conclusions about the level of stream function at the proposed fill sites. Black Castle CDD 102 (“Biological measurements (metrics) represent elements of the structure and function of the bottom-dwelling macroinvertebrate assemblage ... Such a measure of structure and function of the biota ... is an appropriate indicator of ecological quality, the integrity of soil and water chemistry, geological processes, and land use changes.”). The Corps also used the EPA’s Rapid Bioassessment Protocol for Use in Streams and Wadeable Rivers (“RBP”) to assess aquatic habitat, it used the EPA-developed West Virginia Stream Condition Index (“WV-SCI”) for measuring the types and proportions of benthic insects, and it followed the EPA’s field manual for measuring the ecological condition of streams. OVEC identifies nutrient cycling as one of the factors the Corps is instructed, but failed, to consider under 40 C.F.R. § 230.11(e) (2008). The Corps’ CDDs themselves acknowledge this shortcoming, noting that the effects of filling ephemeral streams on nutrient cycling are difficult to measure and that there is a lack of consensus among the relevant agencies about how best to collect quantitative evidence regarding these functions. To compensate for these effects, however, the Corps’ permitting decisions call for limiting impacts to channels that do not sustain long periods of flow and for establishing a riparian buffer around mitigation sites. In fact, in each of its CDDs, the Corps provides its complete findings under 40 C.F.R. § 230.11(e) (2008), including a section on “Physical and Chemical Characteristics of the Aquatic Ecosystem,” which covers substrate characteristics, water quality, current patterns and water circulation, water fluctuations, and salinity gradients; and a section on “Biological Characteristics of the Aquatic Ecosystem,” which covers threatened and endangered species and their habitat, aquatic organisms in the food web, and other wildlife. Camp Branch CDD 10-16; Black Castle CDD 13-31; Laxare East CDD 15-28; Republic No. 2 CDD 15-19. The Corps is entitled to use its best professional judgment for assessing the structure and function of the affected aquatic ecosystem, and its CDDs address the required considerations under the Guidelines, 40 C.F.R. § 230.11(e) (2008). Thus, these findings were not inconsistent with the Corps’ regulations and cannot be characterized as arbitrary, capricious, or otherwise not in accordance with the law. The district court placed great weight on the Appellees’ expert testimony at trial in finding that the Corps’ functional evaluation was lacking. We acknowledge the importance of extra-record evidence in NEPA cases to inform the court about environmental factors that the agency may not have considered. While review of agency action is typically limited to the administrative record that was available to the agency at the time of its decision, Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), a NEPA suit is inherently a challenge to the adequacy of the administrative record, see County of Suffolk v. Sec’y of the Interior, 562 F.2d 1368, 1384 (2d Cir.1977). That is why, in the NEPA context, “courts generally have been willing to look outside the record when assessing the adequacy of an EIS or a determination that no EIS is necessary.” Webb v. Gorsuch, 699 F.2d 157, 159 n. 2 (4th Cir.1983) (citing County of Suffolk, 562 F.2d at 1384). Such consideration of extra-record evidence in a NEPA case does not, however, give courts license to simply substitute the judgment of plaintiffs experts for that of the agency’s experts. Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289-90 (4th Cir.1999). “Agencies are entitled to select their own methodology as long as that methodology is reasonable,” and we must defer to such agency choices. Id. at 289; see also Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1244 (9th Cir. 2005) (finding, in the context of a NEPA challenge, that because the Forest Service had provided a “thorough and reasoned explanation” for its position, the court would not “take sides in a battle of the experts” (internal quotations omitted)); Spiller v. White, 352 F.3d 235, 244 (5th Cir.2003) (same). Having found that the Corps was not obligated to engage in a full functional assessment, it is not our place to dictate how the Corps should go about assessing stream functions and losses. In matters involving complex predictions based on special expertise, “a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). When presented with conflicting evidence, courts must generally defer to the agency evaluation because “an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The CDDs issued with each permit include substantial analysis and explanation about the Corps’ impact findings. These determinations are within the agency’s special expertise and were based on Corps staffs “best professional judgment.” As such, the Corps cannot be said to have acted arbitrarily or capriciously. 2. OVEC next questions the sufficiency of the mitigation plans contained in the CDDs for each of the challenged permits. OVEC charges that the proposed mitigation measures are insufficient both to satisfy the Corps’ requirements under the CWA and to justify the issuance of a mitigated FONSI in lieu of a full EIS under NEPA. Under the Corps’ CWA Guidelines, a § 404 permit cannot issue “unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge [of fill material] on the aquatic ecosystem.” 40 C.F.R. § 230.10(d) (2008). In their MOA of 1990, the EPA and Corps make “no overall net loss” the goal of the § 404 regulatory program, and agree that mitigation has three components: avoidance, minimization, and compensatory mitigation. 55 Fed.Reg. 9210 (Mar. 12, 1990). Avoidance is defined as the selection of the least environmentally damaging practical alternative. Id. Minimization is achieved through practicable project modifications and permit conditions that minimize adverse impacts. Id. Finally, compensatory mitigation is used where appropriate to compensate for unavoidable adverse impacts after all avoidance and minimization measures have been taken. Id. Compensatory mitigation can include the restoration of existing wetlands or the creation of new wetlands, and is to be done as close to the discharge site as possible (“on-site mitigation”). Id. Where on-site mitigation is not possible, off-site mitigation is permitted but should 'take place in the same geographic area if possible. Id. The MOA specifically directs that the functional values lost should be carefully considered when determining compensatory mitigation, and that, generally, in-kind mitigation should be used. Id. Noting the continued uncertainty of success in wetland creation, the MOA further instructs that restoration options should be considered before creation options. Id. The mitigation measures specified for the four challenged fill projects include stream enhancement, stream restoration, and stream creation. Each of the proposed compensatory mitigation plans would, according to the Corps, lead to no net loss of habitat. Much of OVEC’s concern over the proposed compensatory mitigation plans focuses on the potential impacts on head-water streams. As noted earlier, the role of headwater streams in downstream ecology is a matter of some debate in the scientific community and among the parties to this litigation. According to OVEC’s experts, headwater streams function uniquely in stream ecology, collecting and transporting organic matter to nourish aquatic life downstream, allowing higher levels of nutrient uptake than perennial streams, and serving as a habitat for a variety of benthic organisms. Intervenors, on the other hand, offered expert testimony that, while headwater streams are “very important” to stream ecology (J.A. 4345), downstream waters could still maintain a healthy benthic community even when headwater streams were filled, as long as the water quality below the fill remained good. Another expert for the Intervenors further testified that, in fact, ephemeral streams “will not provide as much benefit as downstream reaches,” because their ephemeral nature does not allow them to “be giving the same type of value and processes as the one that’s functioning all the time.” (J.A. 4381.) The Corps, meanwhile, seems to take the position that, whatever the functional uniqueness of headwater streams, nothing in NEPA, the CWA, or the Corps’ regulations prevents them from allowing mitigation of headwater stream destruction through enhancement, restoration, or creation of a downstream perennial system. The district court, again relying heavily on the trial testimony of OVEC experts, concluded that the Corps had failed to fully assess the impacts of destroying headwater streams. Taking OVEC’s view of the unique role of headwater streams, the district court found that the mitigation plans failed to explain how a valley fill’s destruction of headwater streams could be compensated for simply by the creation, enhancement, or replacement of an equal or greater length of some other stream type. The court further suggested that the Corps’ failure to conduct a full functional assessment meant that it ignored a number of critical headwater stream values in its evaluation of adverse impacts, and therefore the mitigation plans could not possibly be adequate to offset adverse impacts. The Corps defends the mitigation plans by arguing that nothing in the CWA Guidelines requires compensatory mitigation measures that precisely replicate the functions of the impacted streams. Having reviewed the Guidelines, this Court concludes that, whatever the role of head-water streams in overall watershed ecology, the Corps is not required to differentiate between headwater and other stream types in the determination of mitigation measures. In reaching this conclusion, we look to the Corps’ guidance in RGL 02-02, which provides that “[districts should require compensatory mitigation projects for streams to replace stream functions where sufficient functional assessment is feasible. However, where functional assessment is not practical, mitigation projects for streams should generally replace linear feet of stream on a one-to-one basis.” As we have already noted, a full functional assessment protocol is not yet available to the Corps, and the Corps is thus entitled to use its best professional judgment to assess structural and functional losses for purposes of the Guidelines. Similarly, RGL 02-02 advises that, where a full functional assessment is not feasible, the only compensatory mitigation measure the Corps must require in a permitting decision is stream replacement on a one-to-one basis. Nothing in the Corps’ CWA guidance requires that only in-kind, on-site mitigation measures be used. By this standard, the Corps’ permitting decisions have exceeded the mitigation requirements by creating mitigation plans involving greater than one-to-one replacement schemes. The Camp Branch project, for example, involved 15,514 linear feet of direct impacts, and the permit requires mitigation of 43,306 feet. The Corps’ guidance does instruct that “functional values lost by the resource to be impacted must be considered” in developing a mitigation plan. MOA, 55 Fed.Reg. 9210 (Mar. 12, 1990). But the guidance also provides that compensatory mitigation must be “practicable.” Id. The Corps’ guidance documents indicate that, in “determining ‘practicability,’ Districts will consider the availability of suitable locations, constructability, overall costs, technical requirements, and logistics.” RGL 02-02. “In certain circumstances of regions of the country, on-site compensatory mitigation opportunities are limited,” and the Corps must look instead to other compensatory options. Thomas F. Caver, Deputy Dir. of Civil Works, U.S. Army Corps of Eng’rs, Internal Guidance on Mitigation for Impacts to Aquatic Resources from Surface Coal Mining (May 7, 2004). In other circumstances, the stream functions being lost on-site may be “ubiquitous in the watershed,” while “wetland functions are rare or degraded.” Id. In such a situation, “it may be appropriate to replace lost stream functions with wetlands functions.” Id. Thus, where on-site or in-kind functional mitigation is not practicable or even ecologically preferable, the Corps’ guidance allows compensation plans that employ off-site or out-of-kind mitigation based on improvements to the overall aquatic health of the watershed. For example, in the case of the Laxare East and Black Castle permits, the Corp’s mitigation plans aimed to improve the water quality of already severely distressed streams in portions of the Laurel Creek watershed. Similarly, in the case of the Republic No. 2 mine, the mitigation plan was designed to address stability issues along the Long Branch tributary, based on an assessment that “this section of stream could contribute to improved aquatic habitat and ultimately aquatic diversity .... by attempting to replace the chemical, hy-drologic, and geomorphic functions of the impacted channels.” Republic No. 2 CDD 13. Each of these mitigation plans accords with the holistic watershed approach called for in the Corps’ guidance documents. Moreover, each of the mitigation plans for the challenged permits included requirements for continued monitoring of the efficacy of the mitigation measures, in some cases for as much as 10 years. Each permit also contains detailed special conditions that impose numerous performance standards to measure and ensure the success of mitigation. OVEC also takes issue with the use of stream creation as a mitigation measure. The Camp Branch and Laxare East plans both employ stream creation as a significant component of their compensatory mitigation schemes. Under these plans,' sediment ditches used during mining to collect runoff, control drainage, and collect sediment, will be converted into new stream channels. OVEC’s experts have questioned these stream creation proposals, calling them scientifically untested and unsound. The Corps’ support for its claim that the proposed stream creation measures have good potential for success is admittedly limited. The Corps cites one example of stream creation in a mining area in Kentucky as well as an Ohio State University study on the potential for enhancing the natural ecology of drainage ditches. See Camp Branch CDD 44; Laxare East CDD 98-101. However, the novelty of a mitigation measure alone cannot be the basis of our decision to discredit it. When an agency is called upon to make complex predictions within its area of special expertise, a reviewing court must be at its most deferential. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”). The Corps admits that “[t]ime is required with any new, scientifically based development as well as monitoring and evaluation to show the success and/or failures of the project.” Camp Branch CDD (Supplement) 3. And, the monitoring plans in place for Camp Branch and Lax-are East allow the Corps to reevaluate their efficacy determinations as the stream creation projects progress. Because the mitigation measures reflect the Corps’ determinations of the most appropriate and practicable means of compensating for anticipated impacts and losses of value, we cannot say that the Corps’ conclusion that compensatory mitigation would offset the adverse effects of the All activity was arbitrary, capricious, or otherwise not in accordance with the requirements of the CWA. Cf. Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of Eng’rs, 374 F.Supp.2d 1116, 1158-59 (S.D.Fla. 2005); Airport Cmtys. Coal. v. Graves, 280 F.Supp.2d 1207, 1227-28 (W.D.Wash.2003). The Corps’ proposed mitigation plans are also sufficient to justify issuance of a mitigated FONSI for purposes of NEPA. In O’Reilly v. U.S. Army Corps of Engr’s, 477 F.3d 225 (5th Cir.2007), the Fifth Circuit found that the Corps’ EA and mitigated FONSI for a § 404 permit application were inadequate because the Corps failed to establish that identified adverse impacts of wetland filling would actually be corrected by its proposed mitigation measures. The court noted that generally “proposed mitigation measures need not be laid out to the finest detail,” but they also could not be purely perfunctory or conclusory. Id. at 231 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). In this case, by contrast, the Corps did explain how mitigation would compensate for fill impacts. In the Black Castle CDD, for example, the Corps explains that: [t]he applicant’s mitigation plan would be expected to result in the replacement of the appropriate type and quantity of aquatic functions lost due to project impacts. The goal of the applicant’s CMP [Compensatory Mitigation Plan] is to reestablish, restore, and/or enhance the values of each habitat parameter (i.e. embeddedness and sediment deposition, velocity/depth regime, riparian cover, bank stability and vegetative protection), in order to promote a general improvement in the area’s existing benthic conditions. Before impacts, the streams proposed to be impacted by the proposed activities were measured for detailed Rosgen-type morphological parameters, aquatic resources, habitat, substrate, and riparian parameters in order to reconstruct these sections of channels to their approximate original state ..., thus utilizing an ecological restoration approach on these sections of channels by replacing the physical and geomorphic functions.... This approach focuses on replacing the corridor structure and function, therefore, enabling communities to recover to a sustainable level. Stream functions were identified and quantified as part of the conducted benthic surveys, water sampling, habitat assessments, and [West Virginia Stream Condition Index] WVSCI and were used in the design of the applicant’s CMP. A variety of components that address aquatic habitat functions such as improvement to water quality and temperature, organic input, and macroinvertebrate, fisheries, and riparian habitat has been incorporated into the applicant’s mitigation plan. The applicant’s specific goals include reducing sediment runoff, improving marginal aquatic habitats for benthic macroinver-tebrates and fish both functionally and aesthetically, and restoring functions by eradicating invasive species, stabilizing eroded and collapsed banks, installing proper road crossings, placing or repositioning boulders, and planting native riparian vegetation. These improvements would ultimately improve aquatic habitat for fauna within the Laurel Creek watershed. Black Castle CDD 42-43; see also id. at 102-03. The Corps is thus able to “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 Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 102-103 (4th Cir.2006). Given this, we conclude that the compensatory mitigation plans contained in the CDDs for each of the challenged permits were sufficient both for purposes of satisfying the Corps’ requirements under the CWA and for justifying issuance of a mitigated FONSI under NEPA. 3. Under both NEPA and the CWA, the Corps is required to consider the cumulative impacts of an applicant’s proposed project. Under NEPA, the Corps must evaluate “[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7) (2008). Under the CWA, the Corps’ Guidelines instruct that a project should not receive a § 404 permit “unless it can be demonstrated that [the project] will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.” 40 C.F.R. § 230.1(c) (2008). In each of the four challenged permitting decisions, the Corps found that no cumulatively significant impacts would occur. OVEC argues that the Corps’ cumulative impact analysis failed in two respects. First, OVEC claims that, because the Corps improperly limited the scope of its NEPA analysis to the streams alone, it also failed to assess the cumulative impacts of the fills on the valleys themselves. Given our earlier finding that the Corps was entitled to deference in its decision to limit the scope of its NEPA analysis to the impacts from the filling of jurisdictional waters, this first argument by OVEC must fail. Second, OVEC argues that the Corps’ conclusions about cumulative impacts with regard to the streams and watersheds themselves were insufficient. Appellants respond that the Corps complied with relevant regulations and guidance in its cumulative impact analysis. For each CDD, the Corps included an evaluation of (1) present conditions and probable future conditions if fill activity is not allowed; (2) the direct and indirect effects that fill activity would have on those conditions; and (3) how fill activity would interact with past or future impacts from other activity in the area. See Camp Branch CDD 24-30; Black Castle CDD 43-53; Laxare East CDD 43-56; Republic No. 2 CDD 21-24. The district court found the Corps’ cumulative impact analysis faulty because it presumed that the Corps’ determination relied improperly on mitigation to eliminate adverse impacts. The district court is correct that a “mitigated to insignificance” analysis does not suffice to demonstrate an absence of cumulatively significant impacts. The Fifth Circuit rejected just such an approach in O’Reilly, 477 F.3d at 234-35. In O’Reilly, the Corps had issued a CWA § 404 permit to a residential developer after issuing a mitigated FONSI. The court agreed with plaintiffs, area residents who opposed the planned subdivision being developed, that the Corps acted arbitrarily in issuing the mitigated FONSI because it failed both to properly articulate how adverse effects were mitigated to insignificance and to adequately consider cumulative effects. Id. at 227. On this latter shortcoming, the Corps had stated that “mitigation for impacts caused by the proposed project, possible future project phases, and all Corps permitted projects will remove or reduce e[x]pected impacts.” Id. at 235 (alteration in original) (internal quotations omitted). The court rejected this argument, observing that, without further explanation from the Corps, it could not accept the presumption that “when the individually ‘mitigated-to-insignificant’ effects of this permit are added to the actual post-dredge and fill effects of 72 other permits issued to third parties by the Corps in the area, that the result will not be cumulatively significant.” Id. (emphasis in original). This case is different. While the Corps’ finding of no cumulative adverse impacts does lean, to some extent, on mitigation, it is not in the same perfunctory, conclusory way that was found inadequate in O’Reilly. For one thing, the Corps’ findings rely in part on both the WVDEP’s CWA § 401 certification and SMCRA permitting process. Under CWA § 401, the WVDEP must certify that proposed mining activity will not cause or contribute to a violation of state water quality standards. See 33 U.S.C. § 1341 (2000). The § 401 certification process involves, among other things, consideration of: impacts of the project in light of other activities in the watershed ... and anti-degradation requirements .... [which] work to reduce or eliminate cumulative impacts by providing a process to maintain existing water quality levels to meet intended uses.... Therefore, the Corps views the state water quality certification as satisfying the water quality portion of cumulative impact analysis.... Laxare East CDD 122. A § 401 certification is considered conclusive, and no independent analysis of the certification is required. 33 C.F.R. § 320.4(d) (2008); see also Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir.2008). The SMCRA permitting process also requires the director of WVDEP to prepare an assessment of the probable cumulative impact of all anticipated (past, present, and future) mining on the hydrologic balance in the area of the mine and make a finding that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. W. Va.Code § 22-3-18(b)(3) (2005). This Cumulative Hydrologic Impact Assessment (“CHIA”) is part of the administrative record for each of the challenged permits. See, e.g., Laxare East CDD 134. In finding the Corps’ cumulative impact analysis inadequate, the district court charged that “[t]he Corps does not explain how the cumulative destruction of headwa-ter streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.” Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs, 479 F.Supp.2d 607, 659 (S.D.W.Va.2007). In fact, each of the Corps’ permits directly addresses the cumulative impact issue. In the Republic No. 2 CDD, for example, the Corps acknowledges that the impact of pre-SMCRA mining has degraded the upper Cabin Creek watershed. See Republic No. 2 CDD 23. However, the Corps notes that mining in the same seams as proposed for Republic No. 2 has not resulted in any acid mine drainage problems. Id. at 16. The Corps also notes that as part of the CWA § 402 NPDES program, anti-degradation standards have been calculated for each pond outlet to ensure no material impacts to water quality downstream and to ensure water quality standards are met. Id. Significantly, the CHIA prepared by WVDEP, which considered the impact of the Republic No. 2 operation and all other past, present, and future mining in the watershed, determined there would be no cumulative adverse impact. Id. Thus, the Corps concluded that while there would be short-term impacts to the aquatic and terrestrial environment as a result of the proposal, it is anticipated the proposed mining activities would have no adverse cumulative environmental impacts within the sub-watershed or the overall Cabin Creek watershed. The proposal, if implemented as described, should improve the overall ecological balance of the area. Further, the proposal and resultant mitigation and reclamation requirements are expected to improve the overall health of the Cabin Creek watershed. Id. at 24. Because the Corps has analyzed cumulative impacts in each of the challenged permits and has articulated a satisfactory explanation for its conclusion that cumulative impacts would not be significantly adverse, we find that the Corps did not act arbitrarily or capriciously in conducting its required cumulative impact analysis. V. Appellants also challenge the district court’s June 13, 2007, order granting OVEC declaratory relief on the question of whether stream segments connecting valley fills to downstream sediment ponds are properly classifiable under the CWA as waters of the United States and thus not within the Corps’ § 404 authority to allow. We conclude that stream segments, together with the sediment ponds to which they connect, are unitary “waste treatment systems,” not “waters of the United States,” and that the Corps’ has not exceeded its § 404 authority in permitting them. A. At the outset of our analysis on this issue, we must deal with the Intervenors’ argument that the doctrine of res judicata precludes OVEC’s claim of entitlement to declaratory relief. Intervenors argue that plaintiffs could and should have raised this claim in the course of the Bragg v. Robertson litigation, and their failure to do so bars them from raising it now. The district court rejected this argument in a memorandum opinion and order dated August 10, 2006; we review de novo, see Q Int’l Courier, Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir.2006). In Bragg v. Robertson, 54 F.Supp.2d 653 (S.D.W.Va.1999), aff'd in part, rev’d in part sub nom. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir.2001), the plaintiffs— including several individuals and the West Virginia Highlands Conservancy, one of the plaintiffs in this case — brought suit against, inter alia, the Corps and WVDEP for various alleged violations of their statutory duties under SMCRA, the CWA, and NEPA in the course of their mountaintop removal permitting activities. With respect to the Corps, the plaintiffs’ complaint alleged that the agency did not have authority under the CWA to regulate valley fills because mining spoil did not meet the definition of “fill material” under the CWA. Plaintiffs subsequently entered into a settlement agreement with the Corps that resolved their claims regarding the Corps’ past alleged violations under the CWA and NEPA. See id. Under the terms of the agreement, the plaintiffs gave up their right to challenge the Corps’ authorization of valley fills under the theory that mining spoil is not fill material. See id. at 657 n. 5. The agreement expressly reserved for the plaintiffs, however, “the right to challenge under the APA any future Corps’ CWA section 404 authorization for any valley fill in waters of the United States that may be authorized by the Corps after the Effective Date of this Settlement Agreement.” (J.A. 139-40); see also Bragg, 54 F.Supp.2d at 657. The district court approved the settlement agreement and dismissed all outstanding claims against the Corps with prejudice. Braga, 54 F.Supp.2d 653-54. Intervenors claim that the district court’s orders in the Bragg litigation were final adjudications for purposes of claim preclusion and that principles of res judi-cata bar OVEC from now challenging the Corp’s permitting of the use of stream segments to connect fills to downstream sediment ponds. We find this argument unpersuasive. Res judicata or claim preclusion bars a party from suing on a claim that has already been “litigated to a final judgment by that party or such party’s privies and precludes the assertion by such parties of any legal theory, cause of action, or defense which could have been asserted in that action.” 18 James Wm. Moore et al., Moore’s Federal Practice § 131.10(l)(a) (3d ed.2008). For res judi-cata to prevent a party from raising a claim, three elements must be present: “(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action.” Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.1990). In finding that the second suit involves the same cause of action, the court need not find that the plaintiff in the second suit is proceeding on the same legal theory he or his privies advanced in the first suit. See id. at 43. As long as the second suit “arises out of the same transaction or series of transactions as the claim resolved by the prior judgment,” the first suit will have preclusive effect. Id. (internal quotations omitted). OVEC argues that the claims involved in this case and in Bragg are different, because in Bragg the plaintiffs challenged the Corps’ authority to permit valley fills and in this case the plaintiffs have challenged the Corps’ authority to authorize pollutant discharge into stream segments. This argument, as Intervenors point out, misunderstands the principles of claim preclusion. Even claims that were not raised in the original suit may be precluded if they arose from the same transaction or occurrence as those raised in the first suit and were available to the plaintiff at the time of the first suit. See Aliff, 914 F.2d at 42-43. Nonetheless, claim preclusion does not apply in this case for two reasons. First, the Bragg settlement agreement explicitly reserved plaintiffs’ right to challenge the Corps’ valley fill permit authority in the future. The Bragg plaintiffs conceded only that they would not raise such a challenge on the theory that mining spoil is not fill material. Settlement agreements operate on contract principles, and thus the preclusive effect of a settlement agreement “should be measured by the intent of the parties.” 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4443 (2d ed.2002). Here it seems clear that the parties intended to retain for the plaintiffs the right to challenge the Corps’ permitting of future valley fill projects on any grounds other than the one specifically raised in Bragg. Second, OVEC is challenging a different set of permits in this case than those at issue in Bragg. The Corps had not even issued the permits in question here at the time of the Bragg litigation. Intervenors’ argument that OVEC should have raised its stream segment claim during the Bragg litigation falls flat because the claim here concerns four permits that were not even in existence at the time of Bragg. The fact that the two suits involve challenges to very similar courses of conduct does not matter; a prior judgment “cannot be given the effect of extinguishing claims which did not even then exist....” Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). A contrary finding would confer “partial immunity from civil liability for future violations.” Id. at 329, 75 S.Ct. 865. For these reasons, we affirm the lower court’s finding that OVEC’s stream segments claim is not barred by principles of res judicata. B. The district court’s June 13, 2007, order granted OVEC’s motion for partial summary judgment on its claim that the Corps did not have authority under § 404 of the CWA to authorize the discharge of fill sediment into the stream segments that link the fill to a downstream sediment pond. The court found that the stream segments were “waters of the United States” and not part of “waste treatment systems,” as the Corps characterized them. While acknowledging the deference traditionally due an agency’s interpretation of its own regulations, the court found that in this case the Corps’ interpretation was a post hoc rationalization, created for the purposes of this litigation. As a result, the court held that discharges from the fill into the segment streams were impermissible without a separate CWA § 402 NPDES permit. We review this question of law de novo. United States v. Deaton, 332 F.3d 698, 703-04 (4th Cir.2003). Because this is an issue of statutory and regulatory interpretation, we must apply the framework for review laid out in Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). In determining whether the Corps’ interpretation is entitled to deference, this Court must first look to the language of the authorizing statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (1984). An agency’s reasonable interpretation of a statute is entitled to deference, unless Congress has already expressed a clearly contrary intent. Id. The CWA prohibits the discharge of any pollutant unless done in compliance with statutory requirements. 33 U.S.C. § 1311 (2000). It goes on to define the phrase “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source....” 33 U.S.C. § 1362(12)(A) (2000). The term “navigable waters,” in turn, is defined as “the waters of the United States.” 33 U.S.C. § 1362(7) (2000). The Corps’ regulations implementing the CWA have defined the “waters of the United States” to include interstate waters as well as “all other waters such as intrastate lakes, rivers, [and] streams (including intermittent streams).... ” 33 C.F.R. § 328.3(a)(3) (2008); 40 C.F.R. § 232.2 (2008). The regulations also include in the definition “[a]ll impoundments of waters otherwise defined as waters of the United States under the definition.” 33 C.F.R. § 328.3(a)(4) (2008); see also 40 C.F.R. § 232.2 (2008). The regulations, however, exclude from the definition “waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA.” 33 C.F.R. § 328.3(a)(8) (2008); see also 40 C.F.R. § 232.2 (2008). In Deaton, 332 F.3d at 709, this Court found that Congress’ decision to define “navigable waters” broadly as “waters of the United States” evinced an intent to regulate at least some waters that would not be considered navigable. The Court went on to find, however, that the Act was not clear what non-navigable waters it intended to cover, and thus that the phrase “waters of the United States” was “sufficiently ambiguous to constitute an implied delegation of authority to the Corps” to determine the scope of the phrase. Id. at 709-10. Given that the Corps has the authority to determine which waters are covered by the CWA, this Court must next look to the Corps’ regulations implementing the CWA. Id. at 710. If the regulation defining “waters of the United States” is ambiguous, then the Corps’ interpretation of that definition is entitled to Seminole Rock deference and controls unless plainly erroneous or inconsistent with the regulation. Id. at 711. Appellants and OVEC agree that, in the absence of the valley fill, the stream segments in question would be considered “waters of the United States” because they would be part of a natural stream pursuant to 33 C.F.R. § 328.3(a)(3). OVEC contends that, even after the streams have been co-opted for use in conjunction with valley fills, the segments are still “im-poundments of water otherwise defined as waters of the United States” and thus treated as “waters of the United States” under 33 C.F.R. § 328.3(a)(4). If OVEC is correct, any discharge of sediment into these stream segments from the valley fills would require a CWA § 402 NPDES permit. The Corps, however, counters that the stream segments and the sediment ponds to which they connect form a “waste treatment system” under 33 C.F.R. § 328.3(a)(8). Thus, in the Corps’ view, the stream segments are exempt from the “waters of the United States” definition and a § 404 permit suffices to authorize them. The Corps’ definition of “waters of the United States” relies heavily on that adopted by the EPA in its CWA § 402 regulations. Compare 33 C.F.R. § 328.3 (2008) and 40 C.F.R. § 232.2 (2008) with 40 C.F.R. § 122.2 (2008). In its exemption of waste treatment systems, the EPA regulations provide that “[t]his exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States ... nor resulted from the impoundment of waters of the United States.” 40 C.F.R. § 122.2. Significantly, however, that sentence was suspended by the EPA in 1980. See 45 Fed. Reg. 48620 (July 21, 1980). At the time, the agency indicated that it intended to promptly issue a revised definition, see id., but it never did. Without that definitional sentence for the term “waste treatment system,” it is not obvious from the plain language of the regulation what the term is intended to cover. Because the Corps’ definition relies on the EPA definition, and because the EPA definition is ambiguous, the intent behind the Corps’ “waste treatment exception” is ambiguous. The issue, then, is to determine whether the Corps’ interpretation of 33 C.F.R. § 328.3(a)(8) (2008) is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, 325 U.S. at 414, 65 S.Ct. 1215 (1945). Appellants arg-ue that the Corps is entitled to Seminole Rock deference because it has consistently treated stream segments and sediment ponds as “waste treatment systems” in accordance with longstanding EPA guidance on the matter. OVEC contends, however, that we should follow the district court and find that the Corps’ position is a post hoc rationalization, created for the purposes of defending this litigation, and is thus entitled to no deference. As support for this argument, OVEC points to the fact that none of the CDDs for the four challenged permits included any reference to the “waste treatment” exception when originally issued; only when the permits were reissued after voluntary remand to the Corps did the waste treatment language appear. Notwithstanding the Seminole Rock principle that significant deference is due an agency’s interpretation of its own regulations, such deference may not be required when the agency’s advocated interpretation is one that it has just adopted for the purpose of litigation and that is “wholly unsupported by regulating, rulings, or administrative practice.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The interpretation must reflect the agency’s fair and considered judgment on the matter. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). To the extent that Appellees are right, and the Corps only adopted this position as a litigation defense, it is not entitled to Seminole Rock deference. However, the Corps argues that its position has been consistent and consonant with longstanding EPA guidance. As with much in this case, the history of the EPA’s and the Corps’ positions on this issue is complicated. As noted earlier, in 1980, the EPA suspended its definition of the term “waste treatment system,” found originally in 40 C.F.R. § 122.2, and did not issue a revised definition. Almost a decade later, in West Virginia Coal Association v. Reilly, 728 F.Supp. 1276 (S.D.W.Va.1989) — a challenge by two coal mining associations and several mining companies to the EPA’s policies strictly limiting the use of in-stream treatment of mining waste— the EPA took the position that in-stream sediment ponds and the waters above them are included in the definition of “waters of the United States” because they are an impoundment of waters of the United States. The court upheld this position, finding that it was not plainly erroneous or inconsistent with the EPA’s regulations or with the CWA itself. Id. at 1290-91. The Reilly plaintiffs argued that the stream segments and sediment ponds were excepted from § 402 regulation because they fell under the Corps’ § 404 authority instead. Id. at 1285. The court rejected this argument finding that, while the regulations themselves offered confusing guidance on the matter, the Corps and the EPA had agreed that sediment-laden runoff from the valley fills was subject to § 402 permitting requirements. Id. This Court affirmed the district court’s opinion in an unpublished opinion. See West Virginia Coal Ass’n v. Reilly, 932 F.2d 964 (4th Cir.1991) (agreeing with district court that in-stream sediment ponds and the waters above them are “waters of the United States”). Then, in a 1992 guidance document, the EPA indicated, in the context of advising on an Alaskan gold mining project, that impoundments “created by the discharge of fill material ... if permitted by the Corps under Section 404 for purposes of creating a waste treatment system, would no longer be waters of the U.S.” Memorandum from LaJuana S. Wilcher, Assistant Administrator for the EPA, to Charles E. Findley, Director, Water Division, Region X, United States Army Corps of Engineers, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992). Finally, in March 2006, after this litigation began, the EPA sent the Corps a letter in which the EPA states that, in the context of Appalachian surface mining, “the waste treatment system exclusion continues to apply to the creation or use of a waste treatment system in waters below a valley fill permitted by the Corps under CWA § 404.” Letter from Benjamin H. Grumbles, Assistant Administrator for the EPA, to the Hon. John Paul Woodley, Assistant Secretary of the Army (Civil Works) (Mar. 1, 2006) (emphasis added) [hereinafter “the EPA Letter”]. The EPA Letter goes on to note that, because it is often impracticable to locate sediment ponds directly below valley fills, the use of a stream segment to connect the fill and pond is “an unavoidable and necessary component of the treatment system.” Id. The Corps then relied on this letter to introduce the “waste treatment system” language into the permits on voluntary remand. The district court found, and OVEC now argues, that the EPA Letter was a post hoc rationalization and did not constitute the “fair and considered judgment” of the EPA or, in turn, the Corps. In support of its argument that the “waste treatment system” interpretation was not a post hoc rationalization, the Corps points to the fact that, over the twenty-five years that the EPA and WVDEP have been issuing § 402 NPDES permits, those agencies have never required an NPDES permit for the stream segments that are used in numerous surface mining operations to link § 404-permitted valley fills to downstream sediment ponds. Moreover, the WVDEP, which has been operating an EPA-approved NPDES program since 1982, has also taken the position that the permitting of segment streams is within the Corps’ authority. (See Joint Amicus Brief of the West Virginia Department of Commerce and the West Virginia Department of Environmental Protection as Amici Curiae Supporting Appellants at 16.) This kind of consistent administrative practice suggests that the Corps’ and EPA’s position is not a post hoc rationalization. Cf. Bowen, 488 U.S. at 212, 109 S.Ct. 468 (“We have never applied the principle [of deference] ... to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.”). The EPA’s position in Reilly, at first glance, seems difficult to reconcile with the position it and the Corps now claim. But, the distinction lies in the fact that the Reilly case arose in the context of the EPA’s oversight of West Virginia’s § 402 program. See 728 F.Supp. 1276. In Reilly, the EPA was objecting to the fact that West Virginia, in issuing § 402 permits that allowed in-stream treatment ponds, had analyzed discharges from the ponds but had not analyzed the impacts of creating the ponds themselves. The EPA was not confronted in Reilly with a situation where the treatment system was authorized by a § 404 permit issued by the Corps. When the Corps exercises its § 404 authority to permit the use of a stream segment as part of the treatment system for fill runoff, it has allowed the temporary removal of these waters from the definition of “waters of the United States” only after analyzing the impacts of creating the system and mitigating those impacts as necessary. Thus, a sediment pond and stream segment waste treatment system authorized by a § 404 permit is a treatment system “designed to meet the requirements of the CWA.” 40 C.F.R. § 232.2 (2008). Even if the Corps’ “waste treatment system” argument was a post hoc rationalization when it was first raised, once the Corps reconsidered and reissued the permits on voluntary remand, the jus-tomation was no longer post hoc and it is entitled to deference. When a court reviews an agency action, the agency is entitled to seek remand “without confessing error, to reconsider its previous position.” SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed.Cir.2001). “[A]n agency must be allowed to assess ‘the wisdom of its policy on a continuing basis.’ ” Id. at 1030 (quoting Chevron, 467 U.S. at 864, 104 S.Ct. 2778). As the Supreme Court recently found in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S.Ct. 2339, 2349, 168 L.Ed.2d 54 (2007), “as long as interpretive changes create no unfair surprise ... the change in interpretation alone presents no separate ground for disregarding the Department’s present interpretation.” Decades worth of administrative practice cannot constitute an “unfair surprise.” Because, to the extent there was a “change” in written administrative policy, that change reflected the considered views and longstanding practice of the Corps and the EPA, the Corps’ interpretation of the “waste treatment” exception to its regulatory definition of “waters of the United States” is entitled to deference. See id. at 2349. The final step in the combined Chevron and Seminole Rock analysis is to determine whether the agency’s interpretation of the statute is reasonable and entitled to deference. In this case, we must determine whether, considering Congress’ intent for the CWA, it was reasonable for the Corps to conclude that stream segments connecting valley fills to sediment ponds are “waste treatment systems” and not “waters of the United States.” In making this determination, we must first appreciate the statutory tightrope that the Corps walks in its permitting decisions. In passing the CWA, Congress aimed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 38 U.S.C. § 1251(a) (2000). But, in passing SMCRA, Congress sought to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f)(2000). The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutes’ goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area. Sediment ponds represent the “best technology currently available” for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior’s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards. It is undisputed in this litigation that the Corps has the authority under CWA § 404 to permit the filling of jurisdictional waters to move runoff away from valley fills. See Kentuckians for the Commonwealth v. Ri-venburgh, 317 F.3d 425 (4th Cir.2003). It is also undisputed that the Corps has authority to permit the construction of sediment ponds to treat that runoff before it is discharged back into jurisdictional waters. OVEC asks us now to take the position that it would be an unreasonable construction of the CWA to allow the Corps to also use its § 404 authority to permit the stream segments that must, as a practical reality, be used to move runoff from the fill to the sediment ponds. We decline to do so, and find instead that the Corps’ interpretation of its authority was reasonable in light of the CWA and entitled to deference. The district court’s grant of partial summary judgment on OVEC’s claim for declaratory relief is reversed. VI. Since the district court’s rulings in this case, the Corps has issued five new individual CWA § 404 permits for surface coal mines in West Virginia. OVEC now requests that this court take judicial notice of these permit decision documents, as public records relevant to the matter at issue. The Corps does not object to our taking notice of the existence of the documents, but points out that OVEC actually seeks notice of its own interpretation of the contents of those documents. The parties clearly and reasonably disagree about the meaning to be ascribed to these new decision documents, and we therefore decline to judicially notice them. See Fed. R.Evid. 201(b); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989). VI. For the foregoing reasons, we reverse and vacate the district court’s March 23, 2007, opinion and order rescinding the four challenged permits and vacate the district court’s injunction of activity under those permits. We also reverse the district court’s June 13, 2007, order granting declaratory relief to OVEC on the issue of whether the stream segments used to connect valley fills to downstream sediment ponds are properly characterized as “waters of the United States.” Finally, we deny OVEC’s motions for judicial notice. We remand for further proceedings consistent with this opinion. IT IS SO ORDERED . Mine operators may seek a general § 404 permit for the discharge of fill material "on a State, regional, or nationwide basis” if their activities "will cause only minimal adverse effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(l)(2000). For fill activities that do not meet the requirements for a general permit, the Corps issues individual § 404 permits for discharges at "specified disposal sites” on a case-by-case basis. 33 U.S.C. § 1344(a)(2000); Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 496 (4th Cir.2005). . The Camp Branch project includes 4 fills impacting 15,059 linear feet of intermittent and ephemeral streams, and 4 associated sediment ponds that would temporarily impound an additional 455 linear feet of intermittent streams. The Black Castle project includes 9 valley fills impacting 13,401 linear feet of intermittent and ephemeral streams, and 6 associated sediment ponds, temporarily impounding an additional 879 linear feet of intermittent streams. Republic No. 2's project includes 3 valley fills impacting 9,918 linear feet of intermittent and ephemeral streams, and 3 associated sediment ponds temporarily impounding an additional 690 linear feet of intermittent streams. Finally, the Laxare East project involves 7 valley fills, impacting 24,860 linear feet of intermittent and ephemeral streams, and 10 associated sediment ponds temporarily impounding an additional 3,099 linear feet of intermittent and ephemeral streams. . The court later granted Intervenors’ request for a limited stay of the injunctions for some of the fills, provided that Intervenors complied with all conditions, including mitigation requirements, of the permits. . The court also granted a motion by the Intervenors to stay the effect of the June 13 order pending appeal. . States are free to adopt more stringent regulations than those mandated by SMCRA. 30 U.S.C. § 1255(b) (2000). . Where a state does not have a federally approved SMCRA program in place, surface mining operations within that state must be permitted by the Secretary of the Interior. 30 U.S.C. § 1256 (2000). . A "point source” is "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) (2000). . In Kentuckians for the Commonwealth, 317 F.3d 425, this Court upheld the Corps’ interpretation of the term “fill material” to include coal mining overburden as a permissible construction of CWA § 404. . “Waters of the United States" include interstate waters and all waters used (or that could potentially be used) in interstate commerce, and "(a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams) [et ah] ... the use, degradation or destruction of which could affect interstate or foreign commerce_” 40 C.F.R. § 230.3(s) (2008). . In their appeal of the March 23 opinion and order, the Intervenors have questioned OVEC's standing to challenge the Republic No. 2 permit. Intervenors claim that organizational standing is inappropriate because no member of the three plaintiff organizations has sustained an ''injury in fact” as a result of the Corps' § 404 permitting with respect to Republic No. 2. ''[EJnvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). As the district court determined below, one of OVEC's members and employees, Vivian Stockman, travels to the Republic No. 2 mine site to take photographs of nature and she intends to do so regularly in the future. Ms. Stockman will thus suffer a direct aesthetic injury as a result of the permitted activity, and OVEC therefore has standing to proceed with its challenge to the Republic No. 2 permit. See id. at 181, 120 S.Ct. 693 (noting that an organization has standing to bring suit on behalf of its members where members could sue in their own right, the interests involved are germane to the organization's purpose, and the requested relief does not require the participation of individual members in the suit). . The Ninth Circuit's opinion in Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir.2005), is not to the contrary. In that case, the court was not confronted, as we are, with the problem of overlapping federal and state regulatory schemes. . This interpretation is also not in tension with NEPA itself. ''[T]o get to Seminole Rock deference, a court must first address the straightforward Chevron [Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] question whether an agency regulation, as interpreted violates the statute.” Kentuckians for the Commonwealth, 317 F.3d at 440 (quoting John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612, 627 n. 78 (1996)). NEPA is not a results-driven statute, and requires only that federal agencies carefully consider and weigh competing policy values, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), which the Corps has plainly done here. . The CDDs issued with each of the challenged permits included the Corps’ NEPA and CWA analyses and conclusions, as well as details of the proposed compensatory mitigation plans. . In April 2008, an amendment to the Guidelines superseded RGL 02-02 as guidance on implementation of the Corps' compensatory mitigation policy. See 40 C.F.R. § 230.91(e)(1) (2008). It also superseded the MOA with respect to any provisions "relating to the amount, type, and location of compensatory mitigation projects,” though all other provisions of the MOA remain in effect. See 40 C.F.R. § 230.91(e)(2) (2008). Because the MOA and RGL 02-02 were valid guidance in place at the time of the Corps’ permitting decisions, however, we must consider the agency's action in light of those guidance documents to determine whether the Corps acted in an arbitrary or capricious manner. . OVEC further contends that, consistent with the CWA Guidelines, the MOA also compels a full functional assessment. . The dissent misconstrues the significance of the Corps’ use of structural measurements as a surrogate for a full functional analysis. The Corps' methodology does not, as the dissent suggests, make "function” "merely a redundancy for 'structure.' ” Infra at 218. Instead, the Corps has determined, using its best professional judgment, that structural measurements can provide adequate indications of stream function where a full functional assessment is not possible. Given the highly deferential standard under which we review administrative action, we cannot say that this approach is "plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotations omitted). Acknowledgement of this basic principle of Seminole Rock deference is conspicuously absent from the dissent. . Benthic macroinvertebrates are nonverteb-rate, aquatic organisms that are large enough to be seen with the naked eye. . Similar language can be found in the CDDs for the other permits. See Camp Branch CDD (Supplement) 5-6; Laxare East CDD 106-07; Republic No. 2 CDD 43-44. . The dissent suggests that we have “failed to identify the stream functions to be measured under § 230.11(e),” and thus "cannot meaningfully evaluate the adequacy of the stream assessment protocols that were used.” Infra at 217. But the only clues § 230.11(e) offers regarding the stream functions to be measured are the § 230.11(e) factors — "potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities,” 40 C.F.R. § 230.11(e) (2008).— and each of the Corps' CDDs undisputedly address these factors. For the Court to attempt to define stream function beyond these guidelines would certainly be inappropriate judicial intrusion into the Corps and EPA's sphere of authority. Yet that is precisely what the dissent attempts to do. The dissent looks to the functional assessment protocol that is currently being developed by the EPA and divines from that a list of functions that the Corps should have evaluated. See infra at 219-21. At this stage, however, the EPA protocol is still only in development. The dissent provides no explanation of why "the most logical place to begin an inquiry into the meaning of the term 'function,' ” infra at 219, would be with a protocol that still has not been developed as opposed to the already existing internal guidance documents issued by the EPA and the Corps. In fact, it is difficult to understand how the Corps could have abused its discretion by not following guidance that did not even exist at the time it issued the permits. . Moreover, whatever concerns OVEC’s experts had regarding the sufficiency of the Corps’ functional analysis were expressed in their comments to the Corps during the notice-and-comment period for the permits, and were incorporated into and responded to in the CDDs. . “No overall net loss” is classified only as a “goal” because the agencies "recognized that no net loss of wetlands functions and values may not be achieved in each and every permit action.” 55 Fed.Reg. 9210 (Mar. 12, 1990). . Enhancement may take the form of planting of native species of trees and plants along and in streams, establishing proper stream crossings, stabilizing banks, and/or cleaning stream beds to improve the streams' habitat, aquatic diversity, and water quality. . For the Camp Branch project, the Corps’ mitigation plan requires restoration of 2,035 linear feet of impacted streams, including the sediment ponds and the stream segments running between the fill and the sediment pond. It also requires creation of 41,271 linear feet of stream, both at the mining site and at an adjacent off-site location within the same watershed. A minimum 50-foot vegetated riparian zone would be established along all of the restored and created stream areas. For the Black Castle project, the Corps' mitigation plan includes plans to compensate for temporary impacts caused by construction of the sediment ponds by restoring 7,590 linear feet of stream. Permanent impact mitigation will include enhancement of 18,000 linear feet of perennial streams. The Corps further estimates that the placement of alkaline overburden from the mining project into the fills will actually improve another 5,420 feet of stream below the fills by decreasing the acidity and aluminum levels found in those waters as a result of prior mining activity and construction. In the case of the Laxare East project, the Corps developed a mitigation plan calling for restoration of 7,101 linear feet of temporarily impacted streams, as well as creation of 13,-621 linear feet of stream and enhancement of another 16,000 linear feet. Finally, the Corps’ mitigation plan for the Republic No. 2 project calls for restoration of 2,276 linear feet of temporarily impacted stream, as well as enhancement of 10,777 linear feet of Long Branch, a tributary adjacent to the permit area. As with the Black Castle project, the Corps found that the streams that would be filled already suffered from poor to fair water quality due to previous, pre-SMCRA mining activities. . The Intervenors’ expert, Mr. Kirk, did acknowledge that mayfly populations in downstream waters have been reduced as a result of the placement of valley fills in headwaters, but he characterized mayflies as particularly "sensitive” organisms and indicated that the reduction in their numbers was "one of the only dramatic changes that occurs, if the water quality still is fairly good downstream....” (J.A. 4352.) Another expert for the Intervenors, Dr. Donald Cherry, testified however that the functions served by the mayflies in these waters were fulfilled by other organisms. . The dissent contends that this provision of the RGL is inconsistent with 40 C.F.R. § 230.11(e) and thus "illegal.” Infra at 224. But this contention is grounded on the dissent’s faulty assumption that a full functional assessment is required in order to satisfy § 230.11(e). The fact remains that § 230.11(e) provides no guidance as to how "function” is to be assessed beyond identifying several factors which the Corps should consider. See 40 C.F.R. § 230.11(e). All four of the challenged CDDs address each of these factors. Given that the Corps’ guidance documents are not plainly contrary to the meaning of the Guidelines, the dissent's efforts to undermine their legitimacy are unavailing. . If minimum criteria are not met at the end of the established monitoring period, further monitoring may be required. . OVEC takes issue with the mitigation measurement standards employed by the Corps, claiming that, for three of the four challenged permits, the Corps relies improperly on the Stream Habitat Unit (“SHU”) model developed by the applicants to determine mitigation. According to OVEC, the SHU lacks a scientific basis and distorts the evaluation of streams by focusing on habitat measures and physical appearance and giving insufficient weight to stream function measures and to the unique role of headwater streams in watershed ecology. But, the Corps did rely not on the SHU to determine required mitigation. The Corps’ baseline standard for mitigation is the one-to-one linear feet replacement called for by the Corps’ guidance documents. The SHU model was used to provide supplemental data regarding habitat and as a measurement standard to help monitor the success of habitat creation, enhancement, or restoration efforts. . Given our earlier finding that the Corps reasonably restricted the scope of its NEPA analysis, the Corps did not need to consider mitigation efforts beyond those aimed at countering the impacts of the filling of jurisdictional waters. . Similar explanations were provided in the other challenged CDDs. See Camp Branch CDD 61-62; Laxare East CDD 41-42, 108-09; Republic No. 2 CDD 13-14. . Similar language can be found in the other permits. See, e.g., Black Castle CDD 43-53; Laxare East CDD 43-56. . The district court in Bragg, having determined that the settlement agreement was "fair, adequate, and reasonable," dismissed plaintiffs' claims against the federal defendants with prejudice, but granted leave for the plaintiffs to file a second amended complaint. 54 F.Supp.2d at 670. In a separate memorandum opinion and order, see Bragg v. Robertson, 83 F.Supp.2d 713 (S.D.W.Va.2000), the court resolved all outstanding claims (which involved only WVDEP and claims under SMCRA), by accepting a consent decree between the plaintiffs and WVDEP. . OVEC does not challenge in its arguments that the "same parties or their privies” requirement is met. . The creation of the sediment ponds themselves fall within the Corps' § 404 authority because their embankments are created through the placement of fill material at the bottom of the streams. See Reilly, 728 F.Supp. at 1288. . The mining company plaintiffs in Reilly argued, in a motion for summary judgment, that the EPA did not have jurisdiction to regulate in-stream treatment facilities because regulatory authority rested with the Secretary of the Army under CWA § 404. 728 F.Supp. at 1282. In response, the EPA took the position that the ponds and the waters above them were "waters of the United States” and within their regulatory jurisdiction because they were an impoundment of waters that would otherwise be "waters of the United States.” Id. at 1289-90. But the mining company plaintiffs had not obtained a § 404 permit for their in-stream treatment facilities, and it was not Corps action, but the actions of West Virginia’s § 402 NPDES regulatory authority, to which the EPA was taking exception. In fact, the EPA's policy for in-stream treatment that the court was considering in Reilly allowed that exceptions to the EPA-mandated prohibition on in-stream treatment ponds would be made where there were no other feasible alternatives to in-stream treatment and where the mine operator complied with the Corps’ CWA Guidelines. 728 F.Supp. at 1279-80 nn. 1-2. . The CDDs accompanying the reissued permits expressly reference the applicability of the waste treatment exception to the stream segments. {See J.A. 1252, 1729, 2267, 3562-63.)

Ohio Valley Environmental Coalition v. Aracoma Coal Co.

MICHAEL, Circuit Judge, dissenting in part and concurring in part: The U.S. Army Corps of Engineers (Corps) has authorized the filling of twenty-three valleys and more than thirteen miles of headwater streams in Southern West Virginia in connection with four mountaintop removal mining operations. Despite its failure to fully assess the impact that the proposed valley fills will have on the aquatic ecosystem, the Corps claims that, after mitigation measures have been implemented, the valley fills will not significantly degrade the waters of the United States or have a significant adverse impact on the human environment. Because the record in this case does not support the Corps’ claims that the assessments conducted and the mitigation measures imposed were adequate to fulfill the requirements of the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA), I respectfully dissent from part IV.B of the majority’s opinion. The Corps’ regulations implementing the CWA’s § 404(b) dredge and fill program require the Corps to assess the effect that a proposed fill will have “on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e). In upholding the Corps’ interpretation of its obligations under § 230.11(e), the majority declines to give effect to the unambiguous requirements of the regulations. The majority — agreeing with the Corps — concludes that an evaluation of stream structure may substitute for an evaluation of function. This interpretation, however, is impossible to reconcile with the plain language of the regulations, which clearly mandates that the Corps assess both structure and function. The majority then accepts the Corps’ alternative argument that the (nonfunctional) stream assessment protocols used by the Corps provided sufficient information about stream function to satisfy the demands of § 230.11(e). But because the majority has failed to identify the stream functions to be measured under § 230.11(e), the majority cannot meaningfully evaluate the adequacy of the stream assessment protocols that were used. The majority’s analysis of the mitigation approved by the Corps also overlooks the plainly stated requirements of § 230.11(e). Rather than basing its decision on the (binding) language of the regulations, the majority focuses instead on the Corps’ compliance with an internal guidance document that is at odds with the regulations’ clear requirements. The effect is to completely undermine the goal of mitigation: replacement of what is being lost. Because the Corps has offered no basis on which to conclude that the environmental impacts of the valley fill projects as mitigated will be insignificant, this court should reject the mitigation as inadequate under the CWA and NEPA. For these reasons, I would affirm the district court’s judgment rescinding the permits and direct that court to remand the permits to the Corps for further consideration consistent with the requirements of § 230.11(e) and NEPA. I concur in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis (part IV.A) and the Corps’ interpretation of its regulatory definition of “waters of the United States” (part V). I. Before the Corps can issue a dredge or fill permit, it must determine, pursuant to its § 404(b) regulations, the “nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e). As the Corps points out, “[t]he Guidelines [or regulations] do not ... define the ‘function of the aquatic ecosystem’ or provide any guidance on how that function is to be measured.” Corps’ Br. at 35. The Corps therefore contends that under its internal guidance documents, its district officials may “discharge their responsibility to analyze stream function by exercising their ‘best professional judgment’ when it is not feasible to conduct a full functional assessment.” Corps’ Br. at 35. A. The Corps, purporting to exercise its “best professional judgment,” claims initially that stream structure can be measured as a surrogate for function. Corps’ Br. at 36. The majority accepts the Corps’ argument, stating that “[i]n this case, the Corps, using its best professional judgment, used stream structure as a surrogate for assessing stream function”. Ante at 199. Neither the Corps nor the majority explains how the assessment of structure as a surrogate for function can be squared with the plain language of the regulations. If stream structure were truly an adequate surrogate for stream function, the Corps and the majority should offer some explanation as to why § 230.11(e) explicitly requires assessments of the effects of proposed fills on both the structure and function of the aquatic ecosystem and organisms. One of the most basic rules of statutory interpretation is that all of the words in a statute must be given effect. PSINet, Inc. v. Chapman, 362 F.3d 227, 232 (4th Cir.2004) (“General principles of statutory construction require a court to construe all parts to have meaning and to reject constructions that render a term redundant.”); Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“In construing a statute we are obliged to give effect, if possible, to every word Congress used.”). It is not within the bounds of permissible interpretation to say that the word “function” as used in § 230.11(e) is merely a redundancy for “structure.” The argument that “structure” is a surrogate for “function” is further undermined by the fact that a separate functional stream assessment protocol is currently being developed by the Environmental Protection Agency (EPA). Once the protocol is completed, the Corps will use it to conduct § 230.11(e) functional analyses for new permit applications. This functional stream protocol will direct the assessment of numerous stream functions (including nutrient uptake and transport, organic matter retention, and downstream export of organic matter) that the Corps did not measure for any of the permit applications at issue in this appeal. If existing schemes used by the Corps to assess stream structure were adequate surrogates for a functional assessment protocol, it would make little sense for the EPA to be currently undertaking the expensive and time-consuming effort of developing an independent functional protocol. The Corps’ determination that stream structure can be used as a surrogate for function under § 230.11(e) constitutes a clear abuse of discretion. This court should not uphold a construction that gives no effect to a central term in the controlling regulations. B. The Corps, perhaps recognizing the weakness of its position, does not rely entirely on the argument that structure is a surrogate for function. It contends at times in its opening brief that the stream assessments conducted here were sufficient to satisfy both the structure and function inquiries mandated by § 230.11(e). The majority attempts to uphold the Corps on this alternative ground as well. Unfortunately, because the majority does not come to grips with the plain language of § 230.11(e), its review lacks both a defined scope and a clear legal standard. The majority credits the Corps for using “detailed measurements provided by [permit applicants] on the benthic macroinver-tebrate population to draw conclusions about the level of stream function at the proposed fill sites.” Ante at 200. The majority also credits the Corps for making use of the EPA’s Rapid Bioassessment Protocol (RBP) and the West Virginia Stream Condition Index (WVSCI or Index). But because the majority has not identified the relevant stream functions to be measured, it is not possible to say whether these assessment protocols provide relevant information. Further, by failing to acknowledge or employ in its review the relevant language from the regulations that requires the Corps to assess the “nature and degree of effect” that the proposed fills will have on stream function, the majority affords itself no legal basis for testing the sufficiency of any assessment of stream function. To the extent that the record provides some indication of the appropriate meaning of “function” as used in § 230.11(e), the Corps’ assessment of function was demonstrably inadequate. There is some dispute among the parties as to which stream functions are appropriately covered by § 230.11(e). However, as mentioned above, the EPA (with Corps’ approval) is in the process of developing a functional assessment protocol for streams in West Virginia’s Huntington District that will serve as the standard for future § 230.11(e) functional assessments. Hence, the most logical place to begin an inquiry into the meaning of the term “function” in § 230.11(e) is with EPA’s proposed (or draft) stream assessment protocol. Under the proposed protocol: Contractor activities would involve field and laboratory studies aimed at conventional measurement of headwater stream functional processes in mined and un-mined watersheds. These functional processes can include, but are not limited to: 1) organic matter decomposition rates; 2) nutrient transport and uptake; 3) primary production and metabolism; 4) secondary production; and 5) organic matter retention and transport. J.A. 1836. A look at only those functions listed by the EPA in its proposed functional stream assessment protocol reveals that the assessments carried out by the Corps were deficient. The data provided by the EPA’s RBP and the WVSCI, the protocols used by the Corps in this case, are insufficient to assess the bulk of the functions listed by the EPA to a degree that satisfies the requirements of § 230.11(e). Indeed, the Corps, in its CDD for the Republic No. 2 mine, acknowledges the limitations of using the EPA’s RBP to assess stream function: While the rapid bioassessment protocol does not provide a detailed analysis of nutrient cycling, organic matter dynamics, respiration, measurement of primary/secondary production, as is typically found in scientific research analysis[,] it does provide baseline data that can be used to analyze chemical, physical, and biological conditions of the stream channel. J.A. 3570. The functions about which the RBP fails to provide detailed analysis are the very functions the EPA’s proposed functional analysis would evaluate. And the plain language of § 230.11(e) — requiring an assessment of the “nature and degree of effect that the proposed discharge will have ... on the structure and function of the aquatic ecosystem and organisms”— makes clear that stream function must be assessed in some detail. The Corps does not explain how the baseline data on stream condition generated by the RBP will assist in any way in measuring the (actual) stream functions for which the RBP provides no detailed analysis. Accordingly, the RBP appears to be an inadequate substitute for a functional assessment protocol. The WVSCI fares only slightly better. The Index purports to measure stream “quality” and notes that its surveys “are used to measure the attainment of biological integrity.” A Stream Condition Index for West Virginia Wadeable Streams, at 3 (July 21, 2000), available at http://www. wvdep.org/Does/536_WV-Index.pdf. The Index asserts that it is “an appropriate indicator of ecological quality, reflecting biological responses to changes in physical habitat quality, the integrity of soil and water chemistry, geologic processes, and land use changes (to the degree that they affect the sampled habitat).” Id. at 4. It makes no mention of organic matter processing or retention, primary or secondary production, nutrient retention, cycling, transport or uptake, or respiration. And nowhere does it claim to be a functional assessment protocol. It is not enough that the Corps’ expert Dr. Mindy Armstead testified that the WVSCI’s EPT Index “was a good surrogate for the functional measurement of secondary biomass,” J.A. 4424-25, one of the functions to be covered by the EPA’s functional assessment protocol. Measurement of a single function does not make the Index an adequate replacement for the required functional assessment. For decomposition and primary production, two other functions to be measured under the EPA’s proposed functional assessment protocol, the Corps’ experts claim only that the WVSCI provides information about their presence or absence. The mere ability of an assessment protocol to detect the presence or absence of a stream function is insufficient to fulfill the more exacting “[determine the nature and degree of effect” language of § 230.11(e). And for the remaining functions slated to be measured under the EPA’s functional stream assessment protocol — nutrient uptake and processing, organic matter retention, and downstream export of organic matter — the Corps makes no claim that the WVSCI provides any relevant information at all. The majority opinion considers only one stream function — nutrient cycling' — and concedes that the Corps’ assessment of that function was deficient: “The Corps’ CDDs themselves acknowledge this shortcoming, noting that the effects of filling ephemeral streams on nutrient cycling are difficult to measure and that there is a lack of consensus among the relevant agencies about how best to collect quantitative evidence regarding these functions.” Ante at 200. The majority excuses this deficiency, noting that: “[t]o compensate for these effects ... the Corps’ permitting decisions call for limiting impacts to channels that do not sustain long periods of flow and for establishing a riparian buffer around mitigation sites.” Ante at 200. Unfortunately, the Corps’ attempt to minimize impacts to stream functions that it has failed to assess sufficiently has no bearing on whether it has met its obligations under § 230.11(e) to “[determine the nature and degree of effect” on stream function. Finally, and most fundamentally, in asserting that the proposed mitigation measures meet regulatory requirements, the Corps implicitly concedes that the stream assessment protocols used in this case failed to sufficiently assess stream function. The Corps’ Regulatory Guidance Letter (RGL) provides that “Districts should require compensatory mitigation projects for streams to replace stream functions where sufficient functional assessment is feasible.” J.A. 1174. Where sufficient functional assessment is not feasible, the RGL permits the Corps to rely on a substitute one-to-one linear stream foot mitigation that does not specifically account for lost stream function. In this case, the Corps does not claim that its mitigation measures will replace lost stream functions. The Corps asserts in its opening brief that its “approach is not arbitrary and capricious just because the precise functions of ephemeral or intermittent streams are not being replaced” by the mitigation measures required in this case. Corps’ Br. at 47. Instead, the Corps elects to rely on the substitute one-to-one mitigation ratio. By choosing to rely on one-to-one mitigation rather than attempting to replace lost function, the Corps implicitly but clearly concedes that the EPA’s RBP and the WVSCI did not provide for an adequate assessment of stream function. If these protocols had generated the requisite data for a sufficient functional assessment, the Corps could not have logically invoked the RGL’s one-to-one mitigation provisions. Since the Corps’ actions show that it does not believe its own contention that it has sufficiently assessed stream function, this court is under no obligation to believe it either. II. On the issue of the adequacy of the Corps’ proposed mitigation measures, the majority again errs in overlooking the plain language of the relevant regulations. The majority chooses to rely on internal Corps guidance documents that are inconsistent with, and must therefore yield to, the clear requirements of the regulations. A. The valley fills will bury more than 68,-000 feet of intermittent and ephemeral headwater streams. The Corps does not dispute that, absent mitigation measures, the adverse impacts of the proposed pro-jeets would be significant, and an Environmental Impact Statement (EIS) would therefore be required under NEPA. The Corps instead asserts that the mitigation measures it has approved are sufficient to reduce adverse impacts of the fills below the threshold of significance and avoid significant degradation of waters of the United States. The Corps bases these assertions on the anticipated success of a combination of stream creation and enhancement of existing stream channels. The Corps does not claim that the proposed mitigation will replace lost stream function; rather the mitigation will replace or enhance at least as many stream feet as the valley fills will bury. To justify allowing the Corps to approve this so-called one-to-one mitigation in lieu of requiring the replacement of lost stream function, the majority relies on the language of a Memorandum of Agreement (MOA) between the Corps and the EPA and an internal Corps’ Regulatory Guidance Letter (RGL). From a legal standpoint, the majority’s discussion of the MOA and RGL is largely beside the point. To the extent that the MOA and RGL are inconsistent with the plain language of the regulations, the regulations control. The MOA itself states that it “does not change the substantive requirements of the Guidelines [regulations]. It is intended to provide guidance regarding the exercise of discretion under the Guidelines.” J.A. 1165. Similarly, RGLs are “ ‘issued without notice and comment and do not purport to change or interpret the regulations applicable to the section 404 program ... [and] are not binding, either upon permit applicants or Corps District Engineers.” Northwest Bypass Group v. U.S. Army Corps of Eng’rs, 470 F.Supp.2d 30, 51 (D.N.H.2007) (quoting Envtl. Def. v. U.S. Army Corps of Eng’rs, No. 04-1575(JR), 2006 WL 1992626 at *7 (D.D.C. July 14, 2006)). An analysis of the sufficiency of the mitigation in this case must begin with the provisions that are truly mandatory: those in the regulations. Compliance with 40 C.F.R. § 230.11(e) is non-discretionary. The Corps cannot issue a § 404(b)(1) permit without first assessing the “nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms.” Thus, when confronted with a decision about the appropriate mitigation measures to require, the Corps should never find itself in a position where it has failed to sufficiently assess stream function; § 230.11(e) always requires the Corps to conduct this assessment. Considered in light of the clear requirement of § 230.11(e), the provision in the Corps’ RGL that purports to permit one-to-one mitigation where a sufficient stream functional assessment is not feasible can never be properly triggered. Simply put, the Corps cannot rely on an illegal provision in its RGL to justify a failure to mitigate for lost stream functions. The majority’s analysis skirts the requirements of § 230.11(e). First, the majority observes that “a full functional assessment protocol is not yet available to the Corps.” Ante at 204. It then concludes that under the Corps’ RGL, “where a full functional assessment is not feasible, the only compensatory mitigation measure the Corps must require in a permitting decision is stream replacement on a one-to-one basis.” Ante at 204. The majority’s approach is unsupportable. Whatever it means to sufficiently assess stream function, it should mean the same thing under both § 230.11(e) of the regulations and the Corps’ MOA and RGL. To allow the Corps to interpret sufficiency of assessment differently for purposes of measuring function and determining appropriate mitigation wholly undermines the purposes of mitigation. Indeed, the MOA itself states that “[t]he determination of what level of mitigation constitutes ‘appropriate’ mitigation is based solely on the values and functions of the aquatic resource that will be impacted.” J.A. 1166. It is paradoxical to conclude that the (largely structural) assessments carried out as part of the Corps’ § 230.11(e) analysis adequately measured stream function and to simultaneously conclude that these same assessments provided insufficient data on stream function to require mitigation to replace lost function. The majority’s construction of the Corps’ functional assessment and mitigation requirements defeats the basic goal of the MOA, the RGL, and compensatory mitigation. B. Since the Corps cannot properly rely on its RGL to avoid mitigating for lost stream function, we would ordinarily look next at whether the mitigation measures required by the Corps will adequately replace lost function. This inquiry is premature in the present instance, however, because the Corps did not engage in the functional analysis required by 40 C.F.R. § 230.11(e). Thus, even if we credited the Corps’ almost wholly unsubstantiated assertion that the new stream creation projects required in the CDDs will create working streams, the CMPs and CDDs offer no guarantees that the newly created streams will replace lost headwater stream functions the Corps has failed to quantify. The Corps therefore acted in direct contravention of the applicable regulations. Furthermore, even under the majority’s construction of the Corps’ mitigation duties (allowing for one-to-one mitigation where sufficient functional assessment is not feasible), there is good reason based on the record before us to question whether the mitigation will prevent significant degradation of waters of the United States. As the majority concedes, ante at 205, the Corps offers virtually no scientific support for the viability of creating working streams from scratch, particularly headwa-ter streams. The Corps provides evidence of a single successful stream creation project in Kentucky, but this was not a head-water stream. Here, the bulk of the proposed stream creation in the mitigation plans is to take place in the sediment ditches on the valley fills, where the former headwater streams were located. According to the Draft EIS for Mountaintop Removal Mining and Valley Fills, a document jointly authored by the Corps and other agencies: to date functioning headwater streams have not been re-created on mined or filled areas as part of mine restoration or planned stream mitigation efforts. Most on-site mitigation construction projects have resulted in the creation of palustrine wetlands that resembled ponds. J.A. 862. The Draft EIS adds that “it is not known whether the organic matter processing that occurs in created wetlands would mimic the processing found in a natural stream system.” J.A. 863. In addition to the lack of evidence about the viability of stream creation, the U.S. Fish and Wildlife Service (USFWS) and its West Virginia Field Office (WVFO) submitted a joint comment on the Laxare East permit expressing a continued belief that it is not possible to fully replace the critical aquatic and terrestrial ecosystem functions of healthy headwater streams. These agencies also commented that they were unaware of any scientific support for the concept that on-bench sediment ditches can be considered biologically equivalent to, or even rough approximations of, flowing streams. These comments undercut the Corps’ contention that the mitigation will produce its advertised results. In sum, the regulations in 40 C.F.R. Part 230 do not allow the Corps to engage in one-to-one mitigation in this case to claim it has achieved no significant degradation of waters of the United States. Even if they did, the Corps has not provided sufficient evidence to allow this court to conclude that the impacts of the fills will truly be insignificant. C. Pursuant to NEPA an agency engaging in a major federal action may decline to issue a comprehensive environmental impact statement (EIS) only if, after mitigation measures are accounted for, the agency concludes the action (or project) will result in no significant adverse impact to the human environment. See 42 U.S.C. § 4332(2)(C), 40 C.F.R. § 1501.4(e). Because, as I have explained, the Corps has failed to establish that the permitted valley fill projects will not significantly degrade the waters of the United States, I must also conclude that the Corps has likewise failed to establish that the projects will have no significant adverse environmental impact. Consequently, the Corps has not justified its decision to decline to issue an EIS for the fill projects, and NEPA’s requirements have not been satisfied. III. Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment. . The majority contends that I have not afforded the Corps the appropriate level of deference in interpreting its regulations. Ante at 199 n. 16. The majority does acknowledge, however, that the Corps may not proffer an interpretation that is "plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Of course, "[t]he agency’s interpretation need not be the best or most natural one by grammatical or other standards. Rather, it need only be a reasonable construction of the regulatory language.” Dist. Mem. 7 Hosp. of Southwestern North Carolina, Inc. v. Thompson, 364 F.3d 513, 518 (4th Cir.2004) (internal quotations and citations removed). As I have explained, the Corps’ contention that a structural assessment may substitute for a functional one is wholly inconsistent with § 230.1 l(e)’s clear mandate that the Corps assess both structure and function. Further, in light of the Corps’ failure to define "function” for purposes of § 230.11(e), its unsubstantiated assertion that the structural assessments used in this case provide adequate information about stream function cannot be upheld as a reasonable construction of its regulations. See Dist. Mem’l Hosp., 364 F.3d at 518. . The majority points out that any attempt by this court "to define stream function beyond these guidelines [that is, the language in § 230.11(e) itself] would certainly be inappropriate judicial intrusion into the Corps and EPA’s sphere of authority.” Ante at 200 n. 19. I do not disagree. The majority’s observation underscores precisely why the proper judicial resolution of this issue would have been to conclude that the Corps abused its discretion in failing to offer an interpretation of the term "function” as used in § 230.11(e) that is not "plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905. So long as the Corps declines to provide a construction that gives meaning to the operative terms in its regulations, this court cannot uphold the Corps’ actions. I have engaged in what the majority calls an "inappropriate judicial intrusion” only to point out the shortcomings of the majority’s analysis. The majority has determined that the Corps did not abuse its discretion in approving the stream assessments conducted in this case. The majority upholds the Corps in spite of the agency’s unwillingness to define the term "function.” Any evaluation of the majority’s (or the Corps’) determination that the assessment of stream function was adequate, however, necessarily requires giving some meaning to the term "function.” According to the majority, ante at 200 n. 19, "the only clues § 230.11(e) offers regarding the stream functions to be measured are the ... factors” listed in one sentence in § 230.11(e). The sentence provides in full: "Consideration shall be given to the effect at the proposed disposal site of potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms and communities.” 40 C.F.R. § 230.11(e) (2006). The majority mistakes the significance of these "factors.” They are not stream functions. The term "function” refers to the "role, duty, work” or "purpose” of a thing. Webster's Third New Int’l Dictionary 920 (2002). The factors listed in § 230.11(e) are merely stream characteristics (or attributes), and § 230.11(e) requires the Corps to analyze the effects that changes to these stream characteristics will have on the "recolonization and existence of indigenous aquatic organisms and communities.” Compliance with this sentence cannot be determinative of whether the Corps has adequately analyzed the effects of the proposed fills on stream function. Since the factors identified by the majority cannot constitute the stream functions contemplated by § 230.11(e), there is no reason to discount the relevance of the proposed functional protocol currently under development for the Huntington District of West Virginia. Until the Corps itself identifies a specific set of functions to be measured, nothing could be more relevant to determining the meaning of “function” in § 230.11(e) than the list of the stream functions proposed to be measured in future § 230.11(e) functional analyses. Consequently, nothing could be more useful in reviewing the adequacy of the assessment protocols used in this case than this proposed list of stream functions. The Corps should not be rewarded for its recalcitrance in defining function and for its lengthy delay in developing a usable functional assessment protocol for West Virginia. . If we pieced together the stream functions that the Corps itself identifies in the Combined Decision Documents (CDDs) in this case, the list is, if anything, more inclusive than the preliminary list proposed to be measured by the EPA. Specifically, the Corps in the Black Castle CDD states that: "Some important functions of ... headwater streams include the maintenance of natural discharge regimes, the regulation of sediment export, the retention of nutrients, the processing of terrestrial organic matter, and the exportation of water nutrients and organic matter to downstream areas.” J.A. 1823; see also, Camp Branch CDD, J.A. 1319 (same language). The Corps also observes in its § 230.11(e) analysis in the Republic No. 2 CDD that nutrient cycling, organic matter dynamics, respiration, and primary and secondary production are functions "typically found in scientific research analysis.” J.A. 3570. . The majority quotes 40 C.F.R. § 230.10(d)— providing that a § 404 permit cannot issue "unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge [of fill material] on the aquatic ecosystem” — but does not mention other relevant provisions of section 230.10 that should also inform its analysis. See ante at 201-02. Read in its entirety, 40 C.F.R. § 230.10 requires that a permitted dredge or fill activity not only include appropriate and practicable steps to minimize potential adverse impacts, but also that the discharge result in no significant degradation of waters of the United States, taking into account required mitigation. Section 230.10 describes four restrictions on discharge, all of which must be met before a dredge or fill permit can issue. Section 230.10(c) provides that "no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2006). Section 230.12(a)(2) (2006) allows the Corps to permit a dredge or fill activity as “complying with the requirements of these Guidelines with the inclusion of appropriate and practicable discharge conditions (see Subpart H) to minimize pollution or adverse effects to the affected aquatic ecosystems.” But paragraph (a)(3) makes clear that a project must be "[sjpecified as failing to comply with the requirements of these Guidelines where ... (ii)[t]he proposed discharge will result in significant degradation of the aquatic ecosystem under § 230.10(b) or (c)_” Consequently, when § 230.10 is taken as a whole, it is apparent that for a discharge of dredge or fill material into waters of the United States to be permitted, not only must appropriate steps have been taken to minimize adverse impacts, but the Corps must also find that, once appropriate mitigation measures are accounted for, the discharge will not significantly degrade the waters of the United States. . The Corps does in various places make claims that the mitigation it requires will replace lost stream functions. However, the functions that the Corps claims will be replaced — movement of water, movement of sediment, nutrient cycling, and organic matter retention — only partially coincide with the headwater functions that the Corps admits will be lost under the valley fills, namely, maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. Further, the Corps has offered virtually no evidence to support its claim that the mitigation measures will replace lost stream functions.

Fairbanks North Star Borough v. U.S. Army Corps of Engineers

FISHER, Circuit Judge: The Clean Water Act (“CWA”) makes it unlawful to discharge dredged and fill material into the waters of the United States except in accord with a permitting regime jointly administered by the Army Corps of Engineers (“Corps”) and the Environmental Protection Agency (“EPA”). See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Fairbanks North Star Borough (“Fairbanks”) seeks judicial review of a Corps’ “approved jurisdictional determination,” which is a written, formal statement of the agency’s view that Fairbanks’ property contained waters of the United States and would be subject to regulation under the CWA. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s dismissal on the pleadings for lack of jurisdiction. The Corps’ approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704. BACKGROUND “The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial.” Rapanos v. United States, 547 U.S. 715, 721, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion). Under the CWA, “any discharge of dredged or fill materials into ... ‘waters of the United States’f] is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to” Section 404 of the CWA, which is codified at 33 U.S.C. § 1344. Leslie Salt Co. v. United States, 55 F.3d 1388, 1391 (9th Cir.1995); see also Riverside Bayview, 474 U.S. at 123, 106 S.Ct. 455; Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 486 F.3d 638, 646 (9th Cir.2007). “The Corps has issued regulations defining the term ‘waters of the United States,’ ” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 163, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), to include most wetlands adjacent to waters of the United States that are not themselves wetlands, see 33 C.F.R. § 328.3(a)(7). Fairbanks wishes to develop a 2.1 acre tract of property for its residents’ recreational use. It intends to build “playgrounds, athletic fields, concession stands, restrooms, storage buildings, road[s], and parking lots,” the construction of which will “include the placement of fill material.” In October 2005, Fairbanks wrote to the Corps to “ask[] for [its] review and determination” that it could place fill material on its property without further ado. It asked the Corps to “provide a detailed, scaled drawing showing the ... wetlands in relation to the lot boundaries.” The Corps thereafter issued a “preliminary” jurisdictional determination finding that Fairbanks’ entire parcel contained wetlands. Fairbanks then requested that the Corps provide an “approved” jurisdictional determination. In December 2005, the Corps obliged Fairbanks and replied: Based on our review of the information you furnished and available to our office, we have determined that the entire parcel described above contains waters of the United States ... under our regulatory jurisdiction.... This approved jurisdictional determination is valid for a period of five (5) years ... unless new information supporting a revision is provided to this office.... The Corps’ letter went on to remind Fairbanks that “Section 404 of the Clean Water Act requires that a[] permit be obtained for the placement or discharge of dredged and/or fill material into waters of the U.S., including wetlands, prior to conducting the work.” Fairbanks took a timely administrative appeal of the approved jurisdictional determination, which the Corps found to be without merit in May 2006. Fairbanks has not since applied for a Section 404 permit. Nor has the Corps initiated any pre-enforcement or enforcement action. In August 2006, Fairbanks brought this suit to set aside the Corps’ approved jurisdictional determination. According to Fairbanks, the Corps acted unlawfully in asserting that its property was subject to CWA regulatory jurisdiction. Fairbanks contended that its property could not possibly be a wetland because it is “underlain by shallow permafrost at a depth of 20 inches” that does not “exceed zero degrees Celsius at any point during the calendar year.” A Corps regulation, which is not challenged here, provides that: The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. 33 C.F.R. § 328.3(b). To identify wetlands under this regulation, the Corps uses its 1987 Wetlands Delineation Manual (“Manual”). See Energy and Water Development Appropriations Act, Pub.L. No. 102-377, 106 Stat. 1315, 1324 (1992); United States v. Deaton, 332 F.3d 698, 712 (4th Cir.2003). The Manual explains that wetlands have the three “general diagnostic environmental characteristics” of vegetation, soil and hydrology. Manual ¶ 26(b). Generally, “evidence of a minimum of one positive wetland indicator from each parameter (hydrology, soil, and vegetation) must be found in order to make a positive wetland determination.” Id. ¶ 26(c). Fairbanks alleged that its property lacks wetlands hydrology, because it is not “periodically inundated” and does not have “saturated soils during the growing season.” Id. ¶ 46. The Manual defines “growing season” as “[t]he portion of the year when soil temperatures at 19.7 in. below the soil surface are higher than biologic zero (5 Q” and notes that “[f]or ease of determination this period can be approximated by the number of frost-free days.” Id. at App. A. Fairbanks asserted that the Corps’ jurisdictional determination improperly relied on a special definition of “growing season,” which Fairbanks calls the “Alaska Rule,” inconsistent with the Manual’s definition. The Alaska Rule states that the frost-free period based on a “28 degree air temperature” best fits the “observed growing season in most parts of [Alaska].” See Army Corps of Engineers, Alaska District, Special Public Notice 03-05 (July 25, 2003). By using the Alaska Rule, Fairbanks claimed, the Corps could establish a growing season even when a property is underlain by shallow permafrost, and never has a subsurface soil temperature higher than biologic zero. Consequently, the Corps’ finding that Fairbanks’ property was a wetland subject to CWA regulatory jurisdiction was erroneous. The district court granted the Corps’ motion for judgment on the pleadings, concluding that the approved jurisdictional determination did not constitute final agency action under the APA, that Fairbanks’ challenge was unripe and that the CWA statutorily precluded judicial review. Fairbanks timely appealed. STANDARD OF REVIEW ‘We review a judgment dismissing a case on the pleadings de novo.” Dunlap v. Credit Prot. Ass’n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir.2005) (per curiam). “A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted). “We review de novo the district court’s determination that it lacked subject matter jurisdiction. We therefore do not defer to the agency’s position on whether agency action is final.” Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979 n. 1 (9th Cir.2006) (internal citations omitted). DISCUSSION As a matter of first impression, we hold that the Corps’ issuance of an approved jurisdictional determination finding that Fairbanks’ property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review. “As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). The approved jurisdictional determination represented the Corps’ definitive administrative position that Fairbanks’ property contained wetlands. But, as we shall explain, it did not “ ‘impose an obligation, deny a right, or fix some legal relationship.’ ” Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir.1990) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)). Because finality is a jurisdictional requirement to obtaining judicial review under the APA, the district court correctly dismissed Fairbanks’ action. See Or. Natural Desert Ass’n, 465 F.3d at 982. We do not reach the issues of ripeness and statutory preclusion of judicial review. I. We agree with Fairbanks that an approved jurisdictional determination upheld in the Corps’ administrative appeal process “mark[s] the consummation of the agency’s decisionmaking process” for determining whether the Corps conceives a property as subject to CWA regulatory jurisdiction. There is no question that the Corps has asserted its ultimate administrative position regarding the presence of wetlands on Fairbanks’ property “on the factual circumstances upon which the [determination is] predicated[.]” See Alaska Dep’t of Envtl. Conservation v. EPA 244 F.3d 748, 750 (9th Cir.2001) (“Alaska I”); see also Alaska Dep’t of Envtl. Conservation v. EPA 298 F.3d 814, 818 (9th Cir.2002), aff'd 540 U.S. 461, 483, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (“Alaska II”). The approved jurisdictional determination states on its face that it “is valid for a period of five (5) years” and that the Corps’ position would change only if “new information supporting a revision is provided.” It is “devoid of any suggestion that it might be subject to subsequent revision” or “further agency consideration or possible modification.” See City of San Diego v. Whitman, 242 F.3d 1097, 1102 (9th Cir.2001) (quoting Ontario v. EPA 912 F.2d 1525, 1532 (D.C.Cir.1990), and Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436-37 (D.C.Cir.1986)). By regulation, the Corps has established a formal procedure for “[a]ffected parties]” to solicit its official position about the scope of CWA regulatory jurisdiction. See 33 C.F.R. § 331.2. A ju-risdietional determination is a “written Corps determination that a wetland ... is subject to regulatory jurisdiction under [the CWA].” Id.; see also Jurisdictional Determinations, Corps Regulatory Guidance Letter 08-02, at 1 (June 26, 2008) (“An approved [jurisdictional determination] is an official Corps determination that jurisdictional [waters under the CWA] are either present or absent on a particular site”). After the district engineer’s approved jurisdictional determination has been upheld by the division engineer, no further administrative appeal is possible. See 33 C.F.R. § 331.9. At that point, the approved jurisdictional determination is deemed to be “final Corps agency action” and a “final Corps decision” for administrative purposes. Id. § 320.1(a)(2), (a)(6) (emphasis added). The regulations thus delimit the stopping point of the Corps’ decisionmaking process for the issuance and review of jurisdictional determinations. An approved jurisdictional determination upheld on administrative appeal is the agency’s “last word” on whether it views the property as a wetland subject to regulation under the CWA. See Sierra Club v. U.S. NRC, 825 F.2d 1356, 1362 (9th Cir.1987). No further agency decision-making on that issue can be expected, a clear indication that the first prong of the Bennett finality test is satisfied. See id. The Corps argues that an approved jurisdictional determination merely helps parties “determine where they stand on potential permitting issues” and “necessarily entails the possibility of further administrative proceedings,” like permit applications. As such, the determination is “only[a] step[ ] leading to an agency decision, rather than the final action itself.” See Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir.1999). Fairbanks correctly responds that this argument “conflate[s] one ... decision with a future yet distinct administrative process.” The Corps’ regulations throughout treat jurisdictional determinations and permitting decisions as discrete agency actions. Notably, jurisdictional determinations “do not include determinations that a particular activity requires a ... permit.” 33 C.F.R. § 331.2. The Corps’ reliance on City of San Diego is misplaced in view of the agency’s provision of a formal procedure for acquiring its settled views about the scope of CWA jurisdiction outside of and apart from the permitting process. Cf. City of San Diego, 242 F.3d at 1101(reasoning that letter did not mark consummation of decisionmaking process because it was only “upon completion of the permit appeal process” that agency would decide applicability of statute). That Fairbanks might later decide to initiate some other Corps process after obtaining the approved jurisdictional determination does not detract from the definiteness of the determination itself. An approved jurisdictional determination announces the Corps’ considered, definite and firm position about the presence of jurisdictional wetlands on Fairbanks’ property at the time it is rendered. Accordingly, we conclude that it marks the consummation of the agency’s decision-making process as to that issue. II. Although Fairbanks is correct that the first Bennett requirement is satisfied, the second is not. We hold that the Corps’ approved jurisdictional determination finding that Fairbanks’ property contained wetlands subject to CWA regulatory jurisdiction is not an “action ... by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett, 520 U.S. at 178, 117 S.Ct. 1154; see also Or. Natural Desert Ass’n, 465 F.3d at 987(examining “whether [challenged action] has any legal effect that would qualify it as a final agency action under Bennett’s second finality requirement”). From this it follows that judicial review under the APA is unavailable. Fairbanks’ rights and obligations remain unchanged by the approved jurisdictional determination. It does not itself command Fairbanks to do or forbear from anything; as a bare statement of the agency’s opinion, it can be neither the subject of “immediate compliance” nor of defiance. See FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Up to the present, the Corps has “expresse[d] its view of what the law requires” of Fairbanks without altering or otherwise fixing its legal relationship. See AT & T v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001). This expression of views lacks the “status of law or comparable legal force.” See Ukiah Valley Med. Ctr., 911 F.2d at 264. In any later enforcement action, Fairbanks would face liability only for noncompliance with the CWA’s underlying statutory commands, not for disagreement with the Corps’ jurisdictional determination. See 33 U.S.C. § 1319(b)-(e), (g) (providing criminal, civil and administrative penalties for violation of the CWA, but not referring to approved jurisdictional determinations); cf. Tenn. Valley Auth. v. Whitman, 336 F.3d 1236, 1255-57 (11th Cir.2003) (reasoning that Clean Air Act compliance orders have status of law because statute “undeniably authorizes[s] ... penalties based solely upon noncompliance” with them). At bottom, Fairbanks has an obligation to comply with the CWA. If its property contains waters of the United States, then the CWA requires Fairbanks to obtain a Section 404 discharge permit; if its property does not contain those waters, then the CWA does not require Fairbanks to acquire that permit. In either case, Fairbanks’ legal obligations arise directly and solely from the CWA, and not from the Corps’ issuance of an approved jurisdictional determination. See Gallo Cattle Co. v. USDA, 159 F.3d 1194, 1199 (9th Cir. 1998) (agency decision not final agency action because potential legal consequences flowed only from the plaintiffs “disregard of its statutory obligation”). Whether Fairbanks’ property is a jurisdictional wetland (i.e., contains waters of the United States) depends on its “vegetation, soil and hydrology” — the land is what and where it is. The Corps does not alter that physical reality or the legal standards used to assess that reality simply by opining that a particular site contains waters of the United States. See Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 16 (D.C.Cir.2005) (agency action that “left the world just as it found it ... cannot be fairly described as implementing, interpreting, or prescribing law or policy”) (internal quotation marks omitted). In withholding judicial review of the Corps’ approved jurisdictional determination, we do not impair Fairbanks’ ability to contest the existence of CWA regulatory jurisdiction. See Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 408 F.3d 638, 647 (9th Cir.2005); see also Nat’l Ass’n of Home Builders, 415 F.3d at 15. It is settled law that the federal courts have the final say on the scope of the CWA. In exercising that authority, we would not give the government’s position that CWA regulatory jurisdiction exists any particular deference simply because the Corps’ views on the matter were formulated in the context of an approved jurisdictional determination rather than, for example, a permit application or enforcement proceeding. Despite all this, Fairbanks urges that the Corps’ approved jurisdictional determination has three legal consequences: it prevents Fairbanks from claiming in mitigation that it had acted with good faith; it effectively requires Fairbanks to submit to the CWA’s permitting regime before proceeding with construction; and it deprives Fairbanks of a “negative” jurisdictional determination, which might have been relied upon as a defense to enforcement action. We do not consider these arguments persuasive and shall address each in turn. “In determining the amount of a civil penalty the court shall consider ... any good-faith efforts to comply with the applicable requirements [of the CWA].... ” 33 U.S.C. § 1319(d) (emphasis added). As even the Corps recognizes, an approved jurisdictional determination could “eventually be evidence on the issue of whether a particular course of conduct was undertaken in good or bad faith.” But the possibility that Fairbanks might someday face a greater risk of increased fines should it proceed without regard to the Corps’ assertion of jurisdiction does not constitute a legal consequence of the approved jurisdictional determination. Cf. City of Fremont v. FERC, 336 F.3d 910, 914 (9th Cir.2003) (“Because the FERC orders attach legal consequences to the future ... proceedings, they satisfy the finality prong of our analysis.”) (emphasis added). Section 1319(d) does not mention jurisdictional determinations, much less assign them any particular evidentiary weight; thus, any difficulty Fairbanks might face in establishing good faith flows not from the legal status of the Corps’ determination as agency action, but instead from the practical effect of Fairbanks having been placed on notice that construction might require a Section 404 permit. See Ctr. for Auto Safety v. NHTSA, 452 F.3d 798, 811(D.C.Cir.2006); Nat’l Ass’n of Home Builders, 415 F.3d at 15. The Corps’ approved jurisdictional determination has no more legal effect on Fairbanks’ ability eventually to assert a good faith defense than would, for example, a report by a private wetlands consultant informing Fairbanks that its property contained wetlands. Fairbanks’ second argument, that the Corps’ approved jurisdictional determination “as much as requires” and “makes [Fairbanks] subject to the CWA permitting regime, an onerous administrative maze,” likewise erroneously conflates a potential practical effect with a legal consequence. We do agree that now that Fairbanks is on the Corps’ radar screen, it is at least plausible that the probability of enforcement action if Fairbanks proceeds with construction without securing a Section 404 permit is greater than it was before it requested an approved jurisdictional determination. Not every agency “decision ... [that] has immediate financial impact,” or even “profound [economic] consequences” in the real world, is final agency action, however. See Indus. Customers of Ne. Util., 408 F.3d at 646-47. Whatever Fairbanks now chooses to do, it will be no more or less in violation of the CWA than if it had never requested an approved jurisdictional determination. The approved jurisdictional determination did not augment the Corps’ legal authority to pursue enforcement action. To the contrary, Fairbanks’ legal obligations — including any obligation to pursue a Section 404 dredge and fill material discharge permit — have always arisen solely on account of the CWA. See Gallo Cattle, 159 F.3d at 1199. Fairbanks’ final point is a non sequitur. It contends that because a Corps determination that a property does not contain “waters of the United States” has legal consequences, a Corps determination that a property does contain jurisdictional waters likewise has legal consequences. Implicit in Fairbanks’ argument is the dubious premise that if an agency’s decisionmaking process has multiple outcomes and any of these outcomes is judicially reviewable, then all of them must be judicially reviewable. We have not been directed to any authority recognizing this as a principle of administrative law. Unsurprisingly so: the law is replete with situations when the availability of judicial review turns on the effect of the agency’s particular decision. Agency action that does not cause injury in fact is not judicially reviewable due to lack of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And agency action that does not “impose an obligation, deny a right, or fix some legal relationship” is not judicially reviewable due to lack of finality. Ukiah Valley Med. Ctr., 911 F.2d at 264. Whether a Corps finding that a property is not subject to regulatory jurisdiction under the CWA would constitute final agency action is beside the point here, where Fairbanks seeks judicial review of a Corps’ finding that its property is subject to CWA regulatory jurisdiction. A negative finding would effectively assure Fairbanks that the Corps would not later be able to fault Fairbanks’ failure to seek a permit. The affirmative finding simply puts Fairbanks on notice that the Corps believes a permit is necessary if Fairbanks decides to proceed with its project. CONCLUSION We do not have jurisdiction to review the Corps’ approved jurisdictional determination finding that Fairbanks’ property contains wetland subject to CWA regulatory jurisdiction. Although the approved jurisdictional determination is the Corps’ official, last word about its view of the status of Fairbanks’ property, the Corps’ view does not impose an obligation, deny a right or fix some legal relationship. Accordingly, it is not final agency action under the APA. AFFIRMED. . On review of a judgment on the pleadings, we "accept all material allegations in the complaint as true and construe them in the light most favorable to [the non-moving party].” Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir.2004) (internal quotation marks omitted and alterations in original). . Fairbanks concedes that the Corps' rescission of the Alaska Rule in March 2006 moots its claim that the Alaska Rule was promulgated without compliance with the APA’s notice- and-comment procedures and does not challenge the district court’s entry of judgment as to drat claim. . This question has not been addressed by any published decision of the courts of appeals. See Greater Gulfport Prop., LLC v. U.S. Army Corps of Eng’rs, 194 Fed.Appx. 250 (5th Cir.2006) (unpublished) (holding that district court lacked jurisdiction to review Corps’ approved jurisdictional determination); Comm’rs of Pub. Works v. United States, 30 F.3d 129 (4th Cir.1994) (unpublished) (same). . Alaska I forecloses the Corps' contention that an approved jurisdictional determination cannot satisfy Bennett's first prong because the Corps might alter its position if the physical condition of Fairbanks’ property changed. We had no difficulty there regarding the EPA's findings as its “last word” about the contested issue because the agency’s position was "unalterable”: it "would change only if the circumstances surrounding the [generator's construction] changed.” Alaska I, 244 F.3d at 750; see also Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C.Cir.2002) ("If the possibility ... of future revision in fact could make agency action non-final as a matter of law, then it would be hard to imagine when any agency rule ... would ever be final.... ”). . With limited exceptions, the Corps’ district engineers are authorized to “issue formal determinations concerning the applicability of the Clean Water Act ... to ... tracts of land...33 C.F.R. § 320.1(a)(6); but cf. id. § 325.9. The district engineer's jurisdictional determination is subject to administrative appeal. Id. § 320.1(a)(2). In determining the appeal, the reviewing officer is to "conduct an independent review of the administrative record to address the reasons for the appeal cited by” the appellant. Id. § 331.3(b)(2). The reviewing officer must render a decision within 12 months of the filing of a request for appeal, id. § 331.8, “document his decision on the merits of the appeal in writing," id. § 331.9(b), and file it “in the administrative record for the project,” thereby concluding the administrative appeal process, id. § 331.9(c). .An agency’s characterization of its own action as final is not "determinative” of our own finality analysis under the APA, Blincoe v. FAA, 37 F.3d 462, 464 (9th Cir.1994) (per curiam), though it does "provide! ] an indication of the nature of the [agency's] action,” City of San Diego, 242 F.3d at 1101 n. 6. The Corps has expressly declined to address "in ... rule-making when a [jurisdictional determination] should be considered a final agency action” for purposes of judicial review. See Final Rule Establishing an Administrative Appeal Process for the Regulatory Program of the Corps of Engineers, 65 Fed.Reg. 16,486, 16,488 (Mar. 28, 2000). . See, e.g., 33 C.F.R. § 331.2(identifying approved jurisdictional determinations, permit denials and declined permits as categories of "appealable action[s]”); id. § 331.3(a)(1) (allowing division engineer to delegate authority when reviewing jurisdictional determinations, but not permit decisions); see also Corps Regulatory Guidance Letter 08-02, at 2-3 (explaining that approved jurisdictional determination need not be secured before initiating permitting process). . Cf., e.g., Alaska II, 540 U.S. at 481 n. 10, 124 S.Ct. 983 (''[T]he stop-construction order imposed 'new legal obligations’ ....”) (emphasis added); Pub. Util. Dist. No. 1 of Snohomish County v. Bonneville Power Admin., 506 F.3d 1145, 1152 (9th Cir.2007) ("[T]hey created new benefits and obligations ....”) (emphasis added); Or. Natural Desert Ass’n, 465 F.3d at 985 n. 10 (recognizing "substantive legal constraints imposed” by the challenged agency action); Alaska I, 244 F.3d at 750 (explaining that the parties bringing suit "would be subject to criminal and civil penalties for the violation of [the agency’s orders], as well as for the violation of the” Clean Air Act itself) (emphasis added). . See, e.g., Baccarat Fremont Developers, LLC v. U.S. Army Corps of Eng’rs, 425 F.3d 1150, 1153 (9th Cir.2005) (reviewing CWA regulatory jurisdiction in context of challenge to discharge permit’s mitigation requirements); United States v. Phillips, 367 F.3d 846, 854-55 (9th Cir.2004) (reviewing CWA regulatory jurisdiction in context of motion to dismiss indictment); Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir.2001) (reviewing CWA regulatory jurisdiction in context of citizen suit). . Fairbanks also contends that an approved jurisdictional determination is judicially reviewable like an interpretive rule that has a "substantial impact on the rights of individuals,” Am. Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 560 (D.C.Cir.1983), or the denial of a permit authorizing an otherwise proscribed activity, John Doe, Inc. v. DEA, 484 F.3d 561, 566-67 (D.C.Cir.2007). These arguments assume the desired conclusion: such agency actions are judicially reviewable only insofar as they have tangible legal consequences or otherwise alter the legal relationship between the parties. See Oregon v. Ashcroft, 368 F.3d 1118, 1120 (9th Cir.2004) (holding that interpretive rule "is a final determination for jurisdictional purposes because the rule impos[es] obligations and sanctions in the event of violation [of its provisions]”) (internal quotation marks omitted and alteration in original). By contrast, the Corps’ approved jurisdictional determination imposes no new or additional legal obligations on Fairbanks. It at most "simply 'reminds' affected parties of existing duties” imposed by the CWA itself and commands nothing of its own accord. See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 876 n. 153 (D.C.Cir.1979). . We appreciate that navigating the CWA permitting process is no small task. See Rapanos, 547 U.S. at 721, 126 S.Ct. 2208 (plurality opinion) (“The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915...Yet, we must keep in mind that these are the costs of statutory compliance with the CWA. Whether or not it has an approved jurisdictional determination in hand, the owner of land that contains waters of the United States must bear those costs. Because any legal obligation to undergo the CWA permitting process does not arise from the Corps having expressed its view that Fairbanks' property is a wetland, we do not reach the Corps’ argument that agency action requiring a party to participate in further agency proceedings is characteristically non-final. Compare Hecla Mining Co. v. EPA, 12 F.3d 164 (9th Cir.1993) (EPA’s decision to list mine as “point source[] discharging toxic pollutants that are responsible for impairing the achievement of water quality standards” not final agency action because it “serve[d] only to initiate proceedings” and required no action on mine’s part until permitting process complete), with Hawaiian Elec. Co. v. EPA, 723 F.2d 1440, 1442-43 (9th Cir.1984) (EPA’s determination that generator’s proposed fuel change constituted a "major modification” was final agency action because it required use of more rigorous "major modification” PSD permit review). . Fairbanks may be correct that an official Corps statement that a property is not a jurisdictional wetland subject to the CWA’s permitting requirements could be the basis for an estoppel defense. When an authorized government official tells the defendant that a course of action is legal and the defendant reasonably relies to its detriment on that erroneous representation, then fairness and due process may prohibit the state from punishing the defendant for that unlawful conduct. See United States v. Brebner, 951 F.2d 1017, 1024-25 (9th Cir.1991); United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir.1987). Courts have recognized that finality can result "if the language of the document is such that private parties can rely on it as a ... safe harbor by which to shape their actions.” Gen. Elec. Co. v. EPA, 290 F.3d at 383 (internal quotation marks omitted).

Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Engineers

ORDER The opinion filed on January 3, 2008 and published at 511 F.3d 1011 (9th Cir.2008), is AMENDED as follows. The sixth sentence of the final paragraph in section VB-l states: The impact of isolated placer mining, which often involves only small-scale operations, in our view is not germane to the cumulative impacts assessment of the Rock Creek Mining Project. That sentence is deleted in its entirety and replaced with the following language: The Corps also considered the cumulative impact of placer mining in the region. In our view, the impact of the isolated, small-scale placer mining that exists in the Nome region today is not germane to the cumulative impacts assessment of the large-scale hard rock mining project at issue here. In addition, we understand that reclamation is required at the end of placer mining projects. See Alaska Stat. § 27.19.020. Because nearly all of the Nome district has been previously mined, much of it prior to the introduction of reclamation requirements, any new placer mining projects will result in remediation of historic mining impacts. The panel has unanimously voted to deny the petition for panel rehearing. Judges Kleinfeld and Gould voted to deny the petition for rehearing en banc, and Judge Fletcher has so recommended. The petition for en banc rehearing has been circulated to the full court, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35(b). The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing or rehearing en banc will be accepted. IT IS SO ORDERED. OPINION GOULD, Circuit Judge: This appeal concerns a permit issued to Defendant-Appellee Alaska Gold Company (“AGC”), by Defendant-Appellee Army Corps of Engineers (“the' Corps”) for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. The project, known as the “Rock Creek Mine Project,” would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres. Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, Susan Steinacher, and Jana Varrati (collectively, “BSC”), allege that the Corps violated the CWA and the National Environmental Policy Act (“NEPA”) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. We conclude that the Corps complied with the requirements of the CWA and NEPA, and affirm the judgment of the district court. I A The Rock Creek Mine Project is a project of Defendant-Appellee AGC. It has a projected life of four to five years and is expected to process 7,000 tons of gold ore per day when operable. The complete project consists of two sites. The first, the “Rock Creek Mine/Mill,” lies six miles north of Nome, Alaska in the Snake River watershed. When completed, the Rock Creek Mine/Mill site would consist of a fifty-acre open pit gold mine, a gold recovery plant, a paste tailings storage facility, two non-acid generating development rock stockpiles, a facility for crushing and processing the gold ore, and buildings used for storage and maintenance purposes. The second facility, the “Big Hurrah Mine,” lies 42 miles east of Nome, Alaska. When completed, the Big Hurrah Mine would consist of a 22-acre open pit gold mine, ore stockpiles, and additional buildings for storage and maintenance purposes. Ore from the Big Hurrah Mine would be trucked to the Rock Creek Mine/ Mill site for processing, so the Big Hurrah Mine would not include processing or tail-ings storage facilities. Both sites are controlled by AGC, through outright ownership or through leases from local Native corporations. The sites of both the Rock Creek Mine/ Mill and the Big Hurrah Mine were historically mined and contain debris and tailing piles from earlier mining activities. At the Rock Creek Mine/Mill site, rock stockpiles from previous mining operations now occupy 62 acres of wetlands. At the Big Hur-rah Mine, the area that would become the open pit mine at this time contains tailings from previous gold mining activities, and Big Hurrah Creek (adjacent to the Big Hurrah Mine) contains tailings that have diverted the creek from its natural path. Both sites figured prominently in Alaska’s early “gold rush” history, commencing late in the nineteenth century. Technological advances and current gold prices have rendered the mining claims economic once more, and impelled the evaluation of prospective development combined with rehabilitation of the sites. The Corps and AGC hope for an economic advantage and environmental improvement as a result. AGC observes that Nome has unemployment rates over twice the state average and that the region currently offers limited opportunities for economic development, and the Corps considered the region’s economic conditions when assessing the permit. The construction and operation of the Rock Creek Mine Project will result in the permanent destruction of 346.5 acres of existing wetlands. Most of these wetlands are located at the Rock Creek Mine/Mill site, where two rock stockpiles, the tailings storage facility, and other facilities would be constructed in existing wetlands. Development of the Big Hurrah Mine would destroy five acres of existing wetlands to widen and improve the existing road to the Big Hurrah Mine. The permit issued by the Corps requires measures to mitigate environmental damage from this project and earlier mining activities at the sites. At the Rock Creek Mine/Mill, these measures include the removal of the rock stockpiles from existing wetlands for placement in newly-constructed storage facilities, the reclamation of wetlands disturbed by previously constructed water-management systems, and the conversion of the mining pit to a pit lake (i.e. the mining pit will be filled with water). At the Big Hurrah Mine, these measures include the use of historic waste rock for improvements to the Big Hurrah access road, the removal of tailings from the Big Hurrah Creek flood plain to restore the natural flow of the creek, and the conversion of the mining pit to a pit lake. The Corps calculates that these mitigation measures will result in the reclamation of 106 acres of previously-disturbed wetlands and the creation of 70 acres of new wetlands. Taking these mitigation measures into account, the Rock Creek Mining Project will result in a net loss of 170.5 acres of wetlands. B AGC applied for a permit from the Corps for the Rock Creek Mine Project in May, 2006. The Corps posted a public notice describing the project on its website on June 1, 2006. The notice included information about a public meeting to be held in Nome on June 26, 2006, and the notice was delivered in electronic or hard-copy format to federal, state, and local agencies, the community of Native Alaskans residing in or near Nome, the City of Nome, the neighboring community of Solomon, adjacent property owners, the Nome Postmaster, and any member of the community who requested a copy. In response to the Corps’ request for comment, the Environmental Protection Agency (“EPA”) requested a thirty-day extension of the comment period. The Corps responded by granting a twenty-day extension. EPA said that it did not have sufficient information to conclude that the project met the requirements of the CWA. Specifically, EPA argued that the project did not appear to be the least damaging practicable alternative, that information regarding mitigation measures and the closure of the site provided by AGC was incomplete, that the Corps had not adequately considered the cumulative effects of all potential mining activities in the area, and that the project did not adequately consider naturally-occurring damage to wetlands in the area. EPA’s response also included a list of seven conditions that it wanted included in any permit for the project. The U.S. Fish and Wildlife Service (“USFWS”) joined EPA’s request for an extension of the comment period and gave proposed conditions to be added to the permit. Along with a series of highly specific site-design conditions, USFWS proposed a permit condition that requires AGC to “work with the Corps, the [USFWS], the EPA, and the [Alaska Department of Natural Resources] to identify additional mitigation opportunities in the project area that will benefit birds.” Local agencies, organizations, and individuals also responded to the request for comment. The City of Nome asked for additional study of the project. Business organizations, including the Nome Chamber of Commerce, supported the project, while many scientific and environmental organizations opposed the project or requested additional study. In addition to these agencies and organizations, thirty-four companies and forty-five individuals wrote in support of the project, while seven individuals opposed it. In August, 2006, the Corps issued a permit for the Rock Creek Mine Project. Thereafter, Plaintiff-Appellants BSC filed suit in the United States District Court for the District of Alaska challenging the permit. In December 2006, the Corps withdrew the permit, informing AGC that the Corps needed additional time to confirm that the Permit Evaluation and Decision Document (“PEDD”) — the document on which permitting decisions are based — was factually complete, accurate, and consistent with applicable law. The Corps then moved for a voluntary remand, which the district court granted. C In February 2007, the Corps issued a revised PEDD for the Rock Creek Mine Project. The revised PEDD reviewed the comments received on the project, the environmental consequences of the project, and the alternative project designs considered. The Corps adopted the seven conditions proposed by the EPA, but dismissed the EPA’s concerns about the analysis of alternatives, cumulative impacts, and natural events. The Corps also adopted USFWS’s recommendations, including the requirement that AGC discuss additional mitigation opportunities with the Corps and USFWS after the project is underway. An Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”) are also included in the PEDD pursuant to 40 C.F.R. § 1508.9. Because of the FONSI, the Corps determined that it was not required to prepare an Environmental Impact Statement (“EIS”) for the project. On March 13, 2007, the Corps issued a new permit for the project. On April 18, 2007, BSC filed a second complaint in the district court challenging the Rock Creek Project and seeking a preliminary injunction and a temporary restraining order to prevent the project from moving forward. The district court denied the motions for a preliminary injunction and for a temporary restraining order, and dismissed the suit with prejudice in a June 8, 2007, opinion. The district court concluded that the Corps properly considered the relevant factors required under the CWA and NEPA, and that it was unlikely that additional study would have changed the Corps’ view on the project. Also, the district court concluded that no injunctive relief was justified because most of the relevant wetlands were filled during the weeks that passed between the Corps’ issuance of the second permit and the filing of BSC’s second complaint. On June 14, 2007, the district court issued an amended opinion clarifying its intention to convert the plaintiffs’ motion for a temporary injunction and for a temporary restraining order into a motion for summary judgment, and correcting a factual error in the June 8, 2006 opinion. On July 5, 2007, BSC filed an emergency motion for an injunction pending appeal. That motion was denied on July 27, 2007. This appeal followed. II We review de novo a district court’s decision to grant summary judgment. Blue Mtns. Biodiversity Proj. v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998). The Corps’ factual determinations are reviewed under the arbitrary and capricious standard. See Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986) (addressing Clean Water Act claims); Nw. Env’tl Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1536 (9th Cir.1997) (addressing NEPA claims). III The permit at the center of this dispute was issued by the Corps pursuant to Section 404 of the CWA, 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States if certain conditions are met. 33 U.S.C. § 1344(d). “The Section 404 permit process is governed simultaneously by Corps Regulations, 33 C.F.R. Parts 320-29, and by EPA guidelines, 40 C.F.R. Part 230. Both sets of rules must be observed.” Hintz, 800 F.2d at 829. The Section 404 permitting process is also governed by NEPA. NEPA was enacted in pursuit of two objectives: “First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natl Res. Def. Com., Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal citations and quotation marks omitted). Unlike the CWA, NEPA does not contain substantive environmental standards, nor does the Act mandate that agencies achieve particular substantive environmental results. Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003). Judicial review of agency decision-making under NEPA is limited to the question of whether the agency took a “hard look” at the proposed action as required by a strict reading of NEPA’s procedural requirements. Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001). IV We first address BSC’s claims under the CWA. A 1 A key issue under the CWA presented by BSC is whether the Corps adequately considered practicable alternatives to the Rock Creek Mining Project design that was ultimately approved. 40 C.F.R. § 230.10(a) provides that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” A practicable alternative is one that is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. “In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics. In addition, the Corps has a duty to consider the applicant’s purpose.” Sylvester v. U.S. Army Corps of Engineers, 882 F.2d 407, 409 (9th Cir.1989) (citation omitted). Where a proposed project does not require access to water, i.e., it is not “water dependent,” the availability of practicable alternatives is presumed. 40 C.F.R. § 230.10(a)(3). The parties agree that the Rock Creek Mining Project is not water dependent. The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, “co-disposal” of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA. BSC challenges this result on several bases. First, BSC argues that the Corps failed to apply the correct presumption of practicable alternatives for projects that are not water dependant. However, the PEDD reflects that the Corps explicitly concluded that the project “is not a water dependant activity” and that therefore “pursuant to 40 C.F.R. 230.10(a)(3), practicable alternatives not involving special aquatic sites are presumed to be available.” The Corps applied the proper presumption. Second, BSC argues that the Corps improperly rejected all possible upland relocation options for the individual mine facilities by evaluating only an “all uplands” alternative, i.e., the placement of the entire project in uplands, without considering the relocation of individual facilities. Specifically, BSC argues that the Corps failed to consider the option of relocating only the North waste dump at the Rock Creek Mine/Mill site to an upland site. In support of this claim, BSC cites to the PEDD’s rejection of an alternative design that would place all facilities in uplands and claims that the Corps failed to consider the relocation of some, but not all, of the facilities. This is incorrect. The Corps considered and rejected the “all uplands” alternative but, contrary to BSC’s assertion, that was not the only alternative design considered. Although the PEDD does not discuss the relocation of the north dump alone, it reflects the Corps consideration of 24 different design alternatives. “While an argument can be made that one of these sites was suitable, it would not be appropriate for [the Court] to overturn the Corps’ contrary finding.” Hintz, 800 F.2d at 834. The PEDD also reflects the Corps’ careful review of the data collected by AGC’s consultants before the Corps issued the permit, and the PEDD notes that representatives from AGC discussed alternative sites with the Corps and/or state officials on at least 59 occasions. The Corps reasonably reviewed the feasible options and reasonably concluded that the proposed design was the best design alternative. 2 BSC next argues that the Corps did not properly weigh the public interest as required by 33 C.F.R. § 320.4(b)(4). That section provides that “[n]o permit will be granted ... unless the district engineer concludes, on the basis of the analysis required in paragraph (a) of this section, that the benefits of the proposed alteration outweigh the damage to the wetlands resource.” Id. Paragraph (a) of § 320.4 includes factors to be considered, including, without limitation: conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people. Id. BSC’s argument is unavailing. The PEDD reviews many relevant factors under 33 C.F.R. § 320.4(a) in a discussion spanning more than twenty pages. In addition to the significant environmental considerations included in the PEDD, the Corps also properly considered the significant economic benefits that are expected to result from the project. Given the relatively poor condition of the local economy in relation to the state overall, we agree that these benefits are weighty in this case. BSC may disagree with the Corps’ determination, but in making that determination the Corps did not arbitrarily or capriciously evaluate the public’s interest. B In a related claim under the CWA, BSC argues that the Corps did not properly consider whether the Rock Creek Mining Project would “cause or contribute to significant degradation of the waters of the United States” as required by 40 C.F.R. § 230.10. Under this section, the Corps is directed to consider the effects of the project while placing “special emphasis on the persistence and permanence of the effects” of the project. Much briefing on this issue relates to the substantive merits of the Corps’ scientific and factual conclusions on the ecological effects of the project. However, the issues properly considered here are whether the Corps’ “decision [to issue the permit] was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Oregon Nat’l Res. Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). We conclude that the Corps acted properly. The PEDD demonstrates that the Corps correctly considered a variety of impacts from the project, and determined that the impacts would be localized or limited in time. Moreover, the Corps stressed that the wetlands that would be filled during the project are not unique to the site, and that the USFWS has determined that wetlands of the type filled in this project are the “common habitat in the Alaska and the Nome region,” exceeding forty percent of the land in the State of Alaska. Accordingly, the Corps concluded that the Project will likely have no impact on the greater ecosystem beyond the project site. Because the Corps thoroughly and rationally considered the relevant factors under 40 C.F.R. § 230.10, it cannot be said that its determination was arbitrary and capricious, or that its conclusion was contrary to law. BSC contends that the Corps has not adequately evaluated the hydrological impacts of the project, which it claims may violate § 401 of the Clean Water Act, 33 U.S.C. § 1341. However, under 33 C.F.R. § 320.4(d) the Corps may accept a certification of compliance with § 401 from the relevant state authority in lieu of conducting its own independent analysis. This certification was issued by Alaska’s Department of Environmental Conservation on August 9, 2006. Although BSC argues that the Alaska Department of Environmental Conservation’s certification does not include consideration of the underground injection system to be used at the site, the certification mentions that system, and the Alaska Department of Environmental Conservation was aware of it when issuing the certification. Under the Corps’ regulations, the certification is conclusive with respect to water quality considerations. Hintz, 800 F.2d at 834. The Corps was not required to undertake the additional analysis that BSC raises, and in any case the Corps included a sufficient discussion of water quality effects in the PEDD. The Corps’ determination that the Rock Creek Mining Project would not “cause or contribute to significant degradation of the waters of the United States” was neither arbitrary and capricious, nor contrary to law. C BSC next argues that the Corps did not require the appropriate mitigation measures required by the CWA. 40 C.F.R. § 230.10 requires that the Corps include “appropriate and practicable” mitigation measures in permits issued under § 404 of the CWA. 40 C.F.R. § 230.10(d); see also 33 C.F.R. § 320.4(r) (explaining the general mitigation policy). BSC contends that the Corps did not implement all of the mitigation measures suggested by the EPA. However, the record demonstrates that “the Corps eonsid-ered[EPA’s] initial concerns, addressed them, and explained why it found them unpersuasive.” Cal. Trout v. Schaefer, 58 F.3d 469, 475 (9th Cir.1995) (internal quotation marks and citation omitted). The Corps implemented all of the EPA’s concrete conditions in the permit and rejected only the more general statements from EPA, the substance of which were addressed elsewhere in the PEDD. The permit includes an array of required mitigation measures, and the Corps has explained its rejection of the other measures considered. BSC also contends that the mitigation measures provided in the permit are insufficient because some mitigation measures have not been fully developed. Specifically, BSC urges that the permit condition requiring that AGC meet with the Corps and USFWS within three months of permit issuance to identify additional mitigation opportunities shows that the Corps has not fully developed the required mitigation plan for the project. We have not squarely addressed the question of whether plans to develop additional mitigation measures in the future can satisfy the CWA’s mitigation requirements. However, in a related context, we have held that prospective mitigation plans satisfied NEPA’s mitigation requirements where the plans were “developed to a reasonable degree.” Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir.2000); see also Tillamook County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1144 (9th Cir.2002) (holding that the Corps “was not required [under NEPA] to develop a complete mitigation plan detailing the precise nature of the mitigation measures nor were the measures required to completely compensate for adverse environmental impacts.”) (internal quotation marks omitted). The mitigation measures contained in the permit here satisfy the CWA’s mitigation requirements. The mitigation measures that are to be developed after permit issuance are only one part of the overall mitigation requirements included in the permit. Where the Corps has undertaken a genuine effort to develop a detailed mitigation plan, the mere fact that one aspect of the plan is not yet finalized will not necessarily lead to the conclusion that the Corps’ decision was arbitrary and capricious. Also, the USFWS, not the Corps, suggested that the mitigation measures be developed after the permit was issued. This belies any suggestion that the Corps was attempting to skirt its responsibilities under the CWA by delaying the development of a mitigation plan. See also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352-53, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (“it would be incongruous to conclude that the Forest Service has no power to act until the local agencies have reached a final conclusion on what mitigating measures they consider necessary.”). Finally, the Corps may be perfectly reasonable in its belief that additional on-site mitigation opportunities will present themselves once the project is underway. That the Corps intends to pursue additional mitigation opportunities at a later time does not conflict with the requirements of the CWA unless the mitigation measures that have been fully developed are inadequate. We conclude that the Corps’ decisions regarding mitigation measures were not arbitrary and capricious, and complied fully with law. V We next address BSC’s claims under NEPA. A BSC argues that the Corps did not provide adequate public notice and comment under NEPA because it did not circulate a draft EA before the final EA was completed. BSC claims that a draft EA must be circulated in order for the Corps to comply with 40 C.F.R. § 1501, which requires the Corps to “involve environmental agencies, applicants, and the public, to the extent practicable” in the preparation of the EA. The Corps and AGC argue in response that NEPA does not require the circulation of a draft EA. Our law currently does not make clear whether NEPA requires the circulation of a draft EA. The regulations do not answer the question. 40 C.F.R. § 1503.1 requires the circulation of a draft EIS, but does not speak to the necessity of a draft EA. 40 C.F.R. § 1506.6 requires that agencies “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures[,]” but does not expressly require the circulation of a draft EA. Nor does current Ninth Circuit case law decide the question. In Anderson v. Evans, we stated that “[t]he public must be given an opportunity to comment on draft EAs and EISs, and public hearings are encouraged to facilitate input on the evaluation of proposed actions.” 371 F.3d 475, 487 (9th Cir.2004). However, the dispute in Anderson concerned whether the government was required to prepare an EIS, not whether there was adequate public notice and comment on the EA — in fact, a draft EA was circulated in Anderson. The statement in Anderson about the circulation of a draft EA is a dictum. In other Ninth Circuit cases we have held that the Ninth Circuit has “not established a minimum level of public comment and participation required by the regulations governing the EA and FONSI process.” Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 970 (9th Cir.2003). The Citizens for Better Forestry opinion quotes Anderson for the proposition that a draft EA must be circulated, but the decision itself relies not on Anderson’s dictum, but rather on the fact that the public was given no notice of the preparation of the EA at all. See id. at 970 (“It is evident, therefore, that a complete failure to involve or even inform the public about an agency’s preparation of an EA and a FONSI, as was the case here, violates these regulations.”) This case presents the first opportunity for us to squarely address the question in a case where the issue is presented. We hold today that the circulation of a draft EA is not required in every case. We do not say that it is always required or that it is never required. Instead, we stress that the regulations governing public involvement in the preparation of EAs are general in approach, see 40 C.F.R. § 1506.6, requiring the circulation of a draft EA in every case would apply a level of particularity to the EA process that is foreign to the regulations. Also, requiring the circulation of a draft EA in every case could require the reversal of permitting decisions where a draft EA was not circulated even though the permitting agency actively sought and achieved public participation through other means. The regulations do not compel such formality. See 40 C.F.R. § 1508.9. Our conclusion is consistent with the views of other circuits, which uniformly have not insisted on the circulation of a draft EA. See Alliance To Protect Nantucket Sound, Inc. v. U.S. Dept. of Amy, 398 F.3d 105, 114-115 (1st Cir.2005) (concluding that “[n]othing in the CEQ regulations requires circulation of a draft EA for public comment, except under certain ‘limited circumstances,’ ” and rejecting Anderson’s contrary language as dicta); Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d 1235, 1240 (2d Cir.2002) (holding that a draft EA must be circulated only in certain limited circumstances); Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004) (“NEPA’s public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS.”); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 548 (11th Cir.1996) (“[T]here is no legal requirement that an Environmental Assessment be circulated publicly and, in fact, they rarely are.”). However, a significant question remains. Given our conclusion that NEPA does not always require the circulation of a draft EA, what level of public disclosure is required under NEPA before issuance of a final EA? Each EA will be prepared under different circumstances, and the regulations have not specified a formal practice for affected agencies. For this reason, practices have not been uniform, and so we will elaborate the factors that should guide the agency. In Sierra Nevada Forest Protection Campaign v. Weingardt, 376 F.Supp.2d at 991-92, the United States District Court for the Eastern District of California considered precisely this issue. After concluding that the agency (there the United States Forest Service) need not circulate a draft EA, the court explained: [the regulations] require that the public be given as much environmental information as is practicable, prior to completion of the EA, so that the public has a sufficient basis to address those subject areas that the agency must consider in preparing the EA. Depending on the circumstances, the agency could provide adequate information through public meetings or by a reasonably thorough scoping notice. Id. at 991. The district court in Sierra Nevada Forest Protection Campaign evaluated this issue soundly, and we commend its approach. As that court observed, “The way in which the information is provided is less important than that a sufficient amount of environmental information — as much as practicable — be provided so that a member of the public can weigh in on the significant decisions that the agency will make in preparing the EA.” Id. Stated another way, we now adopt this rule: An agency, when preparing an EA, must provide the public with sufficient environmental information, considered in the totality of circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process. The Corps satisfied this rule here. Information about the project was widely disseminated throughout the community and environmental information was reasonably and thoroughly tendered to the public. Indeed, in response, the Corps received a high level of public comment from the Nome community, most of it favoring the project. In addition to these significant efforts by the Corps, AGC made substantial efforts to provide additional information to the public, including a weekly newspaper column on the project’s status that ran for about eighteen months, local presentations, radio interviews, and joint efforts with state agencies to explain the permitting process. The quality of the Corps’ dissemination of environmental information to the public and its consideration of public comment, before issuing its EA, was reasonable and adequate. B BSC next argues that the EA prepared by the Corps for the Rock Creek Mining Project is inadequate by four different measures. First, BSC argues that the EA did not adequately discuss cumulative impacts. Second, BSC argues that the alternatives analysis in the EA is inadequate. Third, BSC argues that the Corps reliance on mitigation plans that are not yet fully developed is inadequate. Finally, BSC argues that the Corps failed to adequately analyze environmental impacts in the EA. “NEPA requires that an EIS be prepared for all ‘major Federal actions significantly affecting the quality of the human environment.’ 42 U.S.C.A. § 4332(2)(C) (1994). However, if, as here, an agency’s regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine whether the action will have a significant effect on the environment.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000). The EA is designed to provide sufficient evidence and analysis for the agency to determine whether to prepare an EIS or to issue a FONSI. Id. at 1145; see also 40 C.F.R. § 1508.9 (describing the purposes of the EA). Here, the Corps determined on the basis of the EA that an EIS was unnecessary, and BSC challenges the sufficiency of the EA. 1 BSC contends that the EA did not adequately discuss the cumulative impact of the project. “Cumulative impact” is defined in the regulations as “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.” 40 C.F.R. § 1508.7. We have held that: [a] proper consideration of the cumulative impacts of a project requires some quantified or detailed information ... [g]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided. The analysis must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects. Klamath-Siskiyou Wildlands Center v. Bureau of Land Mng’t, 387 F.3d 989, 993-94 (9th Cir.2004) (internal quotation marks and citation omitted). BSC relies on Klamath-Siskiyou to support its argument. In Klamath-Siskiyou, the plaintiffs challenged the adequacy of EAs prepared by the Bureau of Land Management for timber sales in the Oregon Cascades. Id. at 992. Although that agency had received applications for four timber sales in the same area, it decided to review the four sales with separate EAs. Id. We reversed the district court’s judgment for the agency, concluding that two of the EAs failed to adequately consider the cumulative impacts of the four different projects. Id. at 994-96. Although the EAs contained lengthy sections labeled “cumulated impacts,” the discussion was primarily limited to the impacts of the individual project covered by each EA, with little discussion of the effects of the four sales combined. Id. We held that “the only mention of cumulative effects in the two EAs comes in the form of generalized conclusory statements that the effects are not significant or will be effectively mitigated.” Id. at 996. These were the type of “[g]eneral statements about possible effects and some risk [that] do not constitute a hard look absent a justification regarding why more definitive information could not be provided.” Id. at 995 (citing Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.1998)). The EA here succinctly but adequately discusses the cumulative impacts of the project and points out the Corps’ determination that the project will leave portions of the drainage in “more natural conditions than currently exist” due to mitigation measures included in the permit. To be sure, the EA does not discuss at length other projects taking place in the Nome region. However, the record indicates— and we were assured at oral argument— that this is because there are no projects of similar magnitude at this time. Also, BSC has pointed to no past, present, or reasonably foreseeable future projects comparable in environmental impact to the Rock Creek Mine Project. This fairly distinguishes Klamath-Siskiyou, because there the agency failed to consider four known and comparable projects that were proceeding in the permitting process. Compare Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1123 (9th Cir.2002) (noting that the Corps need not include projects in its cumulative impacts analysis that are highly speculative). The Corps also considered the cumulative impact of placer mining in the region. In our view, the impact of the isolated, small-scale placer mining that exists in the Nome region today is not germane to the cumulative impacts assessment of the large-scale hard rock mining project at issue here. In addition, we understand that reclamation is required at the end of placer mining projects. See Alaska Stat. § 27.19.020. Because nearly all of the Nome district has been previously mined, much of it prior to the introduction of reclamation requirements, any new placer mining projects will result in remediation of historic mining impacts. BSC has not identified any comparable project — past, present, or future— that could call into question the cumulative impacts analysis. Under the total circumstances, we conclude that the Corps’ cumulative impacts analysis was adequate. 2 BSC next argues that the EA does not adequately discuss alternatives to the approved project as required by NEPA regulations found at 40 C.F.R. § 1508.9. It is important to recognize that NEPA’s requirement to assess alternatives, unlike that in the CWA, is a procedural and not a substantive requirement. Our law has made clear the nature of NEPA’s scope: “Under NEPA, an agency’s consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative. An agency need not, therefore, discuss alternatives similar to alternatives actually considered, or alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives for the management of the area[.]” Northern Alaska Env’l Center v. Kempthorne, 457 F.3d 969, 978 (9th Cir.2006) (quotation marks and internal citations omitted). We have already concluded above, in assessing the CWA claim, that the Corps considered many alternatives and satisfied its obligation to select the least environmentally damaging practicable alternative. The CWA analysis is primarily (but not exclusively) concerned with the aquatic ecosystem, 40 C.F.R. § 230.10(a)(2), while the NEPA analysis is more broad and procedurally oriented. However, the Corps has satisfied both standards with its comprehensive, searching, and rational assessment of alternatives. We conclude that the Corps took the “hard look” required by NEPA. 3 BSC next contends that the mitigation plans contained in the EA are inadequate because the EA relies on plans that are to be fully developed after the project begins. “An agency’s decision to forego issuing an EIS may be justified by the presence of mitigating measures.” Wetlands Action Network, 222 F.3d at 1121. However, we have held that an “agency is not required to develop a complete mitigation plan detailing the precise nature ... of the mitigation measures!,]” so long as the measures are “developed to a reasonable degree.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 734 (9th Cir.2001). As discussed more thoroughly in Section C, above, the mitigation plans that have not yet been fully developed are only a small part of the overall mitigation plan for the Rock Creek Mine Project site, on which we conclude that mitigation measures were developed to a reasonable degree. Because the measures overall are developed to a reasonable degree, the Corps could reasonably conclude that additional mitigation measures would be developed after work commenced at the site. 4 Finally, BSC argues that the Corps did not adequately consider the environmental impacts of the Rock Creek Mine Project in the EA. BSC first contends that the 2007 EA does not discuss air quality issues. This is incorrect. The EA requires that AGC develop a plan with the Alaska Department of Transportation to minimize dust, the primary air contaminant to be released from the site. The Environmental Information Document, incorporated by reference in the EA, also includes specific data on the air quality issues at the site, and concludes that there are none that are significant. BSC then asserts that the Corps failed to adequately address water quality issues. However, as discussed in our analysis of the CWA issues above, the Corps was entitled to rely upon the certification from the Alaska Department of Environmental Conservation that the project meets the relevant water quality conditions. Moreover, the Corps considered water quality issues at length, partly in response to comments from EPA, and the Environmental Information Document, incorporated by reference in the EA, discussed water quality issues, including an in-depth analysis of groundwater issues. BSC further contends that the EA did not adequately consider the impact of the project on biological resources. This is also incorrect. The EA and accompanying Environmental Information Document include detailed habitat mapping to determine the wildlife use patterns within the project area. The Corps determined that the mine would likely cause short-term disruption of wildlife in the area, but that “wildlife typically adjusts to this type of disturbance by moving to nearby undisturbed areas where similar habitat types exist.” Because the Corps found that more than 54,000 acres of similar habitat surround the Rock Creek Mine/Mill and Big Hurrah Mine, the Corps concluded that the impacts on wildlife would be minimal. The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law. C BSC argues that the Corps should have prepared an EIS for the Rock Creek Mine Project. “NEPA requires that an [EIS] be prepared for all ‘major Federal actions significantly affecting the quality of the human environment.’ 42 U.S.C.A. § 4332(2)(C).” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d at 730. To determine whether an EIS is necessary, an EA is prepared. Based on the EA, the agency determines whether an EIS should be prepared or a FONSI should be issued. “An EIS must be prepared if ‘substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.’ ” Blue Mtns., 161 F.3d at 1212 (citation omitted). “Whether there may be a significant effect on the environment requires consideration of two broad factors: context and intensity.” Ctr. for Bio. Diversity v. NHTSA, 508 F.3d 508, 553 (9th Cir.2007) (citing Nat'l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 731 (9th Cir.2001)); see also Ctr. for Bio. Diversity, at 553 (listing additional relevant factors). BSC raises issues that it believes demonstrate “substantial questions” about the effects of the Rock Creek Mine Project. First, BSC raises concerns about air quality, biological resources, and water quality. The EA and accompanying Environmental Information Document show that the Corps undertook a reasonable approach to these issues. “Simply because a challenger can cherry pick information and data out of the administrative record to support its position does not mean that a project is highly controversial or highly uncertain.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir.2005). Second, BSC argues that EPA’s disagreement with the Corps regarding mitigation requirements raises a substantial question that requires the preparation of an EIS. However, the EPA’s objections were limited to the propriety of issuing the permit while some details of the mitigation plan were not finalized. The Corps reasonably developed a mitigation plan, including many measures that are set, and has provided a reasoned explanation for these post-issuance conditions, which were suggested by the USFWS. That EPA disagreed with the Corps’ assessment does not create a substantial issue requiring an EIS under these circumstances. “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 368, 109 S.Ct. 1851. We cannot avoid perceiving that the project in its required mitigation favorably affects parts of the Nome area that suffered environmental damage from previously unconstrained resource development. On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA. VI The decisions of the Corps relating to the Rock Creek Mining Project were not arbitrary and capricious. Nor were these decisions contrary to law. AFFIRMED. . For example, condition three concerns the culvert size used in the construction of the mine access road, and condition 6 concerns the use of "bird diverter devices” on power lines in the project area. . The City of Nome, Alaska has a population of about 3,500 people. . The Resource Development Counsel and the Alaska Miners Association, Inc. both supported the project on account of its expected economic benefits. The Center for Science and Public Participation expressed concerns about the reclamation plan for the project and made specific recommendations about the reclamation plan. Trustees for Alaska, on behalf of the Northern Alaska Environmental Center, the Alaska Center for the Environment, and others, argued that the Corps’ public notice procedures were inadequate and that the environmental impacts of the project were both understated and more significant than the economic benefits of the project. . The June 8, 2007 opinion stated that “the draft EA was distributed to the agencies involved and distributed on the web.” In fact, none of the parties claim that a draft EA was circulated before the second PEDD and the EA were complete. This was corrected in the amended opinion. . Similar analysis applies to BSC's claim that the Corps improperly rejected a "dry stack” tailings facility as cost prohibitive. The record shows that the Corps considered the four alternatives presented by AGC's consultants in a "Tailings Alternative Report,” which were incorporated by reference in the PEDD. See Hintz, 800 F.2d at 834 ("The Corps’ regulations do not require the Corps to undertake an independent investigation or to gather its own information upon which to base an EA.”). The Corps concluded, in agreement with the Tailings Alternative Report, that the dry stack method was prohibited by costs. . "Under these Guidelines, effects contributing to significant degradation considered individually or collectively, include: (1) Significantly adverse effects of the discharge of pollutants on human health or welfare, including but not limited to effects on municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites; (2) Significantly adverse effects of the discharge of pollutants on life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, and spread of pollutants or their byproducts outside of the disposal site through biological, physical, and chemical processes; (3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability. Such effects may include, but are not limited to, loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy; or (4) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values.” 40 C.F.R. § 230.10(c). . BSC makes much of a February 6, 1990 Memorandum of Agreement between EPA and the Corps that discusses the mitigation requirements of the CWA at length. BSC emphasizes language in the memorandum stating that mitigation measures should provide, “at a minimum, one for one functional replacement (i.e. no net loss of values)” to satisfy the requirements of the CWA. See generally Memorandum of Agreement Between The Department of the Army and The Environmental Protection Agency, The Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, Sept. 6, 1990, available at http://www.epa.gov/owow/ wetlands/regs/mitigate.html (last accessed Dec. 20, 2007). However, as the Corps and AGC point out, the 1990 memorandum is modified by a May 13, 1994 memorandum that recognizes that one for one replacement of wetlands may be impracticable in Alaska, where "there is a high proportion of land in a watershed or region which is wetlands.” Accordingly, “emphasis is placed on minimizing project impacts to wetlands by reducing the footprint of the project, using co-location of facilities whenever possible, and seeking to locate the project in lower value wetlands.” The memorandum notes, "In Alaska, minimization of impacts has been in many circumstances the only mitigation required.” See Alaska Wetlands Initiative Summary Report, May 13, 1994, available at http:// www. epa.gov/owow/wetlands/pdfialask.pdf (last accessed Dec. 20, 2007). The record demonstrates that the Corps minimized the project footprint by considering a range of alternative placements, and considered (and implemented) additional mitigation options. Given the high percentage of land proximate to the development that is wetlands, we cannot say that the Corps’ approach to minimize impact by selecting low value wetlands for project use is unreasonable. . One district court in our circuit has com-merited that an "agency can never go wrong by releasing a draft EA, and supporting documents,” Sierra Nev. Forest Prot. Campaign v. Weingardt, 376 F.Supp.2d 984, 991 (E.D.Cal.2005). . ''[A]n agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS.” Env’l Prot. Info. Ctr. v. U.S. Forest Service, 451 F.3d 1005, 1016 (9th Cir.2006). . "Significantly” is defined in 40 C.F.R. § 1508.27.

Sierra Club v. United States Army Corps of Engineers

PER CURIAM: In this case, we must resolve the question whether the U.S. Army Corps of Engineers (the “Corps”) exceeded its authority under the Clean Water Act (the “Act”) when it issued a general permit (the “Permit”) authorizing all landowners engaged in “suburban development” in a large contiguous area of the Florida panhandle to discharge limited types and amounts of dredged and fill material into some, but far from all, federal waters in the Permit area, pursuant to specific conditions designed to (a) limit development to specific subunits in the Permit area and minimize significantly the environmental impact of that development, and (b) preserve a large portion of the Permit area with no development at all. The Corps issued the Permit to cover a wide range of activities related to “suburban development” over an expansive (more than 48,000 acres) and contiguous plot of land. The Permit contains a detailed and comprehensive list of special conditions applicable to all suburban development projects in the Permit area. The conditions are intended to preserve intact 10,000 acres of wetlands in the Permit area with no development and to minimize the impact on other wetlands by significantly restricting the scope of permitted activities and reserving for the Corps a mechanism to ensure individual projects comply with the Act. General permits are authorized by Section 404(e) of the Act, which allows their use only when the proposed activities to be governed by the permit are “similar in nature” and will have only minimal impacts on the environment, when considered separately and cumulatively. 33 U.S.C. § 1344(e)(1). We agree with the district court’s reasoning as to these issues. The district court’s 115 page manuscript opinion ably sets forth the Appellants’ and Appellees’ extensive arguments, analyzes in detail the controlling law, evaluates all relevant authorities, carefully considers the uniqueness of this area of Florida, delicately balances the interests of all the competing parties and agonizes over the close nature of the questions presented and the difficulty of the case. Recognizing the accuracy and thoroughness of the analysis performed by the district court and joining in its deep concern over the questions involved, we agree with the district court’s reasoning and affirm the ruling for the reasons set forth in this opinion and the opinion published at 464 F.Supp.2d. 1171 (M.D.Fla.2006). The Corps’ authority to issue general permits derives from Section 404(e) of the Act, which states in relevant part: [The Corps] may ... issue general permits on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if [the Corps] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. 33 U.S.C. § 1344(e)(1). The parties dispute both whether the activities authorized by the Permit are similar in nature and whether the Permit minimizes the separate and cumulative impacts on the environment. While a very close ease, the Permit’s special conditions effectively cabin the scope of permitted activities and mitigate any environmental impacts such that the Permit is a proper exercise of the Corps’ Section 404(e) general permitting authority. The Permit is replete with special conditions designed specifically to narrow the category of activities authorized by the permit so they are similar in nature, and minimize the environmental effects of development by preserving much of the area and mitigating adverse effects imposed by the proposed activities. For example, the Permit provides for the preservation and conservation management of 10 conservation units, comprising more than 13,200 acres. Development in these areas is prohibited. The areas may be used only for wetland or habitat mitigation, limited passive recreational purposes, and other prescribed activities. Further, St. Joe Company, which owns most of the land in the permit region, has volunteered to grant perpetual conservation easements to the Florida Department of Environmental Protection on portions of the conservation units. Additional land will be permanently conserved because the Permit requires that 80% of the wetlands within every sub-basin be preserved and placed into perpetual conservation, leaving 20% available for development (except for those few sub-basins that are wholly contained within a mitigation bank, in which case no wetlands are available for development). The area within a sub-basin used to calculate these percentages does not include any designated conservation unit areas. Thus, for the sub-basins containing designated conservation unit areas that contain wetlands, which is most of the sub-basins in the Permit Area, more than 80% of the wetlands will be preserved. Therefore, more than generally authorizing dredge and fill activities in the Permit Area, the Permit imposes numerous restrictive conditions and oversight procedures designed to conserve large portions of the Permit area and minimize the impact of the dredging and filling activities. Because the Corps selected a general permit to deal with this area of the Florida panhandle, it need not follow Section 404(a)’s individual permitting process for individual projects authorized under the Permit. Instead, the Permit provides for an internal review scheme for each proposed project. Special Condition 20 establishes the individual project approval procedures, which include a pre-application meeting to which representatives of the Corps, Florida Department of Environmental Protection, Environmental Protection Agency, U.S. Fish and Wildlife Services, National Marine Fisheries Services, and Northwest Florida Management District are invited to evaluate whether any individual proposed project meets the requirements and criteria of the Permit and to discuss the proposed project design. At the pre-application meeting, the project sponsor is required to produce a description of the scope of the proposed project and its specific location and boundaries; an identification, delineation and mapping of all wetlands in the project area; a description of proposed wetlands impacts and compliance with the Permit; engineer certifications of storm-water treatment plans; documentation of coordination with the State Historic Preservation Officer and compliance with any archeological or historical surveys required by that agency; documentation of site evaluation for the presence of flat-woods salamanders, bald eagles, and tele-phus spurge (which the Corps’ Biological Assessment has identified as threatened or endangered species in the Permit area); and, where appropriate, evidence of compliance with guidelines for the preservation of these species. After the pre-application meeting, a landowner can formally submit an application, which includes a final form of exhibits and information considered at the pre-ap-plication meeting. If a proposed project fails to meet the terms of the Permit, it may be submitted for consideration under the Act as an individually permitted project, to be evaluated in accordance with the individual permit application process. But, if the Corps determines that a proposed project does meet the Permit’s terms, the Corps may issue a letter of authorization. These letters can be conditioned upon the satisfaction of additional special conditions deemed necessary by the Corps to minimize adverse environmental impacts. Only after receipt of an authorization letter may a landowner begin to undertake dredge and fill activities in the Permit area. Other portions of the Permit operate to minimize environmental impacts and merit mention. For example, Special Conditions 1 and 2 require that individual projects include specific stormwater treatment plans that set higher standards for storm-water discharge than Florida’s current stormwater treatment requirements for the region. For projects occurring in a designated area, Special Condition 1 adopts all the conditions of an Ecosystem Management Agreement (“EMA”) between the Corps and St. Joe. (The EMA has its own water quality certification standards and stormwater treatment measures that the Corps asserts are also more stringent than current state requirements.) The Corps explains that through the EMA, the Corps is able to place additional restrictions on developments by St. Joe. Additionally, Special Condition 9 requires that only clean fill and rock material be used for wetland fills, which the Corps explains will minimize the effect of any erosion of fill materials used in a particular project, which in turn minimizes the effect on the circulation, fluctuation, and salinity of receiving waterbodies and further ensures that suspended particulates from authorized activities will be unlikely to affect the turbidity of receiving waters or wetlands. Special Condition 7 requires 30 to 100 foot buffers between all development projects and Lake Powell, the largest coastal dune lake in the Florida panhandle. These buffers are to be preserved and maintained in an essentially natural condition without the use of fertilizers, herbicides or pesticides, which the Corps explains will serve to protect the lake’s water quality. Similarly, Special Condition 8 requires that all projects buffer high quality wetlands by low quality wetlands or uplands that must be preserved and maintained in an essentially natural condition, without the use of fertilizers, herbicides or pesticides. Special Condition 10 minimizes the impact to the wetlands and their dependent environmental resources by prohibiting wetland fill from severing important existing jurisdictional connections or from isolating jurisdictional areas. We are acutely aware of Appellants’ legitimate concerns over abuse of the general permitting process. Left unchecked, expanding the use of Section 404(e) general permits beyond their statutory scope would gut the individual permitting process and allow the Corps to circumvent the notice and public hearing requirements of Section 404(a). In response to Appellants’ legitimate concerns over the Corps’ use of a general permit of this unprecedented scope, the best argument made by the Corps is that we should grant deference to its interpretation regarding the conditions under which it may issue a general permit under Section 404(e) of the Act. The Corps has issued no regulation or formal interpretation defining the key terms at issue in this ease. Therefore, we are left only with the language of the Act and the Corps’ application of the general permitting scheme in this instance. We note that the district court wrestled with this case in a thoughtful opinion and over a lengthy period of time. The district court initially issued a preliminary injunction enjoining issuance of the Permit but, after further consideration of the facts and law, it reversed itself. Like the district court, we have carefully reviewed the record and relevant law, agonized over the facts, and concluded that this case is extremely close. The special conditions in the Permit are extensive, and we believe they reflect the Corps’ efforts to design a permit that is considerate of the Act and yet tailored to the unique problems presented by this large area of northwest Florida. The Permit both strategically manages development in the entire Permit Area and provides the Corps wide powers to control adverse impacts associated with any particular individual project. We ultimately agree with the district court’s reasoning that the Permit, largely through these special conditions, is within the scope of Section 404(e), limiting the type of activities allowed so they are “similar in nature” and mitigating any environmental impacts so they are minimal. We conclude this Permit is within Congress’ grant of authority to the Corps to issue general permits. AFFIRMED. . We agree with the district court that Section 404(e) is ambiguous and that the Corps has issued no formal regulation; thus, we follow the district court and apply the least deferential Skidmore standard of review to the Corps' actions. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Because we uphold the agency’s actions, we decline to decide whether Chevron deference would apply in this case. . There are a total of 24 special conditions in the general permit. We only highlight a few illustrating the broad powers retained by the Corps. .St. Joe Company, owner of the land on which the conversation units are located, voluntarily agreed to designate a largely contiguous area crossing all three of the main basins and several of the sub-basins in the Permit Area. This land is composed of both high and low quality wetlands (10,084 acres) as well as uplands (3,116 acres). . Although St. Joe now owns all the areas designated for conservation units, other landowners may make arrangements with St. Joe to use land designated for conservation as part of a landowner's on-site mitigation plans (just as those landowners can make arrangements with St. Joe to "buy credit at one of St. Joe's mitigation banks”). The permit requires St. Joe to convey conservation easements over land in the designated conservation units (whether that land is upland or high or low quality wetlands) at an annual rate tied to the percentage of total acreage of wetlands impacted each year by all authorized projects (regardless whether they are "St. Joe projects” or not). Using that formula, the full 13,200 acres of conservation unit land would be placed under perpetual protection by the time the Permit Area is fully developed.

Southeast Alaska Conservation Council v. United States Army Corps of Engineers

HUG, Circuit Judge. This case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act. The permit issued in this case authorizes Coeur Alaska, Inc., to discharge process wastewater containing tailings from its gold mine into a lake that is a navigable water of the United States. Coeur Alaska proposes to discharge daily 210,000 gallons of process wastewater containing 1,440 tons of tailings from its mine into Lower Slate Lake. The tailings in the discharge will raise the bottom elevation of the lake by 50 feet. A 90-foot high, 500-foot long dam will be built to contain the discharge and the area of the lake will be increased about three-fold. The U.S. Army Corps of Engineers contends that the permit was properly granted under § 404 of the Clean Water Act, which relates to the disposal of “fill material,” and that it is not subject to the effluent restrictions of § 301 or § 306 of the Clean Water Act. The plaintiffs contend that this mine disposal discharge must comply with the effluent restrictions of § 301 and § 306, and that any permit allowing discharge must be issued by the Environmental Protection Agency. The district court held that the issuance of the permit was proper. We reverse and remand with instructions to vacate the permit. I. Coeur Alaska intends to open the Kens-ington Gold Mine on the site of a prior mine in southeast Alaska that operated from 1897 to 1928. Although the mining operation will include several above-ground facilities, the mine itself will be entirely subterranean. To process the gold ore retrieved from the mine, Coeur Alaska will construct a froth-flotation mill facility. In the froth-flotation process, ore-bearing rock from the mine will be transported to a mill and moved through a series of mechanical crushing and grinding procedures. After the rock is finely ground, it will be fed into a tank where water and chemicals referred to as conditioners, frothers, surfactants, and scale inhibitors will be added. Air is then pumped into the tank, producing bubbles that attach to the gold deposits. The bubbles rise, bringing the gold with them and forming a froth that is skimmed off the top. After the gold has bubbled up to the surface and the froth is removed, the tail-ings — residual ground rock — remain as a waste product. Of the 2,000 tons of ore that the Kensington mine will process each day, only about 100 tons (5 percent) contain economically viable gold minerals. About 40 percent of the tailings will be used as backfill in the mine. The remaining volume is, according to Coeur Alaska, too large to transport off site and presents a waste disposal problem. This dispute arises from Coeur Alaska’s current plan for addressing that disposal problem. Coeur Alaska’s earlier plan of operations for the Kensington Gold Mine called for the construction of a “dry tailings facility,” in which the mine would dispose of waste from its froth-flotation mill on dry “uplands.” This disposal process involved the construction of berm and drainage structures around the designated disposal area, dewatering the process wastewater, and placement of the tailings within an enclosure. After the closure of the mine in about 10 to 15 years, Coeur Alaska would have been required to cover the disposal area with native material to support re-vegetation. The U.S. Forest Service (“Forest Service”) approved the plan of operations for the dry tailings facility, and the U.S. Army Corps of Engineers (“Corps”) and the Environmental Protection Agency (“EPA”) issued permits to the company authorizing the construction of this facility in 1997. The price of gold subsequently dropped to $400 an ounce, however, prompting Coeur Alaska to investigate less expensive ways to develop the mine project. In 2004, Coeur Alaska proposed a new plan of operations with significant amendments. The most important change for our purposes was that, instead of the dry tailings facility, Coeur Alaska proposed to discharge its process wastewater containing the tailings directly into nearby Lower Slate Lake. Lower Slate Lake, a 23-acre subalpine lake in the Tongass National Forest, is one of several small lakes in the vicinity of the mine. The lake is a fish and wildlife habitat and supports about 1,000 Dolly Varden Char (a freshwater fish) and other native fish and aquatic life. The lake is also a tributary of Slate Creek and drains into Berners Bay. Coeur Alaska’s current disposal plan involves piping approximately 210,000 gallons of process wastewater, including 1,440 tons of tailings, each day to the bottom of Lower Slate Lake in the form of a slurry. This slurry would consist of about 45 percent water and 55 percent tailings. A polymer and flocculent would be added to the slurry to enhance settling of the tail-ings. Over the 10-to 15-year life of the mine, approximately 4.5 million tons of tailings would be deposited into the lake. The discharge ultimately would raise the bottom of the lake 50 feet, to its current high water mark, and nearly triple its surface area. Coeur Alaska and the Corps admit that the discharge and settling of the tailings into the lake would kill all the fish and nearly all the aquatic life. The effluent would have a pH factor of over 10, which is considerably higher than the lake’s current pH factor, and would contain concentrations of several potentially hazardous materials, including aluminum, copper, lead, and mercury. The toxicity of the discharge may have lasting effects on the lake and may negatively affect its ability to sustain aquatic life in the future. The Corps intends that aquatic life would be reintroduced into the lake, but the extent to which aquatic life could be restored eventually is unclear. To prepare the lake for use as a waste-water disposal facility and the consequent expansion of the lake’s surface, Coeur Alaska would construct a 90-foot high, 500-foot long dam at the lake’s outfall point. Coeur Alaska’s long-term plan to use the lake as a disposal facility also includes the construction of a diversion ditch. Constructing the ditch would require cutting trees on 7.6 acres of forested land, building a 30-foot wide road, excavating and digging a 3,000-foot ditch, and filling in 4.3 acres of nearby wetlands with 28,800 cubic yards of fill material. In addition, during the 10-to 15-year period of the lake’s use as a disposal facility, Slate Creek would be diverted around the lake through a pipeline. The Forest Service approved Coeur Alaska’s current plan of operations at the Kensington Gold Mine, including the revised disposal plan, in a Record of Decision (“ROD”) on December 9, 2004. Because the proposed discharge would have the effect of raising the bottom elevation of Lower Slate Lake, the Corps reasoned that the permit program under § 404 of the Clean Water Act, rather than § 402, applies to Coeur Alaska’s planned discharges. Accordingly, the Corps issued a permit for the discharge into Lower Slate Lake on June 17, 2005. Under the permit, when operations at the mine eventually cease, the Corps would require Coeur Alaska to mitigate the environmental impacts at the lake by installing a cap of native material over the tailings at the bottom of the lake. The Corps would also require Coeur Alaska to reintroduce native fish species into the lake and monitor the health of the ecosystem. II. Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation (collectively “SEACC”) filed this lawsuit challenging the Corps’ permit and the Forest Service’s ROD approving the general plan on the grounds that they violate § 301(a), § 301(e), and § 306(e) of the Clean Water Act. The crux of SEACC’s argument is that the Corps violated the Clean Water Act by issuing a permit for the discharge of process waste-water from a froth-flotation mill into a body of water protected by the Clean Water Act. After the complaint was filed, the Corps decided to suspend the permit and reconsidered its decision to issue the permit. For that purpose, the Corps moved for voluntary remand of the case before briefing on the merits began, which the district court granted on November 14, 2005. The Corps reinstated the original permit, without changes, on March 29, 2006. At the same time, the Corps issued a revised ROD in which it explained its rationale. SEACC then filed an amended complaint, in which it reiterated its allegations and reasserted its causes of action. Coeur Alaska, Goldbelt, Inc., and the State of Alaska intervened as defendants. The parties filed cross-motions for summary judgment. The district court granted summary judgment to the defendants on August 4, 2006. In its opinion, the district court focused on whether the Corps misapplied § 404 of the Clean Water Act. The district court noted that SEACC challenged the granting of the permit on the grounds that it did not comply with § 301(e) and § 306(e). It held that if the permit was issued under § 404 for the disposal of “fill material,” then § 301(e) and § 306(e) were inapplicable. ' SEACC appealed on August 7, 2006, three days after the district court’s decision, and this court, on SEACC’s motion, granted an injunction pending appeal on August 24, 2006, which prohibited Coeur Alaska, the Corps, and the Forest Service from proceeding with further construction activities related to preparing the lake for use as a waste disposal site. See SEACC v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1099 (9th Cir.2006). Since granting the injunction, we have addressed two emergency motions related to stabilizing a temporary coffer dam that was hastily constructed by Coeur Alaska prior to the injunction. Id.; SEACC v. U.S. Army Corps of Eng’rs, 479 F.3d 1148, 1151-52 (9th Cir .2007). III. We review the district court’s grant of summary judgment de novo and must determine whether the district court correctly applied the relevant substantive law. Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir.2003); United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). “De novo review of a district court judgment concerning a decision of an administrative agency means the court views the case from the same position as the district court.” Turtle Island, 340 F.3d at 973 (citing Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir.1993)). Judicial review of administrative decisions under the Clean Water Act is governed by § 706 of the Administrative Procedure Act (“APA”). Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004). 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 law.” 5 U.S.C. § 706(2)(A); Turtle Island, 340 F.3d at 973. IV. Two different regulations contain plain language interpreting the Clean Water Act that would appear to govern Coeur Alaska’s proposed plan of operations at the Kensington Gold Mine, but they result in different interpretations of the Act. The discharge of wastewater containing'tailings from Coeur Alaska’s froth-flotation mill operation facially meets the Corps’ current regulatory definition of “fill material” because it would have the effect of raising the bottom elevation of the lake. See 33 C.F.R. § 323.2(e). Accordingly, under this interpretation, the discharge would be subject to the permit process governed by § 404 of the Clean Water Act. However, EPA previously promulgated a performance standard, pursuant to § 301 and § 306 of the Clean Water Act, that prohibits discharges from froth-flotation mills into waters of the United States. See 40 C.F.R. § 440.104(b)(1). Both of the regulations appear to apply in this case, yet they are at odds. As explained below, the plain language of the Clean Water Act resolves this conflict and requires that the performance standard controls. The statute is unambiguous on this point, and the performance standard applies to discharges from the froth-flotation mill at Coeur Alaska’s Kens-ington Gold Mine into Lower Slate Lake. Furthermore, the federal agencies’ clear statements at the time they adopted the current regulatory definition of the term “fill material” demonstrate that they did not intend for waste products subject to effluent limitations and performance standards to be regulated as “fill material.” For these reasons the Corps should not have issued a permit to Coeur Alaska under § 404. The district court’s grant of summary judgment in favor of the Corps is reversed, and we remand for summary judgment to be entered in favor of the plaintiffs with directions to vacate the permit granted by the Corps. A. We begin, as we must, with the text of the Clean Water Act itself to determine “whether Congress has directly spoken to the precise question at issue. 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, 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). “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. 1. Congress passed the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity” of the waters of the United States. 33 U.S.C. § 1251(a). To achieve this objective, the Clean Water Act sought to eliminate completely the discharge of all pollutants into the nation’s navigable waters by 1985. 33 U.S.C. § 1251(a)(1). It also sought to make those waters suitable for fish, shellfish, wildlife, and recreation. 33 U.S.C. § 1251(a)(2). One of Congress’s principal concerns in passing the Clean Water Act was the use of water for waste disposal, which Congress deemed “unacceptable.” See S.Rep. No. 92-414, at 7 (1971), reprinted in 1971 U.S.C.C.A.N. 3668, 3674 (“The use of any river, lake, stream or ocean as a waste treatment system is unacceptable.”), quoted in Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1043 (9th Cir.1978). The “cornerstone” and “fundamental premise” of the Clean Water Act is § 301, which prohibits all discharges of any pollutant except in compliance with specified provisions of the statute. Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.Bd 1007, 1009 (9th Cir.2002); Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 109 (D.C.Cir.1987). Specifically, § 301(a) provides that “the discharge of any pollutant by any person shall be unlawful” except when the discharge complies with the requirements of, inter alia, § 301, § 306, § 402, and § 404. 33 U.S.C. § 1311(a). In furtherance of this mandate, § 301(b) requires EPA to adopt increasingly stringent, technology-based effluent limitations for point sources. Once an effluent limitation is promulgated, § 301(e) requires that it “shall be applied to all point sources of discharge of pollutants in accordance with the provisions of’ the statute. 33 U.S.C. § 1311(e) (emphasis added). Similarly, § 306 requires EPA to implement even more stringent “standards of performance” for new sources such as the new Coeur Alaska mine project. 33 U.S.C. § 1316(b). To carry out § 306’s directive, EPA must promulgate a list of categories of sources and, for new sources within each category, establish a national standard of performance (also referred to as a New Source Performance Standard). Id. A standard of performance is defined as “a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which [EPA] determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.” 33 U.S.C. § 1316(a)(1) (emphasis added). As with the effluent reductions promulgated under § 301, § 306 states that, once a standard of performance takes effect, “it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U.S.C. § 1316(e). Congress thus “intended these regulations to be absolute prohibitions.” E.I. du Pont de Nemours & Co. v. Train (“Du Pont”), 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977) (citing S.Rep. No. 92-414, at 58 (1971)). The legislative history of § 306 indicates that Congress made a “deliberate choice not to allow variances for new sources.” Riverkeeper, Inc. v. EPA, 358 F.3d 174, 192 (2d Cir. 2004). As such, no exceptions to a standard of performance are allowed. See id.; Du Pont, 430 U.S. at 138, 97 S.Ct. 965. To ensure compliance with effluent limitations and performance standards established pursuant to § 301 and § 306, Congress created the National Pollutant Discharge Elimination System (“NPDES”) permit program under § 402 of the Act. Through the NPDES program, EPA may permit a discharge, but only if it complies with § 301 and § 306. Additionally, NPDES permits are supposed to limit the release of pollutants into waterways as much as possible by imposing numerical discharge restrictions. Rybachek v. EPA, 904 F.2d 1276, 1283 (9th Cir.1990). For this reason, the NPDES permit program is considered “central to the enforcement” of the Clean Water Act. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977). In addition to the NPDES permit program, the Clean Water Act established a secondary permit program for the discharge of “dredged or fill material” under § 404. According to § 404, the Corps “may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). We conclude that the permit scheme under § 404 is a limited permit program that applies only to dredged or fill material, not to the discharge of pollutants from industrial or municipal sources. 2. The language of the Clean Water Act is clear on the issue at the center of this dispute. First, § 301(a) prohibits any discharge that does not comply with several enumerated sections, including both § 301 and § 306, as well as § 402 and § 404. 33 U.S.C. § 1311(a). The use of “and” as a connector, instead of “or,” indicates that Congress intended for effluent limitations and standards of performance to apply to all applicable discharges, even those that facially qualify for permitting under § 404. Second, § 301(e) applies effluent limitations established by EPA to all discharges. 33 U.S.C. § 1311(e). Third, § 306(e) prohibits any discharge that does not comply with performance standards promulgated by EPA. 33 U.S.C. § 1316(e). In clear and precise terms, § 301 and § 306 require that discharges comply with applicable effluent limitations and standards of performance. Neither § 301 nor § 306 contains an exception for discharges that would otherwise qualify for regulation under § 404. Rather, § 301 and § 306 are “absolute prohibitions” with no exceptions. Du Pont, 430 U.S. at 138, 97 S.Ct. 965. Nevertheless, the defendants argue that § 301 and § 306 do not apply to § 404 permits because § 402 explicitly requires compliance with those sections whereas § 404 does not. The defendants then reason, by way of negative inference, that § 404 contains an implied exception to the requirements of § 301 and § 306 whenever a proposed discharge would meet the agencies’ regulatory definition of “fill material.” We disagree. Negative inferences and implied exceptions are generally disfavored. As the Supreme Court stated in United States v. Rutherford, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979): “Exceptions to clearly delineated statutes will be implied only where essential to prevent ‘absurd results’ or consequences obviously at variance with the policy of the enactment as a whole.” Id. at 552, 99 S.Ct. 2470 (citing Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 85 L.Ed. 303 (1941)). That is because courts have “generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” of particular language. S.D. Warren Co. v. Me. Bd. of Envtl. Prat, - U.S.-, 126 S.Ct. 1843, 1852, 164 L.Ed.2d 625 (2006) (quoting Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997)). The defendants have produced no compelling reason to believe that Congress intended an exception within § 404 that it did not explicitly create. If the defendants’ interpretation were correct, Congress would have written § 301 and § 306 within § 402, not as separate sections. Moreover, the implied exception urged by the defendants, if adopted, would turn § 404 into an exception that swallows the rule created by § 301, § 306, and § 402 by allowing the Corps to use a negative inference from an exception clause within § 402. Thus, § 404’s silence regarding the explicit and detailed requirements in § 301 and § 306 cannot create an exception to those sections’ strongly-worded blanket prohibitions. The defendants’ interpretation would render § 301(e) and § 306(e) effectively meaningless. Courts strive to avoid interpreting a statute “in a manner that renders other provisions of the same statute inconsistent, meaningless, or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991), quoted in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1024 (9th Cir.2005); see also Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (<cWe must read the statutes to give effect to each if we can do so while preserving their sense and purpose.”). If the defendants were correct, the words “all” in § 301(e) and “any” in § 306(e) would lose their meaning entirely. There is a much simpler explanation for the difference in language between § 402 and § 404 than the defendants’ proposed negative inference. If EPA has adopted an effluent limitation or performance standard applicable to a relevant source of pollution, § 301 and § 306 preclude the use of a § 404 permit scheme for that discharge. See 67 Fed.Reg. 31,129, 31,135 (May 9, 2002); EPA/Corps, Joint Response to Comments 12 (May 3, 2002). Accordingly, the NPDES program administered by EPA under § 402 is the only appropriate permitting mechanism for discharges subject to an effluent limitation under § 301 or a standard of performance under § 306. Consequently, there was simply no need for Congress to enumerate § 301 or § 306 within § 404 because Congress never intended for § 404 to govern discharges subject to effluent limitations or performance standards. Rather, when a discharge is subject to an effluent limitation or performance standard, that discharge must comply with the NPDES program as required by § 402. See 67 Fed. Reg. at 31,135; 47 Fed.Reg. 54,598, 54,606 (Dec. 12, 1982). This construction of the statute preserves the full meaning of all of its provisions without rendering any provision superfluous or resorting to negative inferences and implied exceptions. Additionally, although § 404 does not contain an explicit exception to effluent limitations or standards of performance, it does contain exceptions to other provisions of the Clean Water Act. Specifically, § 404(f) exempts discharges of dredged or fill material from certain activities from regulation under § 301(a), § 402, and § 404. 33 U.S.C. § 1344(f)(1). Discharges related to agricultural activities and road construction, among others, are exempted under § 404(f)(1). Mining is not listed as an exempt activity. “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.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980). The defendants have produced no reason to believe that Congress intended additional exemptions to be created later. Therefore, the lack of any explicit exception to § 301 and § 306 within § 404, and the lack of an exception for process wastewater from mines, is strong evidence that Congress did not intend one. Id. Even stronger evidence is Congress’s insistence in § 404(f) that even the discharges from the enumerated activities continue to be subject to effluent standards. 33 U.S.C. § 1344(f). Thus, the plain language of the Clean Water Act directly resolves the conflict between the regulatory definition of “fill material” and EPA’s performance standard for froth-flotation mill operations. Pursuant to § 301 and § 306, EPA’s performance standard for froth-flotation mills governs this situation. The language of § 404 does not lead to a contrary conclusion. B. Although the plain language of the Clean Water Act resolves the apparent regulatory conflict at the heart of this case, the regulatory history further demonstrates that neither the Corps nor EPA intended for the current regulatory definition of “fill material” to replace the performance standard for froth-flotation mills. Courts consider contemporaneous explanations of regulations, such as those published in the Federal Register through notice- and-comment rulemaking, in order to determine an agency’s intent. See Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 714-16, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985); Friends of Yosemite Valley v. Norton, 348 F.3d 789, 797 (9th Cir.2003); League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1189-90 (9th Cir.2002); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 446-47 (4th Cir.2003). And courts will not defer to an agency’s interpretation of a regulation that contradicts the agency’s intent at the time it promulgated the regulation. Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 916, 163 L.Ed.2d 748 (2006); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 627-28 (9th Cir. 2005); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (an agency’s interpretation of a regulation is not entitled to deference where it is “plainly erroneous” or “inconsistent with the regulation”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). When the agencies promulgated the current definition in 2002, they foresaw and specifically addressed the potential conflict between the effects-based definition of “fill material” and performance standards already in place. To that end, the agencies explicitly stated that wastes subject to performance standards and effluent limitations would not be considered “All material.” The Corps’ application of the fill rule in this case, therefore, contradicts its interpretation at the time the regulation was promulgated. 1. Following its statutory obligation under § 301 and § 306, in 1982 EPA promulgated effluent limitations and standards of performance for sources within the category of ore mining. See 47 Fed.Reg. 25,682 (June 14, 1982) (proposed); 47 Fed.Reg. 54,598 (Dec. 3, 1982) (final). Within this category, EPA established a subcategory that applied to gold mining. See 40 C.F.R. §§ 440.100-440.104. For gold mines using the froth-flotation mill process, EPA promulgated a zero-discharge standard: Except as provided in paragraph (b)[2] of this section, there shall be no discharge of process waste-water to navigable waters from mills that use the froth-flotation process alone, or in conjunction with other processes, for the beneficiation of copper, lead, zinc, gold, silver, or molybdenum ores or any combination of these ores. 40 C.F.R. § 440.104(b)(1) (emphasis added); see also 47 Fed.Reg. at 25,697 (proposing zero discharge). EPA found that the zero-discharge standard was practicable because the majority of facilities existing at the time already achieved zero discharge through recycling and evaporation processes. 47 Fed.Reg. at 54,602. EPA promulgated this standard knowing that process wastewater discharges from froth-flotation mills contain a large amount of suspended solids that could otherwise qualify for regulation under § 404 pursuant to its effects-based definition of “fill material.” See 47 Fed.Reg. at 25,685 (“Mill process wastewater is characterized by very high suspended solids levels (often in the percent range rather than milligrams per liter).... ”). In determining that a strict zero-discharge limit was appropriate, EPA determined that the best available control technology included the complete recycling of process wastewater. See 47 Fed.Reg. at 54,602. Given that the regulation facially applies to any discharge from a froth-flotation mill, and that it provides some limited exceptions that do not include “fill material,” EPA intended for the prohibition to apply to discharges that would otherwise qualify as fill material under § 404. See 67 Fed.Reg. at 31,135. This conclusion is also supported by the fact that EPA promulgated the regulation notwithstanding its definition of “fill material,” which was identical to the definition used by both agencies today. 2. The history of the current fill rule also demonstrates that both agencies intended for effluent limitations and performance standards to apply even to discharges that facially meet the definition of the term “fill material.” The Clean Water Act does not define the term “fill material.” Instead, Congress implicitly left that term to the Corps and EPA to define. See Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1166 (9th Cir.1998). As with most regulatory definitions, the agencies’ definitions of “fill material” have evolved over time. In fact, prior to the current regulatory definition of “fill material,” the Corps and EPA defined “fill material” differently. The Corps initially used an effects-based test, which defined “fill material” as “any pollutant used to create fill in the traditional sense of replacing an aquatic area with dry land or of changing the bottom elevation of a water body for any purpose.” 40 Fed.Reg. 31,320, 31,325 (July 25, 1975). EPA later adopted the identical definition. 40 Fed.Reg. 41,292, 41,298 (Sept. 5, 1975). Two years later, the Corps revised its definition and adopted a purpose-based test, which excluded from its definition “any pollutant discharged into the water primarily to dispose of waste.” 42 Fed.Reg. 37,122, 37,145 (July 19, 1977). In adopting its purpose-based definition, the Corps explained that there were many waste materials “which technically fit within our definition of ‘fill material’ but which were intended to be regulated under the NPDES program.” Id. at 37,130. EPA, in 1980, chose to keep its effects-based test. See 45 Fed.Reg. 33,290, 33,421 (May 19,1980). The agencies’ differing definitions of “fill material” created a potential regulatory overlap. See, e.g., Res. Invs., 151 F.3d at 1165-66, 1168-69 (acknowledging overlap); Kentuckians, 317 F.3d at 432 (“the Corps acknowledged that the differing approaches in defining ‘fill material’ employed by EPA and the Corps in their regulations had created some uncertainty about their interpretation of the Clean Water Act”). Many industrial wastes contain a high proportion of suspended solids and, therefore, have the effect of changing the bottom elevation of a body of water. As such, those wastes could have been considered fill material under EPA’s definition. However, EPA continued to regulate many of those industrial wastes under § 402, and also continued to promulgate new effluent limitations and standards of performance for industrial pollutants with high concentrations of solids, regardless of their potential to raise the bottom elevation of a body of water. See, e.g., 46 Fed.Reg. 8,260, 8,292 (Jan. 26, 1981) (regulating discharges of suspended solids from log-washing processes). Indeed, the new source performance standard for froth-flotation mills was adopted in 1982, despite the fact that waste from this process would have the effect of raising bottom elevation and, therefore, could otherwise constitute fill material under EPA’s effects-based test. See 47 Fed.Reg. at 25,685. Thus, notwithstanding the potential regulatory overlap created by the agencies’ differing definitions, EPA regulated many industrial pollutants under § 402. The agencies formally adopted this practice in a Memorandum of Agreement on Solid Waste (“MOA”) in 1986. 51 Fed.Reg. 8,871 (Mar. 14, 1986). After adoption of the MOA in 1986, the Corps continually declined to exercise jurisdiction over mine tailings. In 2002, the agencies promulgated their joint regulation defining the terms “fill material” and “discharge of fill material.” 67 Fed.Reg. at 31,130. The current regulatory definition of “fill material” provides: (1) Except as specified in paragraph (e)(3) of this section, the term “fill material” means material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of a water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States. (2) Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining!] or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States. (3) The term fill material does not include trash or garbage. 33 C.F.R. § 323.2(e) (Corps’ regulation); 40 C.F.R. § 232.2 (EPA’s regulation) (emphasis added). The agencies also defined “discharge of fill material” as follows: The term “discharge of fill material” means the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: ... placement of overburden, slurry, or tailings or similar mining-related materials .... 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2. At the same time, however, the agencies made clear that they did not intend to change their long-standing practice, according to which EPA regulates discharges of pollutants for which it has established effluent limitations or standards of performance under the NPDES program. [W]e emphasize that today’s rule generally is intended to maintain our existing approach to regulating pollutants under either section 402 or 404 of the CWA. Effluent limitation guidelines and new source performance standards (“effluent guidelines”) promulgated under section 304[] and 306 of the CWA establish limitations and standards for specified wastestreams from industrial categories, and those limitations and standards are incorporated into permits issued under section 402 of the Act. EPA has never sought to regulate fill material under effluent guidelines. Rather, effluent guidelines restrict discharges of pollutants from identified wastestreams based upon the pollutant reduction capabilities of available treatment technologies. Recognizing that some discharges (such as suspended or settleable solids) can have the associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants, we do not consider such pollutants to be “fill material,” and nothing in today’s rule changes that view. Nor does today’s rule change any determination we have made regarding discharges that are subject to an effluent limitation guideline and standards, which will continue to be regulated under section kQ% of the CWA. Similarly, this rule does not alter the manner in which water quality standards currently apply under the section 402 or the section 404 programs. 67 Fed.Reg. at 31,135 (emphasis added). Additionally, in their Joint Response to Comments to the proposed rule, the agencies restated this position: Under today’s rule, we will continue, consistent with our long-standing practice, to rely on the existence of effluent limitation guidelines or standards or a NPDES permit to inform the determination of how a particular discharge is regulated under the Act. If a specific discharge is regulated under Section 402, it would not also be regulated under Section 404, and vice versa. EPA/Corps, Joint Response to Comments 30. In the same document, the agencies clarified that the new rule would not expand the jurisdiction of the Corps or permit previously prohibited discharges: “the suggestion that this rulemaking now provides a legal basis for previously illegal activities is not the case — no discharges that were previously prohibited are now authorized as a result of this rulemaking.” Id. Thus, the agencies clearly intended to exclude discharges subject to effluent limitations or performance standards from the new definition of “fill material.” In fact, when the Corps and EPA first proposed the revised, coordinated definition in 2000, they included an explicit exemption from the definition of “fill material” for discharges subject to effluent limitations or standards of performance. See 65 Fed.Reg. 21,292, 21,299 (Apr. 20, 2000). The stated purpose of the exemption was to maintain the agencies’ “current practice,” which was “consistent with paragraph B.5 of the 1986 Solid Waste MOA.” Id. at 21,297. Although the agencies removed the explicit exemption from the final rule, they did so only because commenters expressed concern that the exception was vague and would create uncertainty regarding whether the reference to effluent guidelines applied prospectively or only to those guidelines already in existence at the time. See 67 Fed.Reg. at 31,135. As such, the agencies still intended to regulate discharges subject to effluent limitations and standards of performance under § 402. The defendants attempt to undermine the clear intent of the agencies by focusing on a single sentence of the preamble in which the agencies stated “mining-related material that has the effect of fill when discharged will be regulated as ‘fill material.’ ” Id. The district court also relied on that one sentence. However, the defendants and the district court give far more weight to that singular statement than it deserves. It is difficult to understand why the agencies would painstakingly explain in the preamble that the new definition would not change their treatment of discharges subject to effluent limitations and standards of performance, only to completely contradict themselves two paragraphs later. The agencies themselves cleared up any potential confusion in their Joint Response to Comments: Today’s final rule clarifies that any material that has the effect of fill is regulated under section 404 and further that the placement of “overburden, slurry, or tailings or similar mining-related materials” is considered a discharge of fill material. Nevertheless, if EPA has previously determined that certain materials are subject to an [effluent limitation guideline] under specific circumstances, then that determination remains valid. EPA/Corps, Joint Response to Comments 12. Thus, the current fill rule only applies to those tailings and other mining-related materials that are not subject to effluent limitations or standards of performance. The agencies could not have been more clear in articulating that this would be their preferred approach. 3. In fact, the agencies followed that approach with Coeur Alaska for quite some time. The Corps consistently informed Coeur Alaska that discharges from its froth-flotation mill would not be regulated as fill material under § 404. At least, the agencies took that approach up until the time that the Corps granted the permit that led to this dispute. Prior to the promulgation of the current fill rule in 2002, the Corps relied on the 1986 MOA in informing Coeur Alaska that it lacked jurisdiction and expertise to permit discharges of tailings from the Kensington mine as “fill material.” For example, in a 1998 ROD, the Corps made clear to Coeur Alaska that it “does not regulate the placement of tailings.” U.S. Army Corps of Eng’rs, ROD 13 (Jan. 18, 1998). And as late as 2005, EPA informed Coeur Alaska that “[bjeeause this project would be a new source, the New Source Performance Standards (NSPS) for gold mines and mills are applicable to the project.” EPA, ROD for § 402 NPDES Permit 3 (June 28, 2005) (citing 40 C.F.R. § 440.104). Therefore, in addition to the regulatory history, the agencies have an established record of refusing to regulate tailings discharged from Coeur Alaska’s planned froth-flotation mill at the Kensington mine as fill material under § 404. C. The agencies’ unequivocal statements regarding their intent not to override effluent limitations and standards of performance when they promulgated the current fill rule are dispositive and compel the conclusion that the Corps overstepped its authority in issuing a permit to Coeur Alaska under § 404. If the agencies actually did intend to repeal or create an exception to the performance standard for froth-flotation mills when they promulgated the current fill rule, they did not acknowledge or provide a satisfactory explanation for the change in course. When an agency decides to change course by rescinding or changing a rule, the agency “is obligated to supply a reasoned analysis for the change.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). If an agency fails to comply with that obligation, the new rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and is invalid under § 706(2)(A) of the APA. Id. at 41,103 S.Ct. 2856 (citing 5 U.S.C. § 706(2)(A)); see also Bushr-Quayle '92 Primary Comm., Inc. v. Fed. Election Comm’n, 104 F.3d 448, 453 (D.C.Cir.1997). Not only did the Corps and EPA not acknowledge a change in course when they promulgated the fill rule, they actually stated the opposite intent. That is, the agencies made clear that effluent limitations and standards of performance would continue to apply. We could not have interpreted the fill rule as creating an exception to the performance standard for froth-flotation mills without the agencies complying with the APA by explaining their intent in the Federal Register and offering an opportunity for notice and comment. See Motor Vehicle Mfrs., 463 U.S. at 42, 103 S.Ct. 2856. D. Finally, the performance standard governs because it is more specific. It is a basic principle of regulatory interpretation that a regulation dealing with a “narrow, precise, and specific subject is not submerged” by a later enacted regulation “covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976), cited in Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1013 (9th Cir.2000). Unlike the fill rule, which pertains to fill material generally, the performance standard covers froth-flotation mills precisely. See 40 C.F.R. § 440.104. Consequently, the agencies’ later promulgation of the more general fill rule cannot supersede the narrow, precise, and specific performance standard for froth-flotation mills. E. The Corps also issued a permit to Gold-belt, Inc., for construction of a marine terminal facility at Cascade Point and issued a ROD approving Goldbelt’s plan of operations. See U.S. Army Corps of Eng’rs, Permit to Goldbelt, Inc. (July 15, 2005); U.S. Army Corps of Eng’rs, Revised ROD 4 (Mar. 29, 2006). Goldbelt’s permit and ROD are predicated on a mine design of which a critical component is Coeur Alaska’s discharge of process waste-water into Lower Slate Lake. But for that mine design, the Cascade Point facility would be unnecessary. In fact, the Corps itself stated that “without Kensington mine, the Cascade Point facility would not be constructed in the foreseeable future.” U.S. Army Corps of Eng’rs, Revised ROD 4. For that reason, the Corps considered the terminal a “component” of the Kens-ington project and analyzed the terminal proposal in the same Final Supplemental Environmental Impact Statement and Revised ROD as the Kensington project. Id. Indeed, Goldbelt must have had a “significantly protectable interest” relating to the subject of this case in order to intervene as a defendant, which it chose to do. United States v. City of L.A., 288 F.3d 391, 398 (9th Cir.2002); Fed.R.Civ.P. 24(a)(2). Importantly, in its motion to intervene, the company admitted that “Goldbelt’s Cascade Point marine terminal is an integral part of the approved Plan of Operations, and may be constructed and used solely to service the Kensington Mine as contemplated in that Plan of Operations.” Gold-belt further admitted that “[a]ny ruling by this Court that delays or disrupts construction of the mine will leave Goldbelt with a ‘permitted’ facility that either it cannot build or cannot be operated once built because the condition precedent of Goldbelt’s permits is construction and operation of the Kensington Mine as contemplated in the challenged Plan of Operations.” Consequently, Goldbelt’s permit and ROD are critically premised on Coeur Alaska’s § 404 permit. Because that permit is invalid, the Corps’ permit and ROD for the Cascade Point facility should be vacated. F. Under the APA, the normal remedy for an unlawful agency action is to “set aside” the action. 5 U.S.C. § 706(2). In other words, a court should “vacate the agency’s action and remand to the agency to act in compliance with its statutory obligations.” Defenders of Wildlife v. EPA, 420 F.3d 946, 978 (9th Cir.2005), cert. granted, - U.S.-, 127 S.Ct. 853, 166 L.Ed.2d 681 (2007); see also Am. Biosci, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C.Cir.2001). For the reasons discussed above, the Corps’ permit for the discharge of process wastewater from the froth-flotation mill at the Kensington Gold Mine into Lower Slate Lake violates § 301 and § 306 of the Clean Water Act. The Corps’ permit for construction of a marine terminal at Cascade Point critically depends on the unlawful permit to Coeur Alaska. Consequently, we remand to the district court to vacate both permits, as well as the RODs on which they are based. V. In conclusion, we reverse the district court, remand to the district court to vacate the permits issued to Coeur Alaska and Goldbelt, and vacate the RODs that approved Coeur Alaska’s and Goldbelt’s plans of operations. The Corps violated the Clean Water Act by issuing a permit to Coeur Alaska for discharges of slurry from the froth-flotation mill at the Kensington Gold Mine. EPA’s performance standard for froth-flotation mills, promulgated pursuant to § 301 and § 306 of the Clean Water Act, prohibits discharges from such operations into the navigable waters of the United States. No exceptions are provided by either the regulation or the statute. Even though the discharge in this case facially qualifies for the permitting scheme under § 404 of the Clean Water Act because it will change the bottom elevation of Lower Slate Lake, the discharge is nevertheless prohibited by the clearly applicable and specific performance standard. The plain language and structure of the Clean Water Act demonstrate that EPA’s performance standard governs in this case. Also, the agencies’ statements made during promulgation of the regulation defining “fill material,” as well as their statements made to Coeur Alaska during the lengthy permitting process, indicate that they intended this result. Thus, the district court erred in granting summary judgment in favor of the defendants. The case is remanded to the district court for action pursuant to this opinion. REVERSED and REMANDED. . 33 U.S.C. §§ 1251-1387. . We also vacate the permit granted to Gold-belt, Inc., to construct the Cascade Point Marine Facility in Berners Bay and the U.S. Forest Service’s Record of Decision approving the general plan because they are dependent on the validity of the permit issued by the U.S. Army Corps of Engineers to Coeur Alaska. . The price of gold has since been rising steadily and is currently over $680 an ounce, thus the original motivation for the change in waste disposal from the mine no longer exists. . The full text of § 301 states: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). . "The term 'effluent limitation’ means any restriction established by a State or the [EPA] on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, ... including schedules of compliance.” 33 U.S.C. § 1362(11). . "The term 'point source' means 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). . "The term 'new source’ means any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section.” 33 U.S.C. § 1316(a)(2). "The term ‘source’ means any building, structure, facility, or installation from which there is or may be the discharge of pollutants.” 33 U.S.C. § 1316(a)(3). . A standard of performance is one type of effluent limitation. See 33 U.S.C. § 1362(11). Therefore, § 301(e) and § 306(e) have the same practical effect in this case. . Section 301(e) provides: "Effluent limitations established pursuant to this section or section 1312 of this title shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this chapter.” 33 U.S.C. § 1311(e) (emphasis added). Section 306(e), which applies to new sources like the Coeur Alaska mine project, provides: "After the effective date of standards of performance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U.S.C. § 1316 (emphasis added). . See, e.g., Memorandum from Col. John W. Pierce, U.S. Army Corps of Eng’rs, "Agency Jurisdiction over Certain Activities Connected with Mineral Extraction, Specifically Gold Mining, in Alaska" 1-2 (Apr. 14, 1992) ("The tailings behind the dam, however, are a waste product of the mining operation and are not under our jurisdiction according to the 1986 Memorandum of Agreement...."); Letter from Glen E. Justis, U.S. Army Corps of Eng'rs 2-3 (June 18, 1991) ("The Corps has neither special expertise [n]or jurisdiction by law to evaluate the impacts of the tailings discharge.... The tailings do not meet the Corps’ definition of fill material.”). . "Overburden" is generally defined as rock or soil cleared away before mining. See EPA, Terms of Environment, http://www.epa.gov/ OCEPAterms/oterms.html (May 14, 2007). . The amici brief of 14 members of Congress argues persuasively that the adoption of these regulations by the Corps and EPA violates the purposes and plain language of the Clean Water Act by allowing waste material to be dumped into lakes, rivers, and other waters of the United States. SEACC bases its argument on a narrower ground pertaining to this particular mine. Thus, we do not reach the issue of the validity of these regulations. . In Kentuckians, the Fourth Circuit recognized the Corps' prior practice of not regulating discharges subject to effluent limitations under § 404: [W]e conclude that the Corps’ interpretation of "fill material” as used in § 404 of the Clean Water Act to mean all material that displaces water or changes the bottom elevation of a water body except for "waste” — meaning garbage, sewage, and effluent that could be regulated by ongoing effluent limitations as described in § 402— is a permissible construction of § 404. 317 F.3d at 448. The court also explained the Corps’ prior position that it was not authorized to regulate discharges subject to effluent limitations. Id. at 445. .Sections 304 and 301 are interchangeable in this instance. Section 304 directs EPA in how to determine the degree of effluent reduction attainable under § 301. Citizens Coal Council v. EPA, 447 F.3d 879, 883 (6th Cir. 2006) (en banc) (citing 33 U.S.C. § 1314). . The Fourth Circuit’s holding in Kentuckians is consistent with our conclusion. In Kentuckians, the court addressed the issue of whether the Corps had authority under § 404 to permit valley fills from mountain-top coal mining “when the valley fills serve no purpose other than to dispose of excess overburden from the mining activity.” 317 F.3d at 439. EPA had not promulgated a perform-anee standard for mountain-top coal mining, so neither § 301 nor § 306 was implicated in that case. Id. at 445. Moreover, in that case, the Corps admitted that, under the 2002 definition, “it was authorized to regulate discharges of fill, even for waste, unless the fill amounted to effluent that could be subjected to effluent limitations." Id. (emphasis added).

United States v. Hubenka

MURPHY, Circuit Judge. I. INTRODUCTION A second superceding indictment charged John Edward Hubenka with three counts of discharging pollutants into the Wind River in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). A jury found Hubenka guilty on all three counts. Hubenka appeals his convictions. He argues his activities on the Wind River lie beyond the reach of the Clean Water Act. Hubenka also contends the district court violated Rule 404(b) of the Federal Rules of Evidence when it admitted into evidence certain testimony about Hubenka’s past activities on the Wind River. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms. II. BACKGROUND The Wind River originates in Wyoming’s Wind River Range, on the east slope of the continental divide near Togwotee Pass. From there, it flows southeast through the Wind River Indian Reservation. Near Riverton, Wyoming, the Wind River is joined by the Little Wind River and the Popo Agie River. Downstream from this confluence, the river is called the Big Horn River. Water in the Big Horn River flows north, joins the Yellowstone River in Montana, and eventually flows east into the Missouri River. The Wind River flows year-round, with higher volume in the late spring and early summer, and lower volume in the fall and winter. Appellant John Hubenka works as a manager for the LeCIair Irrigation District (“LID”) and lives on a ranch near the Wind River approximately eighteen miles west of Riverton. Although the river is not a property boundary, it roughly separates Hubenka’s land on the north from the Wind River Indian Reservation to the south. LID maintains a diversion gate on the river to the northwest of Hubenka’s property. The diversion gate allows water from the river to flow into an irrigation canal which parallels the north side of the river for some distance. In the vicinity of Hubenka’s property, the Wind River is a braided stream which flows through multiple channels within a broad flood plain. Historically, the river’s main flow was contained in a “north channel” which was closer to the LID irrigation canal and further from the Indian Reservation. Over the years, Hubenka and LID have attempted to divert the flow of the river away from the north channel so that the bank of the river does not erode and threaten the irrigation canal. In 1979, LID obtained a permit from the United States Army Corps of Engineers (“Corps”) to stabilize the north bank of the river at and downstream from the diversion gate. At the same time, LID dredged the river bottom, effectively moving the main channel of the river away from the north bank. LID’s original permit did not authorize this recontouring of the river bottom, but in 1983 the Corps granted LID a permit which retroactively allowed the dredging. Hubenka signed as the permitee on behalf of LID. In 1994, under Hubenka’s supervision, LID constructed a dike in the north channel of the Wind River, slightly downstream of its diversion gate. The 1994 dike was constructed using river cobbles as well as scrap metal, cottonwood trees, car bodies, and a washing machine. Similarly, downstream from the dike on Hubenka’s property, the north bank of the river was reinforced with scrap metal and construction debris. The Corps sent LID, via Huben-ka, a notice of violation. The notice advised LID that its actions constituted unauthorized discharges and instructed LID to refrain from adding material to the dike and to remove the debris. The Corps sent a similar notice of violation directly to Hubenka. In October of 1994, Tom Johnson, a representative of the Corps, conducted a site visit to assess whether the prohibited materials had been removed. During the site visit, Johnson observed a truck dumping more material on the dike. After discussions with Hubenka and other representatives of LID, the Corps took action to require LID to remove the dike in its entirety and to require Hubenka to remove all debris except for clean concrete from the river bank on his property. After LID and Hubenka complied with the Corps’ directive, the agency worked with them to develop and issue a permit to stabilize the north bank of the river downstream from the diversion gate using more acceptable techniques and materials. The stabilization project was constructed in 1995 and successfully protected the north bank from erosion even during periods of high water. At some point in the late 1990s or early in 2000, the river’s primary course shifted from the north channel to a new “south channel.” Relative to the north channel, the south channel is closer to the Indian Reservation and further from the LID irrigation canal. The cause of the river’s change in course is unclear. Several witnesses living nearby testified that the Wind River shifted to the south channel naturally. The Corps’ Johnson, however, felt the change was not natural. Johnson, an expert in hydrology, testified that “something else happened to cause that sudden and dramatic change.” In March of 2000, Hubenka hired heavy equipment operator Curtis Neal to construct a series of dikes or berms in the north channel of the Wind River. Using a bulldozer, Neal pushed river cobble from the north channel to form an initial dike at the point where the north and south channels diverge, just downstream of the LID diversion gate. “Dike one” blocked the north channel by directing high flows along the face of the dike and into the south channel. Downstream from dike one, Hubenka had Neal construct a second dike parallel to the south channel. “Dike two” prevented water from the south channel from returning to the north channel. Further downstream, Neal constructed a third dike — “dike three” — which again blocked water from reentering the north channel. All of the dikes were below the ordinary high water mark of the Wind River. None of the dikes was authorized by a permit from the Corps. Early in 2004, Hubenka was charged with three violations of the Clean Water Act. Specifically, the government alleged that each of the three dikes constructed in 2000 constituted a knowing discharge of pollutants into the Wind River, a “ “water of the United States’ within the jurisdiction of the Clean Water Act.” Hubenka was convicted on all three counts. III. ANALYSIS A. Application of the Clean Water Act to the Wind River Hubenka argues the Corps’ authority to regulate dredge and fill activities under the Clean Water Act does not extend to his activities on the Wind River. He contends the Corps is without jurisdiction because the dikes were built in a river that is neither navigable-in-fact nor adjacent to other navigable-in-fact waters, and because the dikes have no effect on navigable waters downstream. We must decide whether the district court erred in concluding that the Clean Water Act gives the Corps authority to regulate Hubenka’s construction activities in the north channel of the Wind River. The construction and applicability of the Clean Water Act is an issue of law which this court reviews de novo. See United States v. Telluride Co., 146 F.3d 1241, 1244 (10th Cir.1998). Under the Clean Water Act, the Corps has jurisdiction over dredge and fill activities in “navigable waters.” 33 U.S.C. § 1344(a). The statute itself defines “navigable waters” as “waters of the United States.” Id. § 1362(7). As the Supreme Court has recognized, “Congress chose to define the waters covered by the Act broadly.” United, States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). At first, Corps regulations interpreted the Clean Water Act so as to apply only to navigable-in-fact waters. See id. at 123. In 1975, however, the Corps issued new regulations which redefined “waters of the United States.” Id. Under the revised regulations, the Clean Water Act applied not just to navigable-in-fact waters, but inter alia, to tributaries of navigable waters and interstate waters. Id. Substantially identical regulations remain in place today. See 33 C.F.R. § 328.3(a)(5) (“tributary rule”). Hubenka argues the Corps’ “tributary rule” inappropriately expands the agency’s jurisdiction under the Clean Water Act and exceeds the agency’s statutory authority to regulate discharges of dredged and fill material. (1) Analysis of the Tributary Rule under the Chevron Framework When a case involves an agency’s interpretation of a statute it administers, this court uses the two-step approach announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 824 (10th Cir.2000). Under this approach, when Congress has addressed the precise question at issue, we give effect to the express intent of Congress. Id. (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). “If the statute is silent or ambiguous, however, we defer to the agency’s interpretation,” so long as it is permissible. Id. (citing Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). Under the first step of the Chevron framework, this court must determine whether the Clean Water Act precisely addresses the question of whether Congress intended to include within the Act’s purview tributaries of navigable or interstate waters. As noted above, the Clean Water Act applies to “navigable waters,” which it defines as “waters of the United States.” 33 U.S.C. § 1362(7). The Supreme Court has observed that Congress’ broad definition evidenced an intent “to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Riverside, 474 U.S. at 133, 106 S.Ct. 455. Nevertheless, the statute does not reveal the extent to which nonnaviga-ble tributaries may be regulated. Accordingly, “[t]he statutory term ‘waters of the United States’ is sufficiently ambiguous to constitute an implied delegation of authority to the Corps.” United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003). Because the Clean Water Act’s definition of “navigable waters” is ambiguous, we move to the second step of the Chevron analysis. Normally, under Chevron’s second step, this court will defer to an agency’s interpretation of a statute that it administers, so long as the agency’s interpretation is permissible. See Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. Hubenka argues, however, that the Corps’ tributary rule reaches the outer limits of constitutional authority and raises serious constitutional questions. In such circumstances, Huben-ka contends, this court should not extend Chevron deference to the Corps’ regulations. See Solid Waste Agency of N. Cook County v. Army Corps of Engineers (“SWANCC”), 531 U.S. 159, 172-73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). In SWANCC, the Supreme Court reviewed the Corps’ “migratory bird rule.” Id. at 164, 121 S.Ct. 675. The migratory bird rule purported to extend the Corps’ jurisdiction under the Clean Water Act to isolated intrastate waters, so long as those waters were used as habitat by certain migratory birds. Id. at 164-65, 121 S.Ct. 675. The Court struck down the migratory bird rule, concluding the text of the Clean Water Act clearly did not contemplate such expansive federal jurisdiction. Id. at 172, 121 S.Ct. 675. It went on to note, however, that even if the statute itself had not clearly addressed the issue, the Court would not have extended Chevron deference to the migratory bird rule. Id. The Court determined the Corps’ rule “invoke[d] the outer limits of Congress’ power,” and could find no indication that Congress intended that result. Id. at 172-73, 121 S.Ct. 675. It further observed that the migratory bird rule “raise[d] significant constitutional questions.” Id. at 173, 121 S.Ct. 675. The Court read the statute “to avoid the significant constitutional and federalism questions,” and therefore declined to give Chevron deference to the Corps’ migratory bird rule. Id. at 174, 121 S.Ct. 675. In contrast to the migratory bird rule at issue in SWANCC, the Corps’ tributary rule neither invokes the outer limits of Congress’ power nor raises significant constitutional questions. “It has long been settled that Congress has extensive authority over this Nation’s waters under the Commerce Clause.” Kaiser Aetna v. United States, 444 U.S. 164, 173, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). It has the power to regulate waters to limit pollution, prevent obstructions to navigation, reduce flooding, and control watershed development. See, e.g., Riverside, 474 U.S. at 132-33, 106 S.Ct. 455; United States v. Republic Steel Corp., 362 U.S. 482, 489-90, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 404-05, 61 S.Ct. 291, 85 L.Ed. 243 (1940). Moreover, congressional authority is not limited to navigable-in-fact waters; it exists throughout watersheds and can encompass actions on nonnaviga-ble, intrastate tributaries. See, e.g., Riverside, 474 U.S. at 133, 106 S.Ct. 455; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523, 525-26, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941). Given this background, it is not surprising that courts have consistently acknowledged Congress’ authority to regulate the discharge of pollutants into nonnavigable tributaries. See, e.g., United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir.1979); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1329 (6th Cir.1974). Indeed, the Supreme Court has recognized that Congress’ power to regulate water pollution extends beyond tributaries and reaches even wetlands adjacent to navigable waters. Riverside, 474 U.S. at 134, 106 S.Ct. 455. Accordingly, we cannot say that the Corps’ tributary rule invokes the outer limits of Congress’ power under the Commerce Clause or raises serious constitutional questions. We join with the Sixth and Fourth Circuits in holding that the Corps’ tributary rule is owed deference under the second step of the Chevron framework. See United States v. Rapanos, 376 F.3d 629, 641 (6th Cir.2004), cert. granted, — U.S. -, 126 S.Ct. 414, 163 L.Ed.2d 316 (2005); Deaton, 332 F.3d at 708, 712. Proceeding under Chevron’s second step, this court will defer to the Corps’ tributary rule as a valid interpretation of the Clean Water Act so long as the rule is a permissible construction of the statute. See S. Utah Wilderness Alliance, 222 F.3d at 824 (citing Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). “[W]e will give effect to the agency’s interpretation unless it is arbitrary, capricious, or manifestly contrary to the statute. We accord the agency such deference given its special institutional competence.... ” Pharmanex v. Shalala, 221 F.3d 1151, 1154 (10th Cir.2000) (citation omitted). This court has long acknowledged the Corps’ authority to regulate the introduction of pollutants into the tributaries of navigable waters. See, e.g., Quivira Min. Co. v. E.P.A., 765 F.2d 126, 129-30 (10th Cir.1985); United States v. Earth Sciences, Inc., 599 F.2d 368, 375 (10th Cir.1979). Indeed, we have concluded that “[i]t is the intent of the Clean Water Act to cover, as much as possible, all waters of the United States instead of just some.” Quivira Min. Co., 765 F.2d at 129. In short, this court’s precedent indicates the Corps’ tributary rule is a permissible construction of the Clean Water Act. Huben-ka, however, argues that the aforementioned cases “are no longer good law” in light of the Supreme Court’s decision in SWANCC. In SWANCC, the Court was confronted with the question of whether nonnavigable, isolated, intrastate ponds were subject to the Clean Water Act under the Corps’ migratory bird rule. 531 U.S. at 162, 121 S.Ct. 675. The Court reviewed its prior decision in Riverside, where it had recognized the Corps’ authority to regulate wetlands adjacent to navigable waters. Id. at 167-68, 121 S.Ct. 675. It noted that the Corps could regulate adjacent wetlands because of the “significant nexus between the wetlands and the ‘navigable waters.’ ” Id. at 167-68, 121 S.Ct. 675. The Court further observed “that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands ‘inseparably bound up with the “waters” of the United States.’” Id. at 167, 121 S.Ct. 675 (quoting Riverside, 474 U.S. at 134, 106 S.Ct. 455). Although the ponds at issue in SWANCC served as habitat for migratory birds, they were otherwise isolated from navigable waters. Id. at 168, 121 S.Ct. 675. The Supreme Court determined the Corps’ regulatory authority under the Clean Water Act is rooted in Congress’ “traditional jurisdiction” over navigable waters. Id. at 172, 121 S.Ct. 675. The Court held that the Corps exceeded its authority when it attempted to regulate isolated intrastate waters based solely on their status as habitat for migratory birds. Id. at 174, 121 S.Ct. 675. SWANCC, Hubenka contends, must be interpreted to mean that the Corps’ jurisdiction under the Clean Water Act extends only to waters that are navigable in fact or waters that are actually adjacent to navigable waters. He urges this court to adopt the reasoning of the Fifth Circuit Court of Appeals, which determined, under SWANCC, that the Clean Water Act is “not so broad as to permit the federal government to impose regulations over ‘tributaries’ that are neither themselves navigable nor truly adjacent to navigable waters.” In re Needham, 354 F.3d at 345; see also Rice v. Harken Exploration Co., 250 F.3d 264, 270 (5th Cir.2001) (“[A] body of water is protected under the Act only if it is actually navigable or is adjacent to an open body of navigable water.”). The SWANCC Court observed that a “significant nexus” between the subject water and a navigable water is sufficient to establish jurisdiction under the Clean Water Act. See 531 U.S. at 167, 121 S.Ct. 675 (discussing rationale for the Court’s prior decision in Riverside). The Fifth Circuit concluded that a “significant nexus” occurs only when a nonnavigable water is actually adjacent to a navigable water. See Rice, 250 F.3d at 268-70. Under its view, the term “adjacent” does not encompass all tributaries that eventually flow into navigable waters. In re Needham, 354 F.3d at 345. The Supreme Court’s opinion in SWANCC does not compel such a narrow interpretation of the phrase “significant nexus.” The Court has noted “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems.” Riverside, 474 U.S. at 133, 106 S.Ct. 455. Indeed, Congress enacted the Clean Water Act with the comprehensive objective of “restoring] and maintaining] the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The legislative history is clear: The [pollution] control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes.... Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the [Clean Water Act’s pollution] control requirements must be made to the navigable waters, portions thereof, and their tributaries. 5.Rep. No. 92-414, at 77 (1972), as reprinted in 1972 U.S.C.C.A.N. at 3742-43 (emphasis added). It is evident that “[a]ny 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.” Deaton, 332 F.3d at 707. Given the “breadth of congressional concern for protection of water quality” evidenced in the text of the Clean Water Act and in its legislative history, Riverside, 474 U.S. at 133, 106 S.Ct. 455, this court concludes the potential for pollutants to migrate from a tributary to navigable waters downstream constitutes a “significant nexus” between those waters. Accordingly, we cannot say the Corps’ tributary rule is arbitrary, capricious, or manifestly contrary to the Clean Water Act. Several post-S'WANC'C' courts have determined the connection between tributaries and downstream navigable waters establishes' sufficiently the “significant nexus” required for jurisdiction under the Clean Water Act. Deaton, 332 F.3d at 712; United States v. Rapanos, 339 F.3d 447, 452 (6th Cir.2003); Headwaters Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir.2001). This court holds the Corps’ tributary rule is a permissible interpretation of the Clean Water Act. Accordingly, under Chevron, we must defer to the Corps’ interpretation of the statute. (2) Application of the Tributary Rule to Hubenka’s Actions It is undisputed that the Wind River is a tributary of navigable waters. Thus, under the Corps’ tributary rule, the Wind River is a “water of the United States” for purposes of the Clean Water Act. See 33 C.F.R. § 328.3(a)(5). Accordingly, the Corps may regulate dredge and fill activities below the ordinary high water mark of the Wind River. See 33 U.S.C. § 1344(a); 33 C.F.R. § 328.4(c)(1). On appeal, Hubenka does not dispute that he caused three dikes to be constructed below the ordinary high water mark of the Wind River. He does argue, however, that he did not violate the Act because his construction techniques did not add pollutants to the Wind River. In a similar vein, Hubenka alleges his dikes do not violate the Clean Water Act because they have no measurable or theoretical effect on a water of the United States. Hubenka argues, without citation to authority, that his use of a bulldozer to construct dikes did not amount to the addition of a pollutant into the Wind River because the construction did not add materials from outside the river’s banks. The Clean Water Act prohibits, absent a permit, the discharge of any pollutant into a water of the United States. 33 U.S.C. § 1311(a). The Act’s definition of “pollutant” includes “dredged spoil,” “rock,” and “sand.” Id. § 1362(6). “ ‘[D]redged’ material is by definition material that comes from the water itself.” Avoyelles Sportsmen’s League Inc. v. Marsh, 715 F.2d 897, 924 n. 43 (5th Cir.1983); see also United States v. Deaton, 209 F.3d 331, 335-36 (4th Cir.2000) (explaining that digging up and redepositing material constitutes the addition of a pollutant under the Clean Water Act). Under the plain language of the Clean Water Act, it is clear that Hubenka’s use of river cobbles and sand to construct dikes in a water of the United States constitutes a discharge of a pollutant. See Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 625-26 (8th Cir.1979) (concluding that the use of rock and sand to construct dams in waters of the United States “appear[s] to come within the plain meaning of the [Clean Water] Act”). Moreover, Corps regulations state that [t]he Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. 33 C.F.R. § 323.2(d)(2)(i) (emphasis added). Hubenka’s use of a bulldozer to move river bottom materials in order to construct his dikes unquestionably falls within the scope of § 323.2(d)(2)®. Hubenka’s claim that he did not add a pollutant to the Wind River is without merit. Hubenka’s claim also fails to the extent that he argues there is no violation of the Clean Water Act unless some deleterious effect upon downstream waters can be shown. To state a violation of the Clean Water Act, a plaintiff need only show that the defendant discharged a pollutant into a water of the United States from a point source without a permit. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1141-42 (10th Cir.2005), petition for cert. filed Jan. 19, 2006 (No. 05-933). There is no need to prove a defendant’s discharge of pollutants into a tributary caused any deleterious effect on the navigable waters downstream. Ashland Oil, 504 F.2d at 1329; United States v. Eidson, 108 F.3d 1336, 1342 n. 7 (11th Cir.1997). In sum, the Clean Water Act was properly applied to Hubenka’s three dikes on the Wind River; his arguments to the contrary are unavailing. B. Admission of Evidence under Rule 404(b) At trial, the district court allowed testimony about LID’s and Hubenka’s illegal attempts to divert the Wind River to the south in the years before the construction of the dikes in 2000. Hubenka argues the court violated Rule 404(b) of the Federal Rules of Evidence by allowing the government to use this testimony to show that Hubenka acted in conformity with prior wrongful activities. “We review a district court’s ruling on the admissibility of evidence for an abuse of discretion.” Christiansen v. City of Tulsa, 332 F.3d 1270, 1283 (10th Cir.2003). “We must afford great deference to the district court; review of a cold record is a poor substitute for a trial judge’s intimate familiarity with the evidence and its role in the context of the trial as a whole.” Id. (quotation omitted). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts is admissible under Rule 404(b) if (1) it is offered for a proper purpose; (2) it is relevant; (3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and (4) the court, upon request, instructs jurors to consider the evidence only for the purpose for which it was admitted. United States v. Tan, 254 F.3d 1204, 1207 (10th Cir.2001). Rule 404(b) is “an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition.” Id. at 1208 (quotation omitted). Here, the government was required to prove Hubenka violated the Clean Water Act knowingly, “not as the result of ignorance, mistake, or accident.” R. vol. I at 62 (Jury Instruction No. 24). The trial court concluded that evidence concerning Hubenka’s past encounters with the Corps and the Corps’ Clean Water Act regulations was “probative in determining [Hubenka’s] knowledge, intent, and absence of mistake or accident when discharging material into the river.” United States v. Hubenka, No. 04-CR-04, at 2 (D.Wyo. Oct. 25, 2004) (order denying defendant’s motion for new trial). It further determined “that the probative value of such evidence was not outweighed by the possible prejudicial effects.” Id. at 3. Lastly, it instructed the jury that it was to consider evidence concerning Hubenka’s alleged prior violations of the Clean Water Act only for the purpose of determining whether Hubenka acted knowingly when he constructed the dikes in 2000. R. vol. I at 62 (Jury Instruction No. 25). The court specifically instructed jurors not to consider allegations “as evidence that Mr. Hubenka has a tendency to commit” violations of the Clean Water Act. Id. In sum, admission of the 404(b) evidence satisfied all four prongs of the test set out in Tan. We therefore conclude the district court did not abuse its discretion when it allowed testimony about Hubenka’s alleged prior violations. IV. CONCLUSION For the reasons stated above, the judgment of the United States District Court for the District of Wyoming is affirmed. .In an average year, the Wind River's peak runoff is in the range of 7000 to 8000 cubic feet per second. The highest volume recorded during a flood event on the river was 13,900 cubic feet per second. . The Corps regulates the discharge of dredged and fill material under the Clean Water Act. 33 U.S.C. § 1344(a), (d). . The Corps' permit approved the use of a "stone-toe revetment” to stabilize the north bank of the river. The revetment consisted of concrete rubble along the bottom slope of the river bank held in place with wire mesh. . Hubenka also had Neal construct a fourth dike further downstream. The government did not charge Hubenka in conjunction with the construction of the fourth dike. . We recognize that the Fifth Circuit Court of Appeals, reading SWANCC broadly, has come to the opposite conclusion. United States v. In re Needham, 354 F.3d 340, 345 n. 8 (5th Cir.2003). As explained below, unlike the Fifth Circuit, this court sees no conflict between the Court’s holding in SWANCC and the Corps' tributary rule. We thus conclude the tributary rule is entitled to Chevron deference. . The United States also argues that the Wind River is a "water of the United States” because it is navigable in fact. Because we conclude the Wind River is a water of the United States by virtue of its status as a tributary to a navigable water, we need not decide whether the river is navigable in fact, and we express no opinion on the issue.

City of Olmsted Falls v. United States Environmental Protection Agency

OPINION KENNEDY, Circuit Judge. This suit stems from a challenge to a “dredge and fill” permit issued by Corps Defendants pursuant to Section 404 of the Clean Water Act, Title 33 U.S.C. § 1344 (Section 404) by the City of Olmsted, a down-river municipality, and a private citizen who opposed the City of Cleveland’s expansion of Hopkins International Airport. The expansion project called for a new runway, which required the filling and culverting of “5,400 linear feet of Abram Creek, the filling of 2,500 linear feet of Abram Creek tributaries, and the filling' of 87.85 acres of wetlands.” Joint Appendix at 321 (J.A.) The Clean Water Act not only requires a permit from Corps Defendants, it also requires á certification from the state involved, in this case, Ohio, that the state’s environmental requirements have been met. The City of Cleveland had, therefore, applied to the Ohio Environmental Protection Agency (OEPA) for state certification as required by Title 33 U.S.C. § 1341 (Section 401). In other litigation, the City of Cleveland was dealing with the United States Environmental Protection Agency (USEPA) and the OEPA on matters relating to permits for run-off fro'm the existing airport as well as other issues related to the expansion. BACKGROUND Before beginning any project that requires a “discharge of dredged or fill material into the navigable waters [of the United States]” a party must apply for a permit. 33 U.S.C.A. § 1344. This permit is termed' a “dredge and fill” permit. In order to obtain a dredge and fill permit under Section 404, an applicant must first comply with Section 401(a)(1): Any applicant for a Federal License or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State, in which the discharge will comply with [certain provisions] of this title .... If the State ... fails or refuses to act on a request for certification within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the proceeding sentence .... 33 U.S.C. § 1341(a)(1). The relevant regulation governing procedures to be taken by the Corps Defendants in processing permits requiring a Section 404 permit provides, in part, that [n]o permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act .... 33 C.F.R. § 325.2(b)(l)(ii). In accordance with its obligations under federal environmental statutes and regulations, the City of Cleveland sought OEPA certification of its project pursuant to Section 401. After issuing comments that resulted in the City of Cleveland filing a revised Section 401 application, the OEPA held hearings and expressed further concerns related to the environmental impact of the expansion on Abram Creek. Eventually the OEPA expressly waived its authority to act on the Section 401 application. Corps Defendants then conducted a review of the project. This review requires a balancing of “a number of economic and environmental factors,” Town of Norfolk v. United States Army Corps of Eng’rs., 968 F.2d 1438, 1454 (1st Cir.1992), including “evaluating the probable impacts ... of the proposed activity and its intended use on the public interest,” 33 C.F.R. § 320.4(a)(1). During its review, Corps Defendants weigh “[t]he benefits which reasonably may be expected to accrue ... against [the project’s] reasonably foreseeable detriments.” Id. Corps Defendants issued the Section 404 permit to the City of Cleveland. The permit required that the City of Cleveland undertake certain mitigating activities to offset the environmental degradation of the project. The district court described the mitigation activities as follows: Preserve 1070 linear feet of Abram Creek downstream of the Airport; Provide $2 million toward preserving 3600 linear feet of Abram Creek upstream of the Airport; Restore 265 acres of wetlands located in Lorain County; Restore 5000 linear feet of the Black River; Enhance 12,400 linear feet of Doan Brook; Provide $682,000 toward the restoration of 3,264 linear feet of Woodiebrook Creek; Provide $600,000 toward the preservation of 4,707 linear feet of Spring Brook; and Provide $500,000 toward the preservation of 3,000 linear feet of Elk Creek. (J.A. at 322). Construction began two days after the permit was issued on May 20, 2001. Plaintiffs filed suit against the USEPA, the then head of the USEPA, the Regional Administrator for Region Five of the USEPA, the Corps Defendants, the City of Cleveland, the Mayor of the City of Cleveland, and ten Doe defendants. Their complaint alleged various violations of the Clean Water Act, asked the district court to set aside the Section 404 Permit, requested an injunction and declaratory relief, and sought an order compelling compliance with Section 401 Certification. In particular, Plaintiffs complained' that Corps Defendants improperly relied On the OEPA’s waiver of the Section 401 Certification. Plaintiffs also argued that the type and quantity of mitigation proposed by the City of Cleveland was inadequate and that the proposed permit violated various federal and state regulations, including the so-called federal antidegradation rule. Plaintiffs dismissed the City of Cleveland and the Mayor of the City of Cleveland in their first amended complaint. The district court, in two different opinions, dismissed portions of Plaintiffs’ complaint and granted judgment on the administrative record to Corps Defendants on the remainder of the complaint. In its first opinion, after dismissing Defendant USEPA and all parties related to USEPA for lack of subject matter jurisdiction, the district court determined that Corps Defendants were entitled to rely on the waiver by OEPA with respect to compliance with Ohio’s requirements, or in the alternative, that Plaintiffs failed to support a claim that Corps Defendants acted arbitrarily, capriciously, or contrary to law in relying on the waiver. In its second opinion, the district court granted judgment on the administrative record to all remaining defendants. The district court determined that 40 C.F.R. § 131.12, or as Plaintiffs term it, the federal antidegradation rule, applies to states only. As such, the district court held that the federal antidegradation rule was inapplicable to Corps Defendants. Second, the district court found that it was neither arbitrary nor capricious for Corps Defendants to use compensatory mitigation rather than avoidance mitigation and mitigation by minimization of impacts on existing uses. The district court also found that Corps Defendants did not act in an arbitrary or capricious manner when they concluded that the proposed project would not sufficiently degrade the waters of the United States, as prohibited by 40 C.F.R. § 230.10(c). Additionally, the district court found that Corps Defendants did not act arbitrarily or capriciously when they determined that granting the permit would not violate state water quality standards under 40 C.F.R. § 230.10(b)(1). Finally, the district court refused to expand the record and consider the Water Quality Standards Handbook (handbook) because it determined that the handbook would not aid it in reaching a decision. On appeal, Plaintiffs challenge the district court’s rulings in several important respects. First, Plaintiffs argue that the district court erred in failing to apply 40 C.F.R. § 131.12(a) (the federal antidegra-dation rule) in granting judgment on the administrative record* because 40 C.F.R. § 131.12(a) mandates that existing uses in the stream must be maintained and protected. Second, Plaintiffs dispute the district court’s interpretation of federal regulations and the Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency entitled The Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines (MOA) and argue that it was improper for Corps Defendants to use compensatory mitigation rather than avoidance and minimization of impacts on existing uses mitigation. Third, Plaintiffs challenge the district court’s dismissal of a portion of their complaint, arguing that Corps Defendants could not rely on OEPA’s waiver. They also argue that the permit was improperly issued because of the reliance on that waiver. Finally, Plaintiffs argue that the district court should have granted their motion to supplement the record with the handbook. They contend that the district court should have considered that document because of the guidance it provides in interpreting USEPA regulations. ANALYSIS A.Mootness Because the airport expansion project appeared to be complete at the time of our review, we directed both parties to file letter briefs on whether Plaintiffs’ claims were moot. Both parties argue that despite the fact that construction on the project and the filling of Abram Creek are complete, the issues raised by Plaintiffs are not moot, because should Plaintiffs prevail in their suit, the permit issued by the Corps Defendants would have to be invalidated and another permitting process would be required. Because a live controversy exists with respect to the permit itself, we agree that the issues raised in Plaintiffs’ complaint are not moot and that we may address all aspects of their appeal. B. Reliance on the OEPA waiver Plaintiffs argue that under Ohio law, the OEPA cannot issue a Section 401 waiver and that the Corps Defendants were aware of that fact. The district court dismissed this portion of Plaintiffs’ complaint for failure to state a claim upon which relief could be granted. “This court reviews de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6).” Care Heating & Cooling, Inc. v. American Standard, Inc., 427 F.3d 1008, 1012 (6th Cir.2005) (citing P.R. Diamonds, Inc. v. Chandler, 364 F.3d 671, 680 (6th Cir.2004)). We agree with the district court that Corps Defendants could properly rely on OEPA’s waiver' in this case. If Corps Defendants cannot rely on the state agency to properly follow its own laws and regulations with respect to issuing waivers, the Section 401 waiver procedure would, in effect, require Corps Defendants to engage in an analysis of each states’ rules and regulations on the issuing of Section 401 waivers, come to an independent assessment as to whether the state agency followed those rules on issuing Section 401 waivers, and, if Corps Defendants determined that they did not follow them, fail to grant a permit despite an explicit waiver by the state. Such a procedure, in addition to being cumbersome and duplicative of effort, would undermine the role that state environmental agencies play in the Section 401 process. It would also contravene the express language of the federal statute section which provides not only for express waivers by a state, but- also for waivers by silence. See 33 U.S.C. § 1341(a)(1). C. Issues decided on the agency record We now address the issues the district court decided on the agency record. Because the Clean Water Act does not articulate its own standard of review, we review agency action pursuant to the Administrative Procedures Act. See, e.g., Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997). We review agency actions to see if they were arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). See Slater, 120 F.3d at 632. We accord deference to the agency’s views, but we still conduct “a thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (abrogated on other grounds). 1. Federal Antidegradation Rule [3] First, Plaintiffs argue that the Corps Defendants erred in issuing a permit without first deciding whether the federal antidegradation rule was satisfied. The federal antidegradation rule requires states to develop an antidegradation policy. 40 C.F.R. §§ 131.1, 131.12(a). We agree with the district court that the federal antidegradation rule only places obligations on states, not on Corps Defendants. By its very terms, 40 C.F.R. § 131.12 requires that “State[s] shall develop and adopt ... an antidegradation policy...” In fact, § 131.12 only places obligations on states. It does not mention any other actor but states. Corps Defendants cannot be liable for violations of this regulation when they have no obligations under it. 2. Appropriate mitigation standard Similarly, Plaintiffs’ position on mitigation is incorrect. Plaintiffs argue that the USEPA has two different standards of mitigation, one for wetland fills and one for filling other bodies of water. Plaintiffs argue that compensatory mitigation is permissible for the former and that avoidance and minimization mitigation are the only permissible forms of mitigation for the latter. Plaintiffs rely on the MOA and federal regulations as supporting its position. - No federal regulation, however, indicates that avoidance and minimization is the only permissible means to mitigate environmental impacts on streams or creeks. The MOA cited by plaintiffs for support of their theory is similarly unavailing. While the MOA does indicate that in the case of wetlands, “at a minimum, one for one functional replacement (i.e., no net loss of values),” is to be the rule, nowhere in the policy statement or the discussion of the types of mitigation does the MOA indicate that compensatory mitigation can only be used for wetlands. (J.A. at 651-53). Thus, the regulations and the MOA do not foreclose compensatory mitigation in all cases involving streams or creeks. Plaintiffs’ assertions to the contrary are simply incorrect. Because compensatory mitigation is a permissible form of mitigation for environmental degradation of bodies of water such as Abram Creek, we agree with the district court that compensatory mitigation is an acceptable form of mitigation to offset the environmental degradation of streams and creeks under applicable federal environmental laws. 3.The Corps Defendants’ decision to issue a permit was not arbitrary or capricious. The district court also properly addressed whether Corps Defendants’ actions were arbitrary or capricious, both with respect to 40 C.F.R. § 230.10(c) and § 230.10(b)(1). Title 40 C.F.R. § 230.10(c) indicates that “no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.” In this ease, a portion of Abram creek is replaced by a culvert. As such, absent mitigation of the harm, the environmental impact on the creek would be contrary to the regulation. But, we agree with the district court that in light of the significant compensatory mitigation discussed by Corps Defendants both with respect to Abram Creek itself as well as the other streams and wetlands in the watershed, the Corps Defendants’ finding that the airport expansion will not cause or contribute to a significant degradation of the waters of the United States was neither arbitrary nor capricious. We make this finding accepting Plaintiffs’ contentions, as we must, that the permit results in significant degradation to this culverted portion of Abram Creek. Corps Defendants granted the Section 404 permit with the understanding that as compensation for the environmental degradation caused by the culvert project, the City of Cleveland would undertake several projects to preserve, improve, and protect other areas. It was neither arbitrary nor capricious for the Corps Defendants to balance the environmental harm caused by the project against the benefits of the proposed mitigation and find that, on balance, the project would not contribute to a significant degradation of the waters of the United States. With respect to 40 C.F.R. § 230.10(b)(1), we agree with the district court that it was neither arbitrary nor capricious for Corps Defendants to grant the permit. Title 40 C.F.R. § 230.10(b) provides that “No discharge of dredged or fill material shall be permitted if it: (1) Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard .... ” Plaintiffs argue that the permit violates Ohio’s antidegra-dation policy, thereby violating 40 C.F.R. § 230.10(b)(1). We disagree. The OEPA had engaged in extensive analysis and comment on the project. Comments made by OEPA representatives indicated that the mitigation agreed to by the City of Cleveland would exceed Ohio water quality standards. In particular, the district court referenced OEPA comments: ... [L]et me point out that I have issued administrative orders to the City of Cleveland as part of the waiver process that will provide the extensive mitigation of wetland and stream impacts of this project. Far from abandoning the environment by waiving our Section 401 authority, OEPA will achieve via this administrative order far reaching mitigation projects that exceed regulatory authority. (J.A. at 343-44.) The district court also pointed out that the Corps Defendants also took into account the mitigating fact that the permit required Cleveland to restore over 4000 linear feet of Abram Creek in determining that water conditions would improve. Because we can find no error in the Corps Defendants’ conclusion that the quality of the water in Abram Creek would improve as a result of this project, nor can we find fault with the district court’s reasoning with respect to the Corps Defendants’ reliance on the OEPA as to the other mitigation as required by the permit, we cannot say that the Corps Defendants acted in an arbitrary or capricious fashion when they issued the permit. 4. The handbook Finally, with respect to the admission of the handbook, Plaintiffs do not explain, and after reading it, the court does not understand what relevance the handbook has to these proceedings. While it is true, as Plaintiffs note, that the handbook provides detailed discussion of antidegra-dation and water quality standards, that information does not aid Plaintiffs’ arguments, nor would it have enhanced the district court’s analysis or decision. As we have already mentioned, the antidegra-dation rules do not apply to Corps Defendants; they place obligations only on the states. Thus, a more detailed understanding of those rules is unnecessary. Similarly, a more detailed understanding of water quality standards would be useful only if this court accepted Plaintiffs’ arguments that compensatory mitigation was an improper form of mitigation and derivatively that any decrease in water quality would result in a ground to revoke the permit. Consequently, because it was neither arbitrary nor capricious for Corps Defendants to find that the level of compensatory mitigation proposed was adequate, it was unnecessary for the district court to consult the handbook. We affirm the district court in all respects. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment. . The Department of the' Army; Thomas E. White, the Secretary of the Army; the Army Corps of Engineers; and Glen R. Dewillie, the District Engineer for the Army Corps of Engineer's Buffalo District, all have a hand in the permitting process. This opinion will refer to them collectively as Corps Defendants. .In this case, the airport needed to add new runways in order to accommodate larger planes, diminish airport congestion, and enhance airport safety. (J.A. at 764-777.) Corps Defendants balanced these important public interest goals against the environmental harm caused by the destruction of a portion of Abram Creek. . Additional criteria applicable to CWA section 404 permits are set forth at 40 C.F.R. pt. 230. . Plaintiffs appealed the OEPA’s waiver, and the Ohio Environmental Review Appeals Commission ruled that the OEPA could not waive its authority to act under Ohio law. An Ohio state court later invalidated that holding due to a lack of standing.

Ohio Valley Environmental Coalition v. Bulen

Affirmed in part, vacated in part, and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge NIEMEYER and Judge CONRAD joined. OPINION LUTTIG, Circuit Judge: This case presents the question whether the United States Army Corps of Engineers (“the Corps”) exceeded its authority under the Clean Water Act (“CWA”) when it promulgated Nationwide Permit 21 (“NWP 21”), a general permit for the discharge of dredged or fill material into the waters of the United States that allows projects to proceed only after receiving individualized authorization from the Corps. We conclude that the Corps complied with the CWA when it promulgated NWP 21. The contrary judgment of the district court is therefore vacated. I. The Clean Water Act prohibits the discharge of any “pollutant” into the waters of the United States without a permit. See 33 U.S.C. § 1311(a). The Army Corps of Engineers has authority under the CWA to issue two types of permits for the discharge of dredged or fill material: individual permits and general permits. The Corps issues individual permits under section 404(a) on a case-by-case basis for discharges at “specified disposal sites,” after providing notice and opportunity for public hearing. Id. § 1344(a). The Corps issues general permits, which authorize “categories of activities” rather than individual projects, under section 404(e). That section provides, in relevant part, that: the [Corps] may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the [Corps] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Any general permit issued under this subsection shall ... set forth the requirements and standards which shall apply to any activity authorized by such general permit. Id. § 1344(e)(1). Pursuant to section 404(e), the Corps has promulgated a number of general permits, all but one of which authorize projects that comply with the permits’ terms to proceed without prior approval by the Corps. The exception, NWP 21 — which authorizes discharges of dredged or fill material associated with surface coal mining and reclamation projects — requires that projects be individually authorized by the Corps. NWP 21 authorizes: [discharges of dredged or fill material into waters of the U.S. associated with surface coal mining and reclamation operations provided the coal mining activities are authorized by the DOI, Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 and provided the permittee notifies the District Engineer in accordance with the “Notification” General Condition. In addition, to be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing. Issuance of Nationwide Permits, 67 Fed. Reg.2020, 2081 (Jan. 15, 2002). In this litigation, plaintiffs, a coalition of environmental groups, have raised various challenges to NWP 21. The district court did not reach most of those challenges, holding simply that NWP 21 is facially invalid 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), because it conflicts with the unambiguous meaning of section 404(e). J.A. 1070. The district court accordingly suspended existing authorizations under NWP 21 and enjoined the Corps from issuing further NWP 21 authorizations in the Southern District of West Virginia. Id. at 1079, 104 S.Ct. 2778. This appeal followed. II. The district court concluded that NWP 21 conflicts with the unambiguous meaning of section 404(e) for essentially four reasons. First, it concluded that NWP 21 “defines a procedure instead of permitting a category of activities.” J.A. 1070. Second, it concluded that section 404(e) “unambiguously requires determination of minimal impact before, not after, the issuance of a nationwide permit,” and that, in violation of this requirement, “NWP 21 provides for a post hoc, case-by-case evaluation of environmental impact.” Id. Third, it concluded that section 404(e) unambiguously requires that general permits authorize discharges to proceed without further involvement from the Corps, and NWP 21 violates this requirement because it authorizes projects to proceed only after receiving individualized approval from the Corps. Id. Finally, it concluded that NWP 21 violates the statutory requirement that the Corps provide notice and opportunity for public hearing before issuing a permit. Id. None of these conclusions withstands scrutiny. At the outset, we note that, while our review of the district court’s construction of section 404 is de novo, our review of the Corps’ construction of section 404 is governed by the Supreme Court’s decision in Chevron. Under Chevron, if the requirements of section 404 are unambiguous, “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. However, if section 404 is ambiguous or silent with respect to the questions at issue, we “must defer, under Chevron, to [the Corps’ interpretation of its governing statute], so long as that interpretation is permissible in light of the statutory text and reasonable.” Asika v. Ashcroft, 362 F.3d 264, 267 (4th Cir.2004) (per curiam). A. The district court first concluded that NWP 21 fails to comply with section 404(e) because it “defines a procedure instead of permitting a category of activities.” J.A. 1070. We disagree. NWP 21 plainly authorizes a “category of activities.” The category of activities authorized by NWP 21 consists of those discharges of dredged or fill material that (1) are associated with surface coal mining and reclamation operations, so long as those operations are authorized by the Department of Interior or by states with approved programs under the Surface Mining Control and Reclamation Act of 1977, (2) are preceded by notice to the Corps, and (3) are approved by the Corps after the Corps concludes that the activity complies with the terms of NWP 21 and that its adverse environmental effects are minimal both individually and cumulatively. See 67 Fed.Reg. at 2081. The district court erroneously reasoned that NWP 21 does not authorize a “category of activities” because it is defined by procedural requirements “rather than objective requirements or standards.” J.A. 1072 (“NWP 21 imposes no limit on the number of linear feet of a stream, for example, that might be impacted by a valley fill or surface impoundment. It does not limit the total acreage of a watershed that might be impacted.”). As an initial matter, we note that, by virtue of its incorporation of the requirements of the Surface Mining Control and Reclamation Act (“SMCRA”), NWP 21 does contain substantive requirements. More importantly, nothing in section 404(e) or in logic prohibits, much less unambiguously prohibits, the use of procedural, in addition to substantive, parameters to define a “category.” The district court therefore erred when it concluded that NWP 21 does not define a “category of activities.” B. The district court next concluded that NWP 21 violates the unambiguous terms of section 404(e) because it allows the Corps to defer the statutorily-required minimal-environmental-impact determinations until after issuance of the nationwide permit. J.A. 1070 (“The statute unambiguously requires determination of minimal impact before, not after, the issuance of a nationwide permit.”). Section 404(e) allows the Corps to issue a general permit only “if [it] determines ... that the activities in [the subject] category ... will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e). The district court concluded that the Corps did not make the required minimal-impact determinations before issuing NWP 21, but instead opted to make those determinations on a case-by-case basis after issuance of the permit. J.A. 1072-73. It is clear from the record before us that the Corps did make the required minimal-impact determinations before it issued NWP 21. See id. at 512 (stating that the Corps “determined that NWP 21 ... will authorize only those activities with minimal adverse effects on the aquatic environment, individually or cumulatively”). The Decision Document for NWP 21 and the supplement to that document, set forth at pages 469-512 of the Joint Appendix, contain the Corps’ pre-issuance analysis of the anticipated environmental impact of the activities authorized by NWP 21. Id. at 462 (“This document contains a general assessment of the foreseeable effects of the individual activities authorized by this • NWP, the anticipated cumulative effects of those activities, and the potential future losses of waters of the United States that are estimated to occur until the expiration date of the NWP.”). The Corps’ impact analysis took account of a variety of factors, including public commentators’ opinions, id. at 464-65 (stating that the Corps “uses substantive public comments on proposed NWPs to assess the expected impacts” and considering several suggestions made by public commentators); NWP 21’s incorporation of SMCRA’s requirements, id. at 470 (stating that the review required under SMCRA will ensure that the permit will not authorize activities that affect historic properties), 476 (stating that the review required under SMCRA will ensure that the permit will not authorize activities that will jeopardize any endangered species); the nature of the coal-mining activities authorized by NWP 21, id. at 475 (“The activities authorized by this NWP are unlikely to adversely affect salinity gradients, since the NWP authorizes surface coal mining activities that are typically located in inland areas.”), 482 (“The nature and scope of the work authorized by the NWP will most likely restrict the extent of the beneficial and detrimental effects to the area immediately surrounding the surface coal mining and reclamation activity.”); the applicability of a variety of General Conditions to NWP 21, id. at 483 (“No toxic discharges will be authorized by this NWP. General Condition 18 specifically states that the material must be free from toxic pollutants in toxic amounts.”), 484 (“General Condition 19 requires permittees to avoid and minimize discharges of dredged’ or fill material into waters of the United States to the maximum extent practicable on the project site.”); and data about usage of previous versions of NWP 21, id. at 481 (estimating, based on usage of previous versions of NWP 21, that, over the five-year duration of this issuance of NWP 21, “approximately 1,625 activities could be authorized ... resulting in impacts to approximately 875 acres of waters of the United States”), 511 (“From February 11, 1997 to February 11, 2002, approximately 539 individual activities were authorized under approximately 156 NWP verifications, impacting approximately 42.58 acres of riverine and palust-rine waters within West Virginia. Based on the types of activities authorized within West Virginia during previous years, the Districts anticipate similar use of this NWP in the future. NWP 21 generally does not cause the loss of wetlands in the state of West Virginia.”). Based on these considerations and others, the Corps concluded that the activities authorized by NWP 21 “will not. result in significant degradation of the aquatic environment.” Id. at 485.. This determination was sufficient to meet the requirements of section 404(e). The district court held that the Corps did not satisfy section 404(e) because it did not provide an ex ante guarantee that the activities authorized by NWP 21 would have only a minimal impact. The district court reasoned that, under section 404(e), “[t]he issuance of a nationwide permit ... functions as a guarantee ab initio that every instance of the permitted activity will meet the minimal impact standard,” and that, by permitting the Corps to engage in “post hoc, case-by-case evaluation of environmental impact,” NWP 21 “runs afoul of the statutory requirement of initial certainty.” Id. at 1070. The district court erred. It is simply not the case that issuance of a general permit functions as a guarantee ab initio that every instance of the permitted activity will have only a minimal impact. Neither the phrase “guarantee ab initio ” nor the phrase “initial certainty” appears in section 404(e). And neither that section nor any other provision of the CWA specifies how the Corps must make the minimal-impact determinations, the degree of certainty that must undergird them, or the extent to which the Corps may rely on post-issuance procedures in making them. For two reasons, we do not believe that an interpretation of section 404(e) that would require initial certainty is tenable. First, section 404(e)(2) gives the Corps authority to revoke or modify a general permit if; after issuing the permit, it “determines that the activities authorized by such general permit have an adverse impact on the environment.” 33 U.S.C. § 1344(e)(2). This provision demonstrates that Congress anticipated that the Corps would make its initial minimal-impact determinations under conditions of uncertainty and that those determinations would therefore sometimes be inaccurate, resulting in general permits that authorize activities with more-than-minimal impacts. It also demonstrates that Congress expected that the Corps would engage in post-issuance policing of the activities authorized by general permits in order to ensure that their environmental impacts are minimal. Second, it is impossible for the Corps’ ex ante determinations of minimal impact to be anything more than reasoned predictions. Even under the paradigmatic general permit envisioned by the district court, where the parameters of the authorized activities are delineated in objective, measurable terms, the Corps’ minimal-impact determinations would necessarily be a forecast only. This is so because the environmental impact of the activities authorized by a general permit depends on factors that, as a practical matter, are outside the Corps’ ability to predict with certainty ex ante. This uncertainty is especially acute when the Corps issues a nationwide permit like NWP 21 because the Corps must attempt to forecast the environmental effects the authorized activities could have if undertaken anywhere in the country under any set of circumstances. As the intervenors contend, “[i]t is impossible to conceive of a class of discharges that ... ‘invariably’ could have no adverse environmental effects, individually or cumulatively. Any individual fill, depending on its location, might have more than a minimal adverse effect. It could, for instance, be located at a site that is a critical habitat for an endangered species. Moreover, any class of fills could have more than a minimal adverse effect on a cumulative basis, depending on the number and location of the fills.” Intervenors’ Br. at 52 (citation omitted). Given section 404(e)(2)’s recognition of the possibility that activities authorized by a general permit could result in a more-than-minimal impact, as well as the impossibility of making an ex ante guarantee that the authorized activities could never result in a more-than-minimal impact, we cannot agree with the district court’s conclusion that section 404(e) allows the Corps to issue general permits only for those activities that “will invariably have only minimal effects on the environment.” J.A. 1070. Nor can we agree with the district court’s implicit conclusion that the Corps may not rely on the availability of post-issuance procedures, such as NWP 21’s requirement of post-issuance individualized authorization, when it makes its pre-issuance minimal-impact determinations. See id. at 1072-73. The statute is silent on the question whether the Corps may make its pre-issuance minimal impact determinations by relying in part on the fact that its post-issuance procedures will ensure that .the authorized projects will have only minimal impacts. We must therefore defer to the Corps’ conclusion that it may do so if that conclusion is permissible in light of the statutory language and is reasonable. It is both. Again, nothing in the statute specifies how the Corps must make the minimal-impact determinations. And, given the inevitable ex ante uncertainty the Corps confronts when issuing a nationwide permit, its reliance on post-issuance procedures is a reasonable, if not the only possible, way for it to cement its determination that the projects it has authorized will have only minimal environmental impacts. In concluding that section 404(e) permits the Corps to rely in part on post-issuance procedures to make its pre-issuance minimal-impact determinations, we do not suggest that section 404(e) permits the Corps completely to defer the minimal-impact determinations until after issuance of the permit. We would have substantial doubts about the Corps’ ability to issue a nationwide permit that relied solely on post-issuance, case-by-case determinations of minimal impact, with no general pre-issuance determinations. In such a case, the Corps’ “determinations” would consist of little more than its own promise to obey the law. Apparently, the district court' believed that such was the case here. See J.A. 1073 (“The ‘category’ of activities authorized by NWP 21 ... is nothing more than the collection of activities that the Corps determines, during reviews that take place long after the issuance of NWP 21, will have minimal effects.”). It is true that the Corps acknowledged in its decision document that the PCN and prior-authorization requirements would operate to ensure that NWP 21’s adverse effects on the environment would be minimal. See, e.g., id. at 466 (noting that NWP 21 requires “case-by-case review of all activities, to ensure that the NWP authorizes only those surface coal mining activities that have minimal adverse effects on the aquatic environment”), 478-79 (stating that, with respect to “special aquatic sites,” including sanctuaries and refuges, wetlands, mud flats, vegetated shallows, coral reefs, and riffle and pool complexes, minimal impact will be ensured through individualized review pursuant to the PCN requirement), 480 (“All activities authorized by this NWP require notification to the [Corps], which will allow review of each activity to ensure that adverse effects to economically important fish and shellfish are minimal.”). However, we are satisfied, based on our review of the Corps’ decision document, that the Corps did actually make, in advance, the minimal-impact determinations required by the statute. It made those determinations after undertaking a good-faith, comprehensive, pre-issuance review of the anticipated environmental effects of the activities authorized by NWP 21, and its partial reliance on post-issuance procedures to ensure minimal impacts did not make those determinations any less valid. As explained above, section 404(e) does not unambiguously forbid the Corps from making the minimal-environmental-impact determinations by relying in part on the availability of post-issuance procedures, and such reliance is a reasonable way for the Corps to ensure that the projects it authorizes under general permits will have only minimal impacts. We therefore conclude that the Corps’ minimal-impact determinations, made prior to the issuance of NWP 21, complied with section 404(e). c. The district court’s third basis for invalidating NWP 21 was its conclusion that section 404 unambiguously prohibits the Corps from creating a general permit that authorizes activities to proceed only after receiving individualized approval from the Corps. See J.A. 1070. The district court based its conclusion on the structure of section 404 — which contains separate provisions for individual permits (section 404(a)) and general permits (section 404(e)) — and on its belief that “Congress intended for a potential discharger whose project fits into one of [the categories of activities authorized by a general permit] to begin discharging with no further involvement from the Corps. no uncertainty, and no red tape.” Id. at 1070, 1073-76. The district court thus held that NWP 21, which allows projects to proceed only after receiving post-issuance individualized authorization from the Corps, violates section 404. Contrary to the district court’s conclusion, nothing in section 404 prohibits the Corps from issuing a general permit that contains a requirement of post-issuance individualized consideration or authorization by the Corps. Neither section 404(e) nor any other provision of the CWA defines the term “general permit,” so there is no explicit textual basis for such a conclusion. Moreover, the structure of the statute is not, as the district court believed, disposi-tive on this score. One cannot conclude that, simply because section 404 has separate provisions for individual and general permits, it unambiguously (or even arguably) forbids the creation of a general permit that includes a requirement of individualized consideration or approval. And even if section 404(e) was intended to create a streamlined process for authorizing insignificant discharges, NWP 21 is not inconsistent with that intent. The process for obtaining authorization under a general permit — even one requiring individualized review by the Corps- — -is significantly more expeditious than the process for obtaining an individual permit under section 404(a). See 67 Fed.Reg. at 2024 (stating that “[t]he average time to verify a NWP activity is 19 days” and that “the NWP process is faster than the standard permit process” because “[a]n individual activity authorized by an NWP does not require a public notice or the same level of review required for a standard permit activity”). Given that section 404 does not speak to this issue, the question is whether the Corps’ interpretation — that general permits may contain requirements of individualized review or approval- — -is a reasonable one. We conclude that it is. As explained above, the Corps’ post-issuance, case-by-case policing of the activities authorized by general permits is a reasonable, if not the only possible, means of ensuring that general permits are used to authorize only activities with minimal environmental effects. The Corps’ construction is therefore entitled to Chevron deference. D. The district court’s final basis for invalidating NWP 21 was its conclusion that NWP 21 impermissibly allows the Corps to issue individual authorizations without providing notice and an opportunity for public hearing. See J.A. 1073-74. This, the district court reasoned, is inconsistent with the fact that section 404(a) requires the Corps to provide notice and an opportunity for public hearing before issuing an individual permit, and it “eliminates public involvement in decision-making at a stage where meaningful input in the minimal impact determination is possible.” Id. at 1074. According to the district court, Congress intended “that the Corps consider the public’s concerns before making decisions about whether individual projects or categories of activities will have only minimal adverse effects on the environment.” Id. The fatal flaw in the district court’s analysis is that the Corps did provide notice and opportunity for public hearing before making the determination that the category of activities authorized by NWP 21 would have only minimal adverse effects on the environment. See Proposal to Reissue and Modify Nationwide Permits, 66 Fed.Reg. 42,070, 42,076 (Aug. 9, 2001). Moreover, when the Corps made its minimal-impact determinations, it expressly addressed several of the concerns raised by public commentators. See J.A. 464-65. To the extent that the district court’s conclusion was based on the belief that section 404 requires notice and a hearing before the Corps authorizes an individual project under a general permit, it erred. There is no statutory requirement that notice and opportunity for public hearing be provided before individual projects can proceed under a general permit, and one cannot infer such a requirement from the fact that individual permits can issue only after notice and opportunity for public hearing. Section 404(e)’s only requirement is that there be notice and opportunity for public hearing before the general permit itself issues, and that requirement was clearly satisfied here. III. One issue remains for our consideration in this appeal. Appellants argue that the district court abused its discretion in refusing to join holders of NWP 21 authorizations as necessary parties to this case under the Federal Rules of Civil Procedure. Rule 19(a) provides that a person shall be joined if, among other things, “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the persons’s absence may as a practical matter impair or impede the persons’s ability to protect that interest.” Fed.R.Civ.P. 19(a). Appellants argue that holders of NWP 21 authorizations have an interest in the subject matter of this case — preventing their authorizations from being invalidated — and that their absence will impede them from protecting that interest because they will be unable to present evidence about the extent of each of their investment and reliance interests in their authorizations, evidence appellants claim is relevant to the equitable considerations the district court must take into account in crafting the scope of injunctive relief. The district court held that joinder was not required because the parties are capable of representing the interests of the authorization holders. J.A. 1068. A litigant may serve as a proxy for an absent party if the interests of the two are identical. See Nat’l Union Fire Ins. Co. v. Rite Aid of South Carolina, Inc., 210 F.3d 246, 250-51 (4th Cir.2000). Here, the district court concluded that the interests of the current parties are identical to the interests of the authorization holders because the current parties include coal associations who are arguing on behalf of their members, including members with existing operations dependent on NWP 21. J.A. at 1069. In other words, the district court concluded that the interests of the current parties are identical to the interests of the authorization holders — and that the former would therefore adequately represent the interests of the latter — because both seek to protect investment and reliance interests that would be upset by invalidation of NWP 21. The district court did not abuse its discretion in so concluding and in refusing to join the authorization holders as necessary parties. CONCLUSION In sum, we conclude that the Corps complied with section 404(e) when it issued NWP 21. The Corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit. The Corps’ issuance of NWP 21 thus fell within its authority under section 404(e). The contrary judgment of the district court and the injunction against NWP 21 authorizations are vacated, and the case is remanded for further proceedings not inconsistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED . SMCRA imposes a host of "performance standards” on "all surface coal mining and reclamation operations.” 30 U.S.C. § 1265(b). For example, under SMCRA, all surface coal mining operations must "minimize the disturbances to the prevailing hy-drologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation.” Id. § 1265(b)(10). . For the same reasons, the district court erred when it held that NWP 21 violates section 404(e) because it does not set forth the "requirements and standards” that apply to the activities it authorizes. J.A. 1072. NWP 21 plainly sets forth both substantive and procedural requirements and standards that apply to the activities it authorizes. And nothing in the statute or in the plain meaning of the words dictates that "requirements” and "standards” must be substantive rather than procedural. .The Corps argues that section 404(e) does not unambiguously require that the minimal-impact determinations be made before issuance of a nationwide permit. The Corps believes that the statute allows it to issue a nationwide permit so long as it makes the minimal-impact determinations before the permit is actually used to authorize discharges, even if after issuance of the permit. At the very least, the Corps argues, section 404(e)'s minimal impact determination requirement is temporally ambiguous, and the Corps’ reading is a permissible construction entitled to Chevron deference. Because we conclude that the Corps made the required minimal-impact determinations before issuing NWP 21, we do not reach these contentions. . We recognize that one possible inference to draw from section 404(e)(2) is that, if the Corps discovers that any of the activities authorized by a general permit has a more-than-minimal adverse impact, the Corps' only option is to revoke or modify the entire permit. However, section 404(e)(2) does not unambiguously require that result. In fact, that provision is most naturally read as addressing the Corps’ options when it concludes that the activities authorized.by a general permit have systematic adverse impacts. It does not necessarily address instances in which the Corps concludes that a particular project authorized by the terms of a general permit will have a more-than-minimal impact. As explained below, we conclude that the Corps' interpretation — that it may use more tailored means to prevent adverse impacts on a project-by-project basis — is a permissible construction of the statute and is reasonable. . NWP 21 is not unique in its reliance on post-issuance procedures to ensure minimal impacts. Under General Condition 13, for example, most nationwide permits (24 of the 43) are subject to a pre-construction notification ("PCN") requirement. See 67 Fed.Reg. at 2090-92. Pursuant to this requirement, prospective permittees must notify the Corps of the projects they intend to undertake under the general permit and their anticipated environmental effects. Id. at 2090. A project cannot proceed until either the Corps notifies the prospective permittee that it may proceed or forty-five days have passed since submission of the PCN without receipt of notice from the Corps. Id. In reviewing a PCN, the Corps must "determine whether the activity ... will result in more than minimal individual or cumulative adverse environmental effects.” Id. at 2091. If so, the Corps must either require that the project undergo mitigation or modifications to “reduce the adverse effects on the aquatic environment to the minimal level,” or notify the applicant that "the project does not qualify for authorization under the NWP” and require that it receive an individual permit under section 404(a). Id. at 2092. This procedure is materially indistinguishable from that required by NWP 21. In both cases, the Corps engages in post-issuance review of individual projects to ensure that they have only minimal impacts. The only difference is the default rule. Under the standard PCN requirement, projects are authorized unless the Corps prohibits them. Under NWP 21, projects are prohibited unless the Corps authorizes them. This strikes us as a difference immaterial to the question we address herein. If permits that rely on the PCN requirement to ensure minimal impacts are permissible — and not even appellees contend that they are not — then so is NWP 21. . It is of course open to the plaintiffs on remand to reassert their argument that the Corps' minimal-impact determination was arbitrary and capricious because the Corps relied on erroneous premises or ignored relevant data (and we note that this argument concedes that there was a determination). We express no view on that matter. Our holding today is simply that the Corps did in fact make the determinations required by section 404(e). . We also note that the public is in fact entitled to notice and an opportunity to comment on the individual activities authorized by NWP 21. This is because NWP 21 incorporates SMCRA, and SMCRA authorizes activities only after public notice and comment. See 30 U.S.C. § 1263. . Appellees have raised numerous other challenges to the validity of NWP 21 which, although raised below, were not passed on by the district court and have not been adequately briefed by the parties. We leave those challenges to be adjudicated in the first instance by the district court on remand.

City of Shoreacres v. Waterworth

GARWOOD, Circuit Judge: Plaintiffs-appellants brought this suit under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., against the United States Army Corps of Engineers (Corps) seeking recision of a 33 U.S.C. § 1344 dredge and fill permit issued by the Corps to the Port of Houston (Port) for the construction of a ten-berth cargo and cruise ship terminal adjacent to the Bayport Shipping Channel off Galveston Bay. The district court granted summary judgment to the Corps and the intervenor Port. We affirm. Facts and Proceedings Below On October 8, 1998, the Port filed an application with the Corps for a 33 U.S.C. § 1344 permit to dredge and fill navigable waters of the United States. The Port proposed building a cargo and cruise ship terminal on undeveloped land adjacent to the Bayport Shipping Channel along the northwestern coast of Galveston Bay. The plan called for seven cargo ship berths, three cruise ship berths, and extensive ancillary facilities along a region of the coast that is heavily industrialized. The Port intends to finance the Bayport project with proceeds from a $387 million 1999 bond issue for that purpose approved by the voters of Harris County, Texas in which both the Port and Bayport are located. The Corps undertook the comprehensive technical and public interest review required by the Code of Federal Regulations. See, e.g., 33 C.F.R. § 230 (procedures for implementing NEPA); 33 C.F.R. § 320 (outlining the Corps’ general regulatory policy); 40 C.F.R. § 1502 (preparation of an environmental impact statement). Following public input and preliminary technical work, the Corps issued its Draft Environmental Impact Statement (DEIS) on November 12, 2001. The Corps continued its technical work and accepted public comment on the DEIS until August 2002. Nine months later, on May 16, 2003, the Corps issued its Final Environmental Impact Statement (FEIS) and entertained further public comment until August 2003. The Corps then issued its eight-volume Record of Decision (ROD) on December 19, 2003, in which the Corps approved a plan for the construction of the Bayport terminal and the mandatory preservation of undeveloped areas elsewhere to compensate for the environmental loss at Bayport. The Corps granted the 33 U.S.C. § 1344 dredge and fill permit on January 5, 2004, over five years after the permit application was filed. Meanwhile, as the Corps was considering the Bayport permit application, it was also considering a similar dredge and fill permit application filed in April 2000 by Texas City, Texas to build a six-berth cargo terminal at Shoal Point in Galveston County along the southwestern coast of Galveston Bay. The Corps issued a permit to Texas City on April 23, 2003, approximately one month before it handed down its FEIS on the Port’s Bayport permit application. On January 29, 2004, appellants filed their second (and final) amended complaint asking the district court to vacate the permit and enjoin the Port from proceeding with the Bayport project because the Corps had issued the permit in violation of the CWA and NEPA. Appellants also sought a preliminary injunction against construction while judicial review was pending. Rather than rule on this motion, the district court agreed to an expedited pretrial schedule and a summary judgment ruling by May 4, 2004. The Port then agreed to “stand still” while the case went forward through summary judgment. The parties filed cross-motions for summary judgment in April 2004, and the district court granted summary judgment to ap-pellees and against appellants on May 4, 2004. Final judgment was entered the same day. Discussion 1. Standard of Review We review a grant of summary judgment de novo under the same standard applied by the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002). The decision of the Corps to grant a permit under 33 U.S.C. § 1344 is reviewed under the standard set forth in the Administrative Procedures Act, 5 U.S.C. § 701 et seq. We will “hold unlawful and set aside” the Corps’ permit to the Port only if we determine that the Corps’ “action, findings, and conclusions” are, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Shell Offshore v. Babbitt, 238 F.3d 622, 627 (5th Cir.2001). “We accord substantial weight” to the Corps’ interpretation of its permit granting authority under 33 U.S.C. § 1344 because “ ‘[a]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.’ ” Save Our Community v. USEPA, 971 F.2d 1155, 1163 (5th Cir.1992) (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985)); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983) (“This standard of review is highly deferential”); Sabine River Authority v. U.S. Dep’t of Interior, 951 F.2d 669, 678 (5th Cir.1992) (“[u]nder this highly deferential standard of review, a reviewing court has the ‘least latitude in finding grounds for reversal’ ”) (quoting North Buckhead Civic Assoc. v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990)). “We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.” Avoyelles, 715 F.2d at 905 (internal quotation marks and citation omitted). This deferential standard of review applies regardless of whether we are reviewing the Corps’ decision under the CWA or NEPA. 2. The Clean Water Act a. Determination of Wetlands Jurisdiction The centerpiece of appellants’ challenge to the dredge and fill permit is that the Corps erroneously determined the extent of its regulatory jurisdiction over the wetlands at the Bayport site. Appellants maintain the entire approximately 146 acres of wetlands at the Bayport site constitutes jurisdictional wetlands, substantially more than what the Corps concluded were present (the Corps found only 19.7 acres of jurisdictional wetlands, as well as 126.7 acres of non-jurisdictional wetlands and 1.56 acres of intertidal mud flats). Appellants contend that the Corps, by un-dercounting the acreage within its wetlands jurisdiction, corrupted the entire de-cisional process under the CWA. According to the ROD, the Corps, using its Wetlands Delineation Manual, initially determined on April 28, 1999, that there were 102 acres of wetlands at the Bayport site subject to its regulatory jurisdiction. The Corps concluded, however, that it needed to reevaluate its jurisdictional determination after the Supreme Court handed down Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 683-84, 148 L.Ed.2d 576 (2001) (holding that the “migratory bird rule,” upon which much of the Corps’ initial determination in this case had been predicated, overreached the Corps’ authority under the Clean Water Act). After resurveying Bayport, the Corps concluded that of the total some 146 acres of wetlands at the site only 19.7 acres came within its jurisdiction. The Corps then evaluated the Port’s permit application in light of this determination. We do not find it necessary to consider the several ways in which appellants challenge the Corps’ jurisdictional determination. In the ROD, the Corps responded point-by-point to substantive public questions about its environmental impact statements. One question concerned the possibility that using a particular survey technology called LIDAR would enlarge wetlands jurisdiction to 40 acres. The Corps replied that LIDAR is not an approved technique in the Wetlands Delineation Manual, but in any case: Even assuming that all wetlands and other aquatic areas on the Bayport site were jurisdictional, which is not the case, the mitigation provided by the [Port], involving over 1,130 acres of wetlands and other habitat, adequately compensates for environmental impacts as evidenced by the acceptance of this plan by the [other state and federal] resource agencies. As a result, even if the [Corps] were to conclude that all of the aquatic areas on the site, including all of the wetlands on the site, were subject to [Clean Water Act] jurisdiction, the [Port] has provided ample mitigation to compensate for the loss of all aquatic areas on the site that will be filled in or otherwise degraded by the project. Consequently, the [33 U.S.C. § 1344] permit that the [Corps] proposes to issue would still be fully justified in this case by the generous mitigation package offered by the [Port]. Therefore, issuance of the proposed permit would still be appropriate under all applicable laws and regulations even if all aquatic areas on the project site were subject to [Clean Water Act] jurisdiction. (emphasis added). Given that the Corps clearly would have made the same decision even if it used the wetlands determination that appellants advocate, we need not consider whether the Corps abused its discretion in concluding that it could exercise regulatory jurisdiction over only 19.7 acres of wetlands. Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir.1989) (“Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any other issues that might be presented.”). b. Practicable Alternatives The Corps may not issue a 33 U.S.C. § 1344 dredge and fill permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). Appellants contend that Shoal Point and Pelican Island, both of which are in southwestern Galveston Bay, are practicable alternatives to the Bayport site but, in an abuse of discretion, were not considered by the Corps. 40 C.F.R. § 230.10(a)(ii) (defining a practicable alternative as, inter alia, “[discharge of dredged or fill material at other locations in waters of the United States ... ”). They assert that, as a result of this oversight, the dredge and fill permit issued to the Port is unlawful under the CWA. While Shoal Point and Pelican Island are arguably plausible alternatives given that they are reasonably proximate to Bayport and may be environmentally acceptable, they must nevertheless be “practicable” under a detailed test. An alternative is practicable only if “it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity may be considered.” 40 C.F.R. § 230.10(a)(2). The Corps contends that neither Shoal Point nor Pelican Island is a “practicable alternative” under this definition for several reasons. First, Shoal Point was not “available.” On April 23, 2003, the Corps issued a permit to Texas City to build a six-berth cargo and cruise ship terminal at Shoal Point and thus Shoal Point was not available to the Port. Shoal Point was also unavailable for the additional reason that the Port undisputedly has no authority to condemn land outside of Harris County, Tex. WateR Code § 62.1071(c), and the absence of eminent domain power would present a serious impediment to assembling the many contiguous parcels at Shoal Point that the project would require. Furthermore, neither Shoal Point nor Pelican Island is a logistieally feasible alternative, and thus is not “practicable,” because the Port intends to fund its project with the proceeds of a 1999 Harris County bond issue. The proceeds of this bond issue, however, could not legally be spent outside of Harris County, which excludes both Shoal Point and Pelican Island because they are in Galveston County. In addition, building the new terminal at Shoal Point or Pelican Island would not comport with the Port’s “overall project purpose,” which was to further expand Harris County as one of the nation’s major ports. Situating the port at either Shoal Point or Pelican Island would frustrate the overall project purpose in the further sense that it would needlessly complicate, rather than simplify, the logistics of maritime commerce through Harris County because the shipping industry would have to move passengers and goods through locations that are comparatively remote from metropolitan Houston. Appellants only dispute two of these reasons. They contend that the absence of condemnation power and the 1999 bond issue do not ipso facto preclude acquiring land outside of Harris County because the Port could have financed the project at Shoal Point or Pelican Island with operating revenues. However, there is no evidence that the Port has any surplus operating revenues, much less that any such would be sufficient for that purpose, and the passage of the bond issue suggests otherwise. Even if we were to consider the Corps’ other reasons arbitrary and capricious, which we hold they are not, appellants would still not prevail under this objection because an unowned alternative site is a “practicable alternative” under 40 C.F.R. § 230.10(a)(2) only if the site “could reasonably be obtained.” A mere, unsupported theoretical possibility of acquiring the alternative site, which is all that appellants offer, does not constitute a showing that the alternative site is reasonably obtainable, much less that the Corps’ decision was arbitrary and capricious. Appellants have not, therefore, shown that the Corps’ decision not to consider Shoal Point and Pelican Island was an abuse of discretion. c. Deepening the Houston Ship Channel Appellants contend that the scope of shipping to and from the Bayport terminal will eventually lead to deepening the Houston Ship Channel from forty-five to fifty feet to accommodate the larger vessels that are expected to traverse the oceans in the future. They argue that deepening the channel will have an adverse effect on Galveston Bay’s freshwater ecosystems because it will alter the Bay’s salinity. Because, they allege, the Bayport project will lead to the deepening of the Houston Ship Channel and such deepening will “cause or contribute to significant degradation of the waters of the United States[,]” 40 C.F.R. § 230.10(c), the Corps should not have issued the Port its dredge and fill permit. 40 C.F.R. § 230.10(c) does not, however, require the Corps to consider the effects of the Bayport terminal itself once it begins operations. Instead, section 230.10(c) requires the Corps to consider whether “the discharge of dredged or fill material [pursuant to a 33 U.S.C. § 1344 permit] will cause or contribute to significant degradation of the waters of the United States” (emphasis added), not the effect of any completed project. See, e.g., 40 C.F.R. § 230.10(c)(3) (instructing the regulatory agency to consider “[sjignificantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity”) (emphasis added); see also 40 C.F.R. § 230.11(g) (defining a “cumulative impact” for the purposes of the CWA as “changes in an aquatic ecosystem that are attributable to the collective effect of a number of individual discharges of dredged or fill material”). The deepening of the Houston Ship Channel will not result from the discharge of dredged or fill material from the Bayport project. Rather, the deepening of the Houston Ship Channel, if it ever occurs, will be the result of a separate project (requiring Congressional approval) undertaken for that specific purpose. It was, therefore, not an abuse of discretion for the Corps to construe the CWA and its regulations as not requiring the Corps to consider any future deepening of the Houston Ship Channel as an adverse environmental consequence of issuing a dredge and fill permit to the Port. S. The National Environmental Policy Act Unlike the Clean Water Act, which has substantive environmental goals, 33 U.S.C. § 1251 (“The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”), the National Environmental Policy Act is strictly procedural. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989) (stating that “it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process”). “Indeed, NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects’ environmental consequences.” Sabine, 951 F.2d at 676. NEPA requires, among other things, the preparation of a comprehensive environmental impact statement whenever “proposals for legislation and other major Federal actions significantly affect[] the quality of the human environment ...” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502. Appellants contend that the Corps’ final environmental impact statement was procedurally defective under NEPA because (1) it did not properly elucidate the no-action alternative required by 40 C.F.R. § 1502.14, and (2) it did not treat the deepening of the Houston Ship Channel as a foreseeable environmental consequence of the Bayport project under 40 C.F.R. § 1502.16. Appellants also argue that the Corps’ ultimate decision to grant the dredge and fill permit to the Port was irrationally inconsistent with one of the conclusions set forth in the FEIS. a. The No-Action Alternative An essential feature of an EIS is its analysis of alternatives to the proposed action. This alternatives analysis, described by the relevant regulation as “the heart of the environmental impact statement^]” must “[rigorously explore and objectively evaluate all reasonable alternatives” to the proposed action, including the “no-action alternative” in which it is assumed that the project does not go forward. 40 C.F.R. § 1502.14. The importance of the alternatives analysis is reflected in our three-part test for evaluating an EIS, which requires, inter alia, determining “whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action and alternatives ...” Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir.2000) (internal quotation marks and citation omitted). NEPA requires only that the Corps consider alternatives relevant to the applicant’s goals and the Corps is not to define what those goals should be. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 198 (D.C.Cir.) cert. denied 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). In this case, the Corps identified seven alternative sites and configurations for the Bayport project. These alternatives were evaluated under twenty broad criteria and the Corps ultimately issued a permit to build the ten-berth terminal at Bayport. Appellants contend that the Corps’ no-action alternative, which was part of the FEIS issued on May 16, 2003, was flawed because it proceeded under the assumption that no new ship terminals would be built in Galveston Bay. Appellants argue that this assumption was irrational on its face because the Corps, just three weeks earlier on April 23, had granted a permit to Texas City to construct a six-berth terminal at Shoal Point on the southwestern tip of Galveston Bay. Appellants assert that an environmental impact statement this defective violates NEPA because it does not supply a basis for informed decisionmaking. The Corps responds that its Bayport FEIS was all but finished when the ROD and permit for the Texas City project were issued. In rejecting a request to prepare a supplemental EIS, the Corps decided not to treat the proposed Shoal Point project as “an existing condition” for the purposes of the Bayport FEIS because the mere issuance of a 33 U.S.C. § 1344 permit to Texas City did not make its six-berth project a fait accompli. The ROD noted that other factors controlled when, or even if, the Shoal Point terminal would ever be built. See Custer County Action Assn. v. Garvey, 256 F.3d 1024, 1040 (10th Cir.2001) (characterizing the no-action alternative as the “status quo” or the “current level of activity”). Rather than frame the not-yet-constructed Shoal Point terminal as an “existing condition,” the Corps treated it as a potential cumulative impact and evaluated the Port’s Bayport permit application in light of this assumption. While appellants may not agree with this methodology, it is neither arbitrary nor capricious and thus is entitled to deference. b. Deepening the Houston Ship Channel Appellants contend, as discussed previously, supra § 2(c), that the cargo ships of the future will be too large to use the Houston Ship Channel at its current depth of forty-five feet and will require future dredging to fifty feet. By being an otherwise potential destination for such vessels, appellants assert that the Bayport terminal, and by extension the 33 U.S.C. § 1344 permit to dredge and fill for that terminal, will in effect “cause” the channel to be deepened by five feet sometime in the future. Such deepening, they maintain, will have drastic environmental consequences because the deeper channel will raise the salinity of transitional ecosystems in Galveston Bay that are primarily freshwater. They charge that the Corps acted arbitrarily under NEPA in refusing to consider the deepening of the Houston Ship Channel as an indirect effect of granting the Port’s dredge and fill permit because such deepening is a reasonably foreseeable, not speculative, cumulative effect of the permit. First, before we examine whether deepening the Houston Ship Channel is too speculative to warrant consideration as a cumulative impact, there is meaningful doubt that deepening the channel can be an effect NEPA requires the Corps to consider at all. NEPA requires the Corps to take into account both the direct and indirect adverse environmental consequences of issuing a 33 U.S.C. § 1344 dredge and fill permit. 42 U.S.C. § 4332(C)(ii); 40 C.F.R. 1502.16(a) & (b). Indirect effects are those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b) (emphasis added). “[A] ‘but for’ causal relationship is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations.” DOT v. Pub. Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2215, 159 L.Ed.2d 60 (2004). Rather, a plaintiff mounting a NEPA challenge must establish that an alleged effect will ensue as a “proximate cause,” in the sense meant by tort law, of the proposed agency action. Id. (citing Prosser and Keeton for the proximate cause standard). However, it is doubtful that an environmental effect may be considered as proximately caused by the action of a particular federal regulator if that effect is directly caused by the action of another government entity over which the regulator has no control. In DOT v. Public Citizen, the Supreme Court held that the Department of Transportation had no duty under NEPA to prepare an environmental assessment of the effects of Mexican motor carriers using American highways because the authority to allow or prohibit Mexican motor carriers into the country rested solely with the President. 124 S.Ct. at 2214-15. The Court held, in other words, that pollution from Mexican motor carriers was not an “effect” that the DOT had to consider because no “action” by the DOT would “cause” Mexican motor carriers to enter the United States. It is undisputed that the Houston Ship Channel can only be deepened by an Act of Congress, not any decision by the Corps. If the rationale of Public Citizen is applicable, the deepening of the Houston Ship Channel, if it ever occurs, would not be treated as a 40 C.F.R. § 1508.8(b) “indirect effect” “caused” by the Corps’ decision to grant a 33 U.S.C. § 1344 dredge and fill permit to the Port. 124 S.Ct. at 2217 (“We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.”). Under such an analysis, the Corps, therefore, would not be obligated under NEPA to consider this possibility and did not abuse its discretion in declining to do so. We need not, and do not, ultimately determine whether such a Public Citizen analysis is appropriate in this context. That is so because in any event, even if we were to assume that deepening the Houston Ship Channel is not per se excluded as a matter of law (merely because requiring Congressional approval) from the sorts of cumulative environmental effects that the Corps ought to account for in its FEIS, there was no need to do so in this case because for a number of reasons it is impossible to know whether the channel will ever be deepened. The Corps’ obligation under NEPA to consider cumulative impacts is confined to impacts that are “reasonably foreseeable.” 40 C.F.R. § 1508.7. An impact is “reasonably foreseeable” if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992). “Reasonable foreseeability” does not include “highly speculative harms” that “distort[ ] the decisionmaking process” by emphasizing consequences beyond those of “greatest concern to the public and of greatest relevance to the agency’s decision.” Robertson, 109 S.Ct. at 1849 (internal quotation marks and citations omitted); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 1215-16, 55 L.Ed.2d 460 (1978) (“Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.”); Limerick Ecology Action v. NRC, 869 F.2d 719, 745 (3d Cir.1989). The Port properly cites several reasons why asserting that the channel will be deepened is pure speculation. First, the Corps expressly concluded that for the “foreseeable” future “almost” the only vessels using the Bayport terminal would be Panamax-class ships, the largest able to traverse the Panama Canal. Such vessels already operate safely in the Houston Ship Channel and would not require deepening it in the future. See note 7, supra. The Port also points to a report prepared for Texas City’s Shoal Point project indicating that there is no plausible economic justification for deepening the channel in the foreseeable future. In addition to the absence of any need to deepen the channel, it could only be done, as mentioned above, by Congress alone and there is no proposal for any such project. Finally, even if there were a proposal, history indicates that it takes decades to dredge the channel. The Port notes that the channel is only now being dredged to forty-five feet and this comes more than thirty years and three hundred million dollars after the deepening was initially proposed. Significantly, appellants themselves offer absolutely no concrete analysis with respect to the likelihood that the channel will need to be dredged within the Corps’ twenty-seven year planning horizon. Rather than explain how the Corps erroneously interpreted the evidence in the administrative record, they simply recite the platitude that mere uncertainty does not equal a lack of reasonable foreseeability. While this is true, indeed obvious, in a sense, such proposition does not mean that it was an abuse of discretion for the Corps to treat deepening the Houston Ship Channel as too speculative to warrant consideration as a cumulative impact of the Port’s dredge and fill permit. None of the cases appellants cite involves an undertaking remotely resembling in any of its implications an enterprise like deepening the Houston Ship Channel. It cannot be said that the Corps acted arbitrarily and capriciously under NEPA in reaching its decision. c. The Split Alternative Appellants also argue that it was arbitrary and capricious for the Corps to issue a dredge and fill permit to the Port for the construction of a ten-berth terminal at Bayport after granting a permit to Texas City for the construction of a six-berth terminal at Shoal Point because the Corps expressly rejected splitting the Bayport project’s seven cargo berths between the two sites. Appellants contend that if it was environmentally unacceptable to split the Bayport project into four cargo berths at Bayport and three cargo berths at Shoal Point, then it must, a fortiori, be environmentally unacceptable for there to be seven cargo berths at Bayport (plus three cruise ship berths) and six at Shoal Point. Appellants misunderstand the nature of the Corps’ responsibility under NEPA, which is not to produce any particular outcome but instead simply to produce informed decisionmaking with respect to the specific application before it. The Corps prepared its FEIS and ROD as part of the process of considering the Port’s application for a 33 U.S.C. § 1344 dredge and fill permit for the purpose of constructing a ten-berth terminal at Bayport. One of the alternatives developed by the Corps contemplated splitting the seven cargo berths between Bayport and Shoal Point. After careful deliberation, the Corps concluded that the inefficiencies of this four-three split rendered it inferior to siting all seven cargo berths at Bayport alone. Nothing in this specific conclusion, which pertained only to the Bayport permit application, implies that the Corps could not rationally approve two separate permits for two separate projects at Bay-port and Shoal Point. Appellants, therefore, have not shown that the Corps acted arbitrarily and capriciously. Conclusion For the foregoing reasons, the judgment of the district court is AFFIRMED. . As with the original and first amended complaints (respectively filed June 24 and August 15, 2003), the second amended complaint did not name the Port as a defendant. The Port is an intervenor, having been permitted on October 16, 2003, to intervene as a matter of right under Fed.R.Civ.P. 24(a). . The Clean Water Act requires a permit "for the discharge of dredged or fill material into the navigable waters” of the United States. 33 U.S.C. § 1344(a). “Waters of the United States” are those waters affecting interstate or international commerce, including "interstate wetlands.” 33 C.F.R. § 328.3(a)(2). The Corps does not have the authority to regulate isolated, intrastate waters. Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 683-84, 148 L.Ed.2d 576 (2001) (holding that the mere presence of migratory birds does not bring an otherwise isolated body of water under the regulatory jurisdiction of the Corps). . Appellants argue that the Corps’ determination of its wetlands jurisdiction is a legal question subject to de novo review. In particular, they argue that it was an error of law for the Corps to refuse to consider whether overland sheet flow should be used at all in determining whether certain waters are "waters of the United States.” We disagree with this characterization of the Corps' decision. The Corps did not categorically refuse to use overland sheet flow in its analysis. Rather, it determined that in this particular setting the overland sheet flow shown was as a factual, scientific matter inadequate to establish a sufficient hydrological nexus with interstate waters. In other words, unlike in In re Needham, 354 F.3d 340, 344 (5th Cir.2003), in which the appellant challenged the district court's construction of the Oil Pollution Act, 33 U.S.C. 2201 et seq., the jurisdictional issue here may be more properly considered as a question of fact concerning "the extent, not the existence, of agency jurisdiction.” Avoyelles, 715 F.2d 897, 906 (5th Cir.1983). The Corps generally has broad discretion to decide whether a sufficient hydrological nexus exists to bring wetlands under regulatory control: The wetlands determination is precisely the type of agency decision that is normally subject to limited judicial review. The EPA developed an extensive administrative record in making its decision; it collected reports from its own expert consultants, as well as from the parties. The determination itself, which requires an analysis of the types of vegetation, soil and water conditions that would indicate the existence of wetlands, is the kind of scientific decision normally accorded significant deference by the courts. De novo review would permit the courts to intrude into an area in which they have no particular competence. Id. (citations omitted); see also 40 C.F.R § 230.41(a)(2) (stating that determining the extent of wetlands is a task for specialists). .This determination followed a year and a half of study and was the result of the Port's request for an initial survey, filed well before the Port actually submitted its dredge and fill permit application, on the extent of the Corps’ wetlands jurisdiction. . Appellants also argue that the allegedly flawed jurisdictional determination resulted in inadequate compensatory mitigation. They contend in particular that the permit the Corps approved violated the longstanding Memorandum of Agreement (MOA) between it and the Environmental Protection Agency (EPA)concerning how to define proper compensatory mitigation. We reject this contention. Not only does the Corps disagree with this contention, which it has the discretion to do, the EPA itself was involved in the deci-sionmaking process and ultimately approved the Corps’ mitigation plan. Furthermore, the other three resource management agencies that took part in the decision — the United States Fish and Wildlife Service, the Texas Commission on Environmental Quality, and the Texas Parks and Wildlife Department'— also approved of the Corp’s permit plan. Moreover, in light of the unanimous approval of the Corps’ action by every environmental regulator involved in this case, it simply cannot be said that the Corps acted arbitrarily and capriciously in issuing the dredge and fill permit to the Port. . This was not a problem with respect to Pelican Island because the Port purchased Pelican Island in 2000. . We note that the evidence plainly supports the Corps’ finding that the Bayport terminal does not require deepening of the channel. The Corps determined that the current depth was more than “sufficient for operation of the Panamax vessels that are expected to be the most common vessels calling at the proposed facilities;” that "[t]he largest of these [Pana-max class] ships ... are able to operate in minimum water depths of 40 feet;” and that: “[f]or the foreseeable future, containerized cargo shipped through the Gulf of Mexico ports, including the Port of Houston, will be carried almost exclusively by Panamax class ships, which include the largest ships able to transit the Panama Canal.” These findings are not arbitrary or capricious or unsupported by substantial evidence. Of course, nothing in the challenged permit authorizes or purports to authorize any channel deepening. As all parties recognize, any deepening of the Houston Ship Channel requires Congressional authorization. . Furthermore, even if we were to credit appellants' construction of section 230.10, which is so capacious as to reach even the most attenuated effects, the Corps plainly has the discretion under the APA to adopt the narrower, and indeed far more plausible, view that the regulation reaches only the proximate environmental effects of the discharge itself. . We note that this three-part test is applied under the highly deferential standard of review set forth in the APA. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174-75 (5th Cir.2000) (stating that the APA governs and that an agency conclusion supported by evidence in the record warrants deference). The other two prongs of the test are (1) whether the environmental impact statement is sufficiently detailed to allow others to understand its reasoning; and (2) whether the alternatives are sufficiently well developed to allow a “reasoned choice.” Id. . 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 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. . In the FEIS for the Bayport project, the Corps considered the cumulative environmental consequences to Galveston Bay of permitting the Bayport project to go forward in light of other current projects in the Bay, including the current deepening of the Houston Ship Channel from 40 to 45 feet, which was authorized by Congress as part of the Water Resources Development Act of 1996, 33 U.S.C. § 2230 et seq. . Appellants try to distinguish Public Citizen on the ground that it involved whether the DOT had any obligation at all to prepare an environmental assessment whereas in this case there is no dispute that the Corps had to prepare an EIS. However, both Public Citizen and this case turn on whether the environmental consequences of another governmental entity's independent action should be treated as an "indirect effect" of a prior action by a different agency. . This is not to imply that the absence of a proposal for a related action means that it can automatically be excluded from NEPA consideration. See Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir.1985). . We note too that the Corps concluded that Bayport will be responsible for less than two percent of the expected growth in shipping in Galveston Bay over the next several decades. Given this conclusion, which appellants do not challenge, it cannot plausibly be said that the Bayport project is foreseeably going to ''cause” the Houston Ship Channel to be deepened. . We also note that Bayport is significantly closer to Houston than is Shoal Point. The Port's Bayport project was always intended to handle cargo destined for Houston (including that to thereafter be further transported over land out of Houston). That was not true to the same extent with respect to Texas City’s Shoal Point project.

Greenfield Mills, Inc. v. Macklin

RIPPLE, Circuit Judge. After employees of the Indiana Department of Natural Resources (“DNR”) drained a supply pond into the Fawn River, the plaintiffs, riparian landowners, brought this action against DNR employees, David Clary, Tom Meyer, Neil Ledet and Gary Armstrong, in their individual capacities, and against the Director of the DNR in his official capacity. The plaintiffs alleged that these defendants had violated the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., and also had violated their rights under the Takings and Due Process Clauses of the Constitution of the United States. The parties filed cross-motions for summary judgment. The district court granted the defendants’ motion for summary judgment on all claims. For the reasons set forth in the following opinion, we reverse the judgment of the district court with respect to the CWA claim and remand for further proceedings. With respect to the takings and due process claims, we affirm the judgment of the district court. I BACKGROUND A. Factual Background The plaintiffs are riparian landowners along a five-mile portion of the Fawn River that begins at Orland Dam and ends at Greenfield Millpond. The defendants are an official of the DNR and employees of the DNR who work at the Fawn River State Fish Hatchery (“Hatchery”) located in Orland, Indiana. The Fawn River runs through the Hatchery property. As it flows near the Hatchery’s main building, the river has been dammed to form a 1.75 acre supply pond. This supply pond feeds by gravity the Hatchery’s fish rearing ponds. When the main flow control gates on the dam are opened, the pond water flows from the supply pond down the Fawn River and eventually to Greenfield Millpond. A bypass channel upstream of the supply pond is used to divert the Fawn River before it reaches the supply pond. The Fawn River, as it existed below the supply pond prior to May 18, 1998, was a clean, clear body of water. The river had a gravel bed and was used for swimming, fishing, canoeing and other recreational activities. It also was home to various plant and aquatic animal habitats. See R.4, Ex.5. In 1993, there was discussion in the Town of Orland regarding a “proposed dike ... and mill pond dredging adjacent to the town park.” R.4, Ex.12. “The project [was] being proposed to alleviate flooding of the Fawn River into the town park.” Id. In a letter from a state senator to the Orland Town Board, the senator noted the problem with the supply pond and stated that “the Fawn River is a highly protected environmental river and it may be difficult to make any kind of repairs or dredging in that area.” R.4, Ex.14. The DNR supported the project, stating in a June 18, 1993 letter that the supply pond had built up silt for more than 12 years, and, as a result, it was not navigable “even in a canoe.” R.4, Ex.12. The DNR stated also that “[ajquatic vegetation ha[d] taken over the supply pond” and that the DNR would “submit[ ] a work plan this summer to control the vegetation using approved chemicals.” Id. In that same letter, the DNR noted that “[s]uch a work plan will tie in nicely with the town’s project.” Id. In 1994 and 1995, the DNR applied chemicals, destroying much of the plant life in the supply pond. After having destroyed the vegetation, the DNR noted that the pond was “now navigable, by canoe, for the first time in over a decade.” R.4, Ex.10. In 1996, defendants David Clary, the Property Manager for the Hatchery, and Tom Meyer, the Assistant Property Manager for the Hatchery, noticed a problem with the main flow control structure of the dam. The flow control structure consisted of six separate gates. The gates were made of horizontal wooden slats that were stacked in two rows and slotted into four vertical metal I-beams. Some of the I-beams appeared to be rusting. On March 31, 1997, Mr. Clary consulted a local welder, who observed that repairs to the I-beams were needed. Mr. Clary sent a project proposal and budget for the repairs to Gary Armstrong, Hatcheries Supervisor, on April 16, 1997. This proposal specifically made reference to draining the supply pond in order to complete the repair, but stated that the repair “would have to be completed during a time of low water flow.” R.93, Ex.21 at 2. Also, in the memo attached to this proposal, Mr. Clary asked: “Will we need to get a permit for the dam repair work?” Id. at 1. When Mr. Clary was asked during his deposition whether he ever had received an answer to this question, he replied: “I don’t think we ever received an answer on that.... I have no documentation of an answer from [Gary Armstrong].” R.93, Ex.16 at 64. Funding approval for the repairs was obtained on October 23,1997. Later, on March 12, 1998, Mr. Clary discovered a problem with the river intake plumbing, specifically, the pump was not holding its prime. The pump is used to run water into the Hatchery and rearing ponds and is critical to Hatchery operations. After trying various small repairs, Mr. Clary and Mr. Meyer concluded that the plumbing in the river inlet structure needed to be exposed in order to make the plumbing repairs. The Hatchery needed the pump system to be working properly by June 1, 1998, for the Walleye harvesting. On May 18, 1998, Mr. Meyer and Mr. Clary decided to draw-down the water in the supply pond to make the plumbing repairs, to allow visual inspection of the gates and to have a test draw-down for the future repairs that were to be done to the gates. Mr. Armstrong, their supervisor, was aware of the plans to open the dam and lower the supply pond. However, Mr. Clary stated in his deposition that initially they had not intended to drain fully the supply pond. Mr. Clary also said that they had not intended to “fully inspect the dam gates down to the bottom.” R.93, Ex.16 at 23. In fact, Mr. Clary stated that, in determining how low to draw down the supply pond, their “intentions were only to expose the piping.” Id. at 67. At approximately 8:30 a.m., Mr. Clary and Mr. Meyer began the draw-down process by raising the upper three gates of the main flow control structure. After waiting for several minutes, the water level in the supply pond stabilized, although there was still a considerable amount of water flowing over the top of the three lower gates. Mr. Clary and Mr. Meyer then proceeded to open one of the three bottom gates. After several attempts and much difficulty because of the water rushing over the top of the gate, they succeeded in raising the gate a few inches. They then continued to raise the gate incrementally until the bottom of the gate was above the level of the water exiting the supply pond. By 11:00 a.m., the supply pond was drained to the point that the pipes and plumbing work were exposed and all that remained of the pond was a meandering channel of water cut into the floor of the supply pond flowing toward the open gates. Leaving the gates open, Mr. Clary and Mr. Meyer took a lunch break, made a visit to a rock dam upstream of the supply pond, traveled to the east unit of the hatchery to observe water levels, worked on a list of materials needed for the plumbing repairs and then traveled separately to purchase repair parts and plumbing supplies. Mr. Meyer was first to return to the dam from his errand and was met at approximately 2:00 p.m. by defendant Mr. Ledet, a DNR Fisheries Biologist. Standing next to the open gate, Mr. Ledet noticed that “the water level in the supply pond had been lowered to a distinct channel exposing the silt-covered bottom.... Water flowing through this channel was picking up silt and transporting it through the flow control gate.” R.80 ¶ 5. Mr. Meyer testified that Mr. Ledet remarked to him that the water flowing through the gate “looked awful damn muddy.” R.93, Ex.l at 200. The two men were standing next to the open gate discussing the project when plaintiff Gene Lewis arrived; he was visibly upset. Mr. Lewis pointed out that muck and sediment were being flushed out of the supply pond, through the open dam and into the river, and he requested that the gates to the dam immediately be closed. The men refused to comply with Mr. Lewis’ request, and, shortly thereafter, Mr. Ledet returned to his office located on Hatchery property. Larry Koza, a DNR assistant Fisheries Biologist, who also maintained an office on Hatchery property, stated in his deposition that “when I looked out and I saw the water, it was ... black. It ... apparently had a high silt load in it from eroding a channel into the bottom” of the supply pond. R.93, Ex.23 at 45. Concerned about the sediment being flushed into the river and the adverse effect it could have on the fish populations downstream, Koza and Mr. Ledet decided to drive together upstream to the water control structure of the bypass channel. Upon arrival, the men opened completely the partially open water control structure “to divert as much clean water into the river below the dam as possible, bypassing the hatchery [supply pond].” R.80 ¶ 7. Meanwhile, around 2:15 p.m., Mr. Clary returned from his errand to the site of the dam. Simultaneously, Attorney Neal Lewis, son of Gene Lewis and counsel for the plaintiffs, arrived on the scene. Attorney Lewis demanded that the gate be shut immediately, but Mr. Meyer and Mr. Clary informed him that they were working on some repairs to the pump and would shut the gate as soon as the repairs were finished. However, after a short discussion concerning the day’s events, Mr. Meyer and Mr. Clary decided to shut the gate without making the repairs. Around 3:00 p.m., Mr. Meyer informed Mr. Lewis that the bottom gate had just been lowered. Shortly thereafter the three top gates were also lowered. By 4:00 p.m., most of the supply pond had been refilled. See R.76 ¶ 12; see also R.77 ¶¶ 18-19. The record contains extensive evidence regarding the appearance and substance of the water that flowed through the bottom gate on May 18, 1998. Mr. Clary stated in his deposition that the water coming out of the bottom gate was “somewhat muddy,” R.84, Ex.2 at 43; Mr. Meyer stated in his deposition that the water “was a muddy color immediately upon raising the bottom gate” and that “it was muddy throughout that draining operation, muddy colored,” R.84, Ex.3 at 139; and Mr. Ledet stated in his deposition that the water coming through the dam “was very dark. It had picked up a lot of — or whatever a lot is — it had picked up, you know, bottom muck, sediment material,” R.84, Ex.4 at 61. Similarly, the plaintiffs submitted extensive evidence detailing the effects of the released sediment on the Fawn River. Gene Lewis testified that he personally witnessed mud flowing through the open dam. He stated: While the DNR was cutting out the bottom of their impoundment by having opened fully their dam structure, I entered the river immediately below the spillway structure of the DNR dam where I was standing in a semi-solid flow of mud which had the consistency of loose cooked oatmeal and looked like chocolate-brown pudding. I could feel this semi-solid flow of mud to approximately my knees — about 2 feet deep. On top of this flowing river of mud was a layer of very murky water in a liquid state. R.84, Ex.10 at ¶ 8. Mr. Lewis also presented photographs of himself standing in the mud below the dam. Specifically the photographs show him holding up black mud that was flowing from Ms feet to his knees. See R.84, Ex.l0A. Mr. Lewis also took photographs of sections of the supply pond after the channel had been cut through it; these photographs show the water flowing through the channel with the exposed black-mud floor on both sides. See id. He later had photographs taken of himself standing in and measuring the mud deposits in the Fawn River after the opening of the dam; these deposits ranged in depth from a few inches to two feet. See R.84, Ex.lOC. Plaintiffs also submitted expert testimony by professors at Indiana University who performed in-depth analyses of the river and the mud deposits therein after the dam had been opened. Dr. Michael Zaleha’s study demonstrated that the sediment in the river above the dam is different from the mud that now exists in the river below it and that the physical and chemical characteristics of the mud deposits in the Fawn River are not typical of river muds; he also opined that these deposits were caused by a rapid flow of a water and mud mixture (40%-80% concentrated) resulting from the opening of the dam. He further noted that he personally had observed “the large volume of mud deposits” which extend for several miles now on the Fawn River. R.84, Ex.7 at 15. John Gasper, a professional engineer, performed studies to determine the amount of mud deposited by the flow into the Fawn River. He concluded that “approximately one hundred thousand cubic yards of unconsolidated material were discharged and deposited into the lower reaches of the Fawn River”; this amount was generated from between 10,000 and 33,000 cubic yards of consolidated material that was dredged from the supply pond. R.84, Ex.8 ¶ 6. Gasper stated that, had the vegetation not been killed in 1994 and 1995, the amount of sediment cut out of the supply pond would have been significantly less. He also stated that these deposits have elevated the bottom of Fawn River, are impairing the flow and circulation of those waters and are reducing the pre-event reach of the waters. In addition, certain areas of the channel that were once flowing are currently stagnant and other areas of quiet waters have been significantly filled with mud. R.84, Ex.8 ¶ 7. Dr. Daniel Willard, a professor of environmental sciences, reached a similar conclusion after conducting a study on the effects of the draw-down that occurred on • May 18,1998. Dr. Willard stated: The volume of reservoir sediments released from [the supply pond] is estimated to have occupied a channel of 20 feet wide, 5,000 feet long and average 5 feet thick (8 feet near the dam and 2 feet 5,000 feet upstream from the dam). This represents a volume of 500,000 cubic feet of reservoir sediment. R.84, Ex.9B at 14. Dr. Willard also stated: I have further observed the condition of the small lake at Greenfield Mills, Indiana prior to May 18,1998, and it has under gone a substantial and extraordinary transformation since the events- of May 18, 1998. What was once a mostly [ ] open water shallow lake environment is now an emergent wetland environment dominated by marshy conditions as a result of massive deposits of sedimentation from the events of May 18, 1998. R.84, Ex.9 ¶ 12. Dr. Willard’s report also contains extensive research into the adverse effects of the mud on the Fawn River plant and animal life. Specifically, the report contains his own eyewitness account of the fish kill that occurred as a result of the release of mud into the river: At several points along the way large numbers of dead fishes were laid out on the bank.... These fishes included many species with notably large Northern and Walleye, plus Smallmouth, suckers, carp, and a variety of other fishes. Several of these fishes showed gills covered with muck on examination. I saw several, hundred, dead fishes total. Id. ¶ 21. The defendants do not dispute with affidavits or other evidence any of the expert or lay testimony brought by the plaintiffs showing that massive amounts of sediment were deposited into the river or onto the plaintiffs’ property. Mr. Meyer stated in his deposition that he and Mr. Clary made no repairs to the plumbing on May 18, 1998. He also stated that the repairs on the plumbing that had been planned for May 18, 1998, were actually accomplished a few weeks later. The actual repairs were accomplished without drawing-down, lowering or draining the supply pond. Mr. Clary noted that a DNR diver completed the plumbing repair in less than three hours. See R.93, Ex.16 at 21. With respect to the repair to the dam gates, DNR Structural Engineer Larry Wayland suggested three different alternative repair scenarios, none of which required a rapid draining of the supply pond. Two alternatives involved using a coffer dam to retain the water in the pond while the repairs were being performed; these options did not require the supply pond to be drained at all. Indeed, the repair eventually was accomplished using such a device. According to the defendants, the only repair work that Mr. Meyer and Mr. Clary accomplished on May 18, 1998, was attaching a chain to two of the lower gates. Mr. Meyer admitted, however, that this attachment was not really a “repair”; he explained that the action “was kind of an afterthought” taken as a result of the difficulty they experienced raising the three lower gates. R.93, Ex.l at 221. B. District Court Proceedings The plaintiffs brought this action against Mr. Clary, Mr. Meyer, Mr. Ledet and Mr. Armstrong, in their individual capacities, and against the Director of the DNR in his official capacity. They alleged that the defendants had violated § 402 and § 404 of the CWA, 33 U.S.C. §§ 1342 and 1344, respectively, by failing to obtain a permit prior to draining the supply pond. The plaintiffs also pursued two constitutional claims: They claimed that the deposit of mud on their property constituted an illegal taking by the State and that draining the supply pond without prior notice and hearing violated their due process rights. The defendants moved for summary judgment on all of these claims, and the plaintiffs filed a cross-motion for summary judgment on the § 404 claim. The district court granted summary judgment to the defendants on all grounds and denied the plaintiffs’ cross-motion for summary judgment. Turning first to the § 404 claim, the district court determined that the hydraulic dredging or sluicing that occurred on May 18, 1998, came within the prohibition of dredging without a permit. However, it further determined that the dredging fell within the maintenance exception to the permit requirement set forth in 33 U.S.C. § 1344(f)(1)(b). In doing so, the court rejected the plaintiffs’ argument that the defendants’ actions could not constitute maintenance under the applicable regulation because, according to the regulation, “maintenance does not include any modification that changes the character, scope, or size of the original fill design .33 C.F.R. § 323.4(a)(2). According to the district court, “original fill design” referred to the supply pond, and there was no evidence that the size or depth of the supply pond was altered by the draw-down. The district court also determined that the defendants’ actions did not fall within the “recapture” provision, 33 U.S.C. § 1344(f)(2). That section provides: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). The district court held that the purpose of the May 18, 1998 draw-down was to perform maintenance and not to “ ‘bring[ ] an area of the navigable waters into a use to which it was not previously subject.’ ” R.131 at 22-23 (quoting § 1344(f)(2)). Consequently, the defendants’ actions were not “recaptured” by § 1344(f)(2), and a permit was not required. With respect to the § 402 permit claim, the district court found that the sediments dredged from the supply pond were pollutants under recent CWA case law. However, the court stated, the plaintiffs’ § 402 claim failed nonetheless because “[a]ny ‘churning’ or movement of the soil or sediment in this case was entirely incidental to a maintenance activity that had no purpose of excavating and redepositing soil downstream.” R.131 at 29. The court then turned to the constitutional claims. With respect to the takings claim, the district court acknowledged that a physical invasion usually constitutes a taking. Nevertheless, the district court held that the plaintiffs’ claim should be dismissed because the plaintiffs had not brought an action in state court for inverse condemnation and, therefore, had failed to exhaust their state remedies as required by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). With respect to the procedural due process claim, the district court held that the plaintiffs had failed to come forward with any evidence that the defendants had the requisite intent to deprive the plaintiffs of their property — a requirement of a due process violation. Alternatively, the district court stated that, “even if the acts alleged were intentional as Plaintiffs allege, this does not violate due process so long as adequate state post-deprivation remedies are available,” and “Plaintiffs[’] brief altogether fail[ed] to address why state post-deprivation remedies were inadequate nor d[id] they set forth any legal analysis on this point.” R.131 at 36. II DISCUSSION A. Standard of Review “We review the grant of summary judgment de novo.” Harley-Davidson Motor Co. v. PoiverSports, Inc., 319 F.3d 973, 980 (7th Cir.2003). Summary judgment is appropriate if, viewing the facts 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. See id. B. The Clean Water Act Statutory Scheme The CWA makes the “discharge of any pollutant” into navigable waters, by any person unlawful, absent compliance with specific provisions of the Act. See 33 U.S.C. §§ 1311(a), 1362(7), 1362(12). Two of those provisions are § 1342 (§ 402) and § 1344 (§ 404), which create permitting systems for the discharge of pollutants. Generally, in order to avoid liability under the CWA, a defendant who wishes to discharge a pollutant must first obtain a permit either under § 1344 (a § 404 permit) for the discharge of dredged or fill material or under § 1342 (a § 402 permit) for other pollutants. Because the plaintiffs allege that the defendants discharged dredged materials into the Fawn River, the question of whether a permit is required is answered by reference to § 404. 1. Section 404 Permit Requirement The CWA generally prohibits “the discharge of any pollutant by any person” absent compliance with one of the permitting schemes set forth in the Act. 33 U.S.C. § 1311(a). The Act defines “discharge of pollutant[s]” to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). Under the CWA, pollutant includes “dredged spoil, solid waste, ... biological materials, ... rock, sand .... ” 33 U.S.C. § 1362(6). Here, the plaintiffs maintain that the DNR employees made an addition of “dredged spoil,” namely the materials emptied from the supply pond, into the Fawn River from a point source, the Orland Dam. The defendants argue on appeal that there was no “addition” of dredged spoil to the Fawn River because the supply pond and the Fawn River constitute the same body of water. In support of their position, they point to National Wildlife Federation v. Gorsuch, 693 F.2d 156, 174-75 (D.C.Cir.1982), and National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6th Cir.1988), which hold that the discharge of pollutants from one body of water to a contiguous one is not an “addition” because it does not add a pollutant from the outside world. More recent cases, however, have undercut severely the holdings of Gorsuch and Consumers Poiver. For example, the Fourth Circuit in United States v. Deaton, 209 F.3d 331 (4th Cir.2000), held that “sidecasting” (digging dirt from a ditch and easting it onto the contiguous wetland) was still an “addition” of a pollutant even though nothing was “added” from the outside world. The court stated: Once it was removed, that material became “dredged spoil,” a statutory pollutant and a type of material that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is. that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before. Id. at 335; see also Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 923-24 & n. 43 (5th Cir.1983) (noting that term “addition” may reasonably be understood to include “redeposit,” that “ ‘dredged’ material is by definition material that comes from the water itself,” and that “[a] requirement that all pollutants must come from outside sources would effectively remove the dredge-and-fill provision from the statute”); Borden Ranch P’ship v. United States Army Corps of Eng’rs, 261 F.3d 810, 814 (9th Cir.2001). The rationale for limiting the holdings of Gorsuch and Consumers Power to the very circumscribed facts upon which they were based and to employ a broader definition of addition was well stated by the Second Circuit in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 489-94 (2d Cir.2001). The Second Circuit noted that the decisions of the courts in Gorsuch and Consumers Power were based on deference to the EPA’s interpretation of “addition.” The Second Circuit continued: If the EPA’s position had been adopted in a rulemaking or other formal proceeding, deference of the sort applied by the Gorsuch and Consumers Power courts might be appropriate. Instead, the EPA’s position is based on a series of informal policy statements made and consistent litigation positions taken by the EPA over the years, primarily in the 1970s and 1980s. Recent Supreme Court cases emphasize that such agency statements do not deserve broad deference of the sort accorded by the Gor-such and Consumers Power courts. See United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Id. at 490 (parallel citations omitted). The court then held that the narrow definition of addition simply could not be applied to the facts before it: The present case, however, strains past the breaking point the assumption of “sameness” made by the Gorsuch and Consumers Power courts. Here, water is artificially diverted from its natural course and travels several miles from the Reservoir through Sandaken Tunnel to Esopus Creek, a body of water utterly unrelated in any relevant sense to the Schoharie Reservoir and its watershed .... When the water and the suspended sediment therein passes from the Tunnel into the Creek, an “addition” of a “pollutant” from a “point source” has been made to a “navigable water,” and terms of the statute are satisfied. Id. at 492. Unlike the position espoused by the EPA in Gorsuch and Consumers Power, here the EPA, participating at the court’s invitation as an amicus curiae, has urged upon this court the broader definition of “addition” employed by the courts in the more recent § 404 cases. See Amicus Br. at 5 (stating that “the courts of appeals have consistently recognized that materials that have been scooped up and then redeposited in the same waterbody can result in a discharge of a pollutant” and citing, inter alia, Avoyelles Sportsmen’s League and Borden Ranch). The EPA’s position, which follows the holdings of recent circuit cases, is persuasive for several reasons. First, such a reading is compatible with the purpose of the CWA to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Second, it is logical to believe that soil and vegetation removed from one part of a wetland or waterway and deposited in another could disturb the ecological balance of the affected areas— both the area from which the material was removed and the area on which the material was deposited. Finally, we agree with our colleagues on the Fifth Circuit that excluding such dredged materials from the concept of “addition” “would effectively remove the dredge-and-fill provision from the statute.” Avoyelles, 715 F.2d at 924 n. 43. We therefore follow the interpretation of the amici and of our sister circuits and hold that the discharge of dredged material, such as that removed from the supply pond, into a contiguous body of water or wetland, here the Fawn River, constitutes an “addition” of dredged spoil under the statute. The defendants’ actions of May 18, 1998, therefore, constituted an addition of dredged spoil into the Fawn River and were subject to the permit requirement of § 404. In order to escape liability under the CWA, the defendants therefore must establish that their actions fall into one of the narrow exemptions to the permit requirements. 2. Maintenance Exception Section 1344(f)(1) provides an exemption to the federal permit requirements “for narrowly defined activities specifically identified in paragraphs A-F that cause little or no adverse effects either individually or cumulatively.” Envtl. Policy Div. of the Cong. Research Serv. for the Senate Comm. on Envtl. and Pub. Works, 95th Cong., 3 A Legislative History of the Clean Water Act of 1977, 420 (Comm. Print 1978) (hereinafter “Legislative History”). For these specified activities, a discharge of dredged or fill material “is not prohibited by or otherwise subject to regulation under this section or section 1311(a) or 1342 of this title [except 1317 of the CWA].” 33 U.S.C. § 1344(f)(1). In order to be exempt from the § 404 permit requirement, however, a party must show not only that it is exempt under one of the provisions in § 1344(f)(1), it also must show that its activities do not fall within the “recapture” provision, § 1344(f)(2). “Read together the two parts of Section 404(f) provide a narrow exemption for ... activities that have little or no adverse effect on the waters of the U.S.” United States v. Brace, 41 F.3d 117, 124 (3d Cir.1994). The defendants bear the burden of establishing both that they qualify for one of the exemptions of § 1344(f)(1) and that their actions are not recaptured by § 1344(f)(2). Turning first to the exemptions, the defendants maintain that their actions fall within the maintenance exemption set forth at § 1344(f)(1)(B). Paragraph (B) of § 1344(f)(1) exempts the discharge of dredged or fill material “for the purpose of maintenance, including emergency reeon-struction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures.” 33 U.S.C. § 1344(f)(1)(B). The regulations provide that “[m]aintenance does not include any modification that changes the character, scope, or size of the original fill design.” 33 C.F.R. § 323.4(a)(2). We have construed § 1344(f)(1) narrowly because “Congress intended that Section 1344(f)(1) exempt from the permit process only ‘narrowly defined activities ... that cause little or no adverse effects either individually or cumulatively [and which do not] convert more extensive areas of water into dry land or impede circulation or reduce the reach and size of the water body.’ ” United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.1985) (quoting 3 Legislative History 420). The plaintiffs contend that the defendants do not fall within the exemption under § 1344(f)(1) for the following reasons: (1) There is a genuine issue of material fact regarding whether the defendant’s actual purpose in draining the supply pond was “maintenance” or merely a pretext for dredging the pond without a permit; (2) The exemption does not include dredging that was not reasonably necessary or at least proportional to the maintenance performed; and (3) The dredging of the pond was not maintenance because it impermis-sibly modified “the character, scope, or size of the original fill design.” 33 C.F.R. § 323.4(a)(2). We consider each of these in turn. a. pretext The plaintiffs first argue that the district court erred in granting summary judgment to the defendants because there is a genuine issue of material fact with respect to whether the defendants actually raised the gate to perform maintenance on the dam or whether the “maintenance” was just a pretext to dredge the pond without a permit. In determining the “purpose” of the defendants’ actions, “reviewing courts have consistently looked beyond the stated or subjective intentions and determined the effect or ‘objective’ purpose of the activity conducted.” United States v. Sargent County Water Res., 876 F.Supp. 1090, 1101 (D.N.D.1994) (“Sargent County II”) (reviewing cases and noting that in those cases “[although each of the defendants stated a purpose facially worthy of an exemption, it was clear by their actions that the only ‘purpose’ each had was to circumvent the Act”). In Sargent County II, for example, the county’s stated purpose was to remove accumulated silt from an existing ditch. In evaluating whether that stated purpose was the county’s true purpose, the court observed: “Rather than approach the project haphazardly, it hired an engineer to determine the original depth, and it hired and directed a reputable contractor to perform clean-out maintenance work only.... The court has previously noted that the stated purpose [of maintenance] was confirmed by the actions of those who performed work on the drain.” Id. (emphasis added). The court found that the defendants’ activities of removing silt from a ditch fell within the § 1344(f)(1) exemption for “maintenance of drainage ditches,” noting that the defendants’ actions “were consistent with the stated intention of maintaining the drain.” Id. at 1099. Based on the record before us, we cannot reach the same conclusion with respect to the defendants’ actions. The defendants were slow to repair, performed quite “haphazardly,” and let the supply pond drain substantially farther (and for much longer) than was needed to do the repairs. By 11:00 a.m. on May 18, 1998, the supply pond was drained to a level where the pump was exposed and the lower gate was open such that the defendants could inspect the gate. However, the defendants allowed the gate to remain open for four more hours; during this time, the defendants had lunch, purchased supplies and examined other areas of the hatchery. At the end of the day, the defendants had not repaired, or even attempted to repair, the pump. The defendants also have not brought forth evidence explaining the importance or necessity of a test draw-down to the subsequent repair of the gates. Finally, the plaintiffs submitted evidence that the DNR had expressed an interest in dredging the supply pond in the years prior to the draw-down and had been informed that obtaining a permit for this action would be difficult. Viewing the evidence in the light most favorable to the plaintiffs, and primarily noting the length of time during which the bottom gate was open and the pump was exposed without any attempt at making repairs, we hold that the plaintiffs have brought forth sufficient evidence to create a genuine issue of material fact with respect to the defendants’ purpose in drawing down the water in the supply pond. On the basis of the record before us, a reasonable finder of fact could conclude that the purpose of drawing down the water in the supply pond was not to perform maintenance on either the pump or the dam, but rather was to dredge the supply pond without a permit. b. necessity of dredging to maintenance The plaintiffs argue that, in order for a dredging activity to fall within the maintenance exception, the dredging also must be reasonably necessary to the proposed maintenance. The EPA and the Army Corps of Engineers, as well, construe the maintenance exemption to carry a requirement of reasonable necessity. They state that the DNR’s activities are exempt as maintenance if the “draw-down and discharge of sediment was necessary to perform those maintenance functions.” Ami-cus Br. at 7. For the following reasons, we believe that the amici’s position — that the maintenance exemption carries with it a requirement that discharge of dredged material be reasonably necessary to the maintenance — is persuasive. We note initially that a requirement of reasonable necessity or proportionality comports with the legislative history of the statute. Throughout the legislative history, Congress repeatedly stressed that the § 1344(f)(1) exemptions were intended to cover only a very narrow class of exemptions for activities “that cause little or no adverse effects either individually or cumulatively.” 3 Legislative History 420. Certainly there would be no guarantee against more than de minimus adverse effects on the environment if the discharge of dredged material was not required to be reasonably necessary or otherwise proportional to the maintenance performed. Additionally, several courts have spoken of § 1344(f)(1) exemptions as containing a reasonableness requirement. In Sargent County II, 876 F.Supp. at 1098, the district court determined that the defendants’ activities of removing silt from a ditch fell within the § 1344(f)(1) exemption for “maintenance of drainage ditches,” particularly where “the individuals involved in the clean-out of Drain 11 were competent and acted responsibly in carrying out their assigned tasks.” Id. (emphasis added). Additionally, in United States v. Zanger, 767 F.Supp. 1030, 1035 (N.D.Cal.1991), the court found that defendants who graded, filled and changed the bottom elevation of a stream could not be exempt under the maintenance exemption because the exemption “is limited to ‘maintenance’ of certain ‘structures,’ ” and there were no structures involved. The court further explained that “even if there had been [structures], defendants’ filling goes far beyond any reasonable definition of maintenance or repair.” Id. (emphasis added). Accordingly, we agree with the plaintiffs and amici that, in light of the legislative history, existing case law and the rule that the § 1344(f)(1) exemptions must be narrowly construed, see Huebner, 752 F.2d at 1240-41, the maintenance exemption should be construed so that only dredging that is reasonably necessary to the proposed maintenance is exempt from the permit requirement. Applying this standard to the case at hand, we believe that the plaintiffs have brought forth sufficient evidence to permit the trier of fact to conclude that the dredging of the pond was not reasonably necessary to either the maintenance of the pump or the alleged inspection of the gates. DNR engineers explained that the repairs could have been performed without a rapid draw-down, and in fact, both of the alleged repairs were later performed without any draw-down of the pond. Moreover, even if the repairs warranted a rapid draw-down and dredging of the pond, the pond was drained sufficiently to expose the plumbing by 11:00 a.m., and the bottom gate was fully open for inspection by the same time. However, the defendants kept the gates open, allowed the pond to continue “dredging” until 3:00 p.m. and never commenced the necessary repairs. Looking at the evidence in the light most favorable to the plaintiffs, we cannot say that the dredging of the pond—particularly from 11:00 a.m. to 3:00 p.m.'—was, as a matter of law, reasonably necessary to the proposed maintenance. c. character, scope, size of the original fill design The regulations provide that “[m]aintenance does not include any modification that changes the character, scope, or size of the original fill design.” 33 C.F.R. § 323.4(a)(2). The district court determined that the defendants’ activities did not change the original fill design of the supply pond, and, therefore, the regulation was not implicated. The district court, the parties and amici propose three alternative definitions of “original fill design.” The plaintiffs argue that “original fill design” refers to the area where the dredged material is deposited, here the Fawn River. The defendants argue, and the district court held, that original fill design is comprised of the dam and the supply pond behind the dam. Am-ici argue that original fill design “refers to the manmade structures that are the subject of the exemption (e.g. dikes, dams, levees) rather than a natural watercourse such as the Fawn River.” Amicus Br. at 8 n. 7. We are persuaded that the definition of “original fill design” suggested by the ami-ci best comports with the language of the statutory exemption itself, which speaks to the maintenance of “structures.” 83 U.S.C. § 1344(f)(1). The only “structure” involved in the proposed maintenance is the dam; neither the supply pond nor the Fawn River is a man-made “structure” similar to those listed in the statute. Our decision to adopt the amici’s position is consistent with United States v. Sargent County, 876 F.Supp. 1081, 1087 (D.N.D.1992) (“Sargent County I ”), one of the only decisions to address the issue. Sargent County I concerned the application of an analogous maintenance exemption for drainage ditches, § 1344(f)(1)(C). In that case, the court defined original fill design as “1) the depth and width of the ditch as it was originally constructed, plus 2) any improvements made to any segments of the ditch prior to the CWA’s jurisdiction over wetlands in 1975.” Id. (emphasis added). The drainage ditch in Sargent County was man-made, constructed in 1917, and cut through three sloughs before draining into a river. See Sargent County II, 876 F.Supp. at 1092. In holding that maintenance could not include deepening or widening the ditch, the court in Sargent County I looked only for changes in the man-made ditch; the court did not examine whether the activities deepened or widened the sloughs or river or other natural watercourses affected by the drainage ditch. Therefore, because it follows the statutory language and comports with existing case law, we find persuasive the position of the amici with respect to the definition of “fill design.” Applying this definition to the facts before us, we must conclude that, in drawing down the supply pond, the DNR employees did not “change[] the character, scope, or size of the original fill design” in violation of 33 C.F.R. § 323.4(2). There is no evidence to suggest that the draw-down affected the character, scope or size of the dam — the only man-made “structure” at issue. We note that this holding does not compel the conclusion that the DNR activities constituted maintenance. As we have discussed previously, the plaintiffs have brought forth sufficient evidence to create a genuine issue of material fact as to pretext and as to the reasonable necessity of the dredging to the alleged maintenance. 3. The Recapture Provision As we noted earlier, in order to escape the permit requirements of § 1344, in addition to establishing that their actions fall within one of the exemptions of § 1344(f)(1), the defendants also must establish that their actions are not “recaptured” by § 1344(f)(2). The recapture provision provides that, regardless of § 1344(f)(1), [a]ny discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). a. statutory construction Our interpretation of § 1344(f)(2) must be guided by well-established principles of statutory interpretation: When we interpret a statute, we look first to its language. If that language is plain, our only function is “ ‘to enforce it according to its terms.’ ” United, States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). The plain meaning of a statute is conclusive unless “ ‘literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)). Therefore, our interpretation is guided not just by a single sentence or sentence fragment, but by the language of the whole law, and its object and policy. Further, we may adopt a restricted rather than a literal meaning of a word where acceptance of the literal meaning would lead to absurd results. United States v. Balint, 201 F.3d 928, 932 (7th Cir.2000) (citations and parallel citations omitted). Here our analysis is straightforward. Looking to the language of § 1344(f)(2), the discharge of dredge or fill materials into navigable waterways is “recaptured” and subject to the permitting requirement when two conditions are met: 1) the discharge is “incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject”; and 2) “the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced” by the discharge. These two requirements are not set forth in the alternative but in the conjunctive; consequently, the recapture provision is applicable only when both of these conditions are present. The courts that have considered the recapture provision similarly have concluded that it applies only when both conditions have been fulfilled. The case law’s interpretation of the statutory language is in accord with the interpretation offered by the amici, the agencies charged by Congress with the administration of the statute. We note, moreover, that this interpretation is consistent with past constructions of the recapture provision proffered by the amici. In sum, the plain language of the statute establishes that the recapture provision requires a two-part showing: 1) that the dredging activity had as its purpose “bringing an area of the navigable waters into a use to which it was not previously subject,” and 2) that the dredging activity caused the flow or circulation of navigable waters to be impaired or the reach of such waters to be reduced. This interpretation is bolstered both by case law and by the considered judgment of the interpreting agencies. Consequently, if the defendants can establish as a matter of law either that their purpose was not to “bring[ ] any areas of navigable waters into a use to which it was-not previously subject” or that the activity did not impair the flow or reduce the reach of navigable waters, their actions are not “recaptured” by § 1344(f)(2). b. application We now must examine whether the defendants have established that the recapture provision does not apply to' their actions of May 18,1998. We look first to whether the facts, construed in the light most favorable to the plaintiffs, establish that the defendants’ purpose was other than “bringing an area of navigable waters” into a new use. Nevertheless, as we have just determined, the recapture provision has two components and showing merely effects will not serve as a substitute for a finding of a purpose to bring about a new use. Although “[c]ommon sense dictates that, under normal conditions, ordinary maintenance would not subject an area to ‘a use to which it was not previously subject,’ ” Sargent County I, 876 F.Supp. at 1088 (quoting 33 U.S.C. § 1344(f)(2)), many of the defendants’ actions were inconsistent with their stated purpose of performing maintenance. After they drew down the water to expose the pipes and the dam, they did not engage in the proposed repairs immediately, but took a lunch break, drove to purchase supplies, and, indeed, never accomplished the proposed repairs on that day. Furthermore, there was evidence in the record that, prior to May 18, 1998, the defendants had expressed interest in dredging the supply pond. Given these facts, we do not believe that the defendants have established that their purpose was maintenance. Based on this evidence, a reasonable finder of fact could conclude that the defendants’ maintenance explanation was merely a pretext. Thus, we cannot say that, as a matter of law, the defendants have established that they escape the first prong of the recapture provision. With respect to the “effects” prong of the recapture analysis, viewing the evidence in the light most favorable to the plaintiffs, the record before us would permit the trier of fact to conclude that the defendants’ actions of May 18, 1998, impaired the flow and circulation of the Fawn River. The plaintiffs’ evidence, set forth in some detail above, showed that the river bottom of the Fawn River had been elevated by 100,000 cubic yards of unconsolidated sediment that had been deposited in the river, thus altering the flow of the river. Specifically, one of the plaintiffs’ studies showed that release of mud and silt into the Fawn River on May 18, 1998, “elevated the bottom of Fawn River, ... impaired] the flow and circulation of those waters and ... reduc[ed] the pre-event reach of the waters. In addition, certain areas of the channel that were once flowing are currently stagnant and other areas of quiet waters have been significantly filled with mud.” R.84, Ex.8 ¶ 7. As well,- the sediment traveled into Greenfield Millpond and transformed that area from a shallow lake to a marshland. Dr. Willard observed that “[w]hat was once a mostly ... open water shallow lake environment is now an emergent wetland environment dominated by marshy conditions as a result of massive deposits of sedimentation from the events of May 18, 1998.” R.84, Ex.9 ¶ 12. Given the evidence in the record to show that the deposit of dredged materials into the Fawn River altered the flow of that navigable waterway, the defendants’ actions also permit the conclusion that the requirements of the second prong of the recapture provision have been met. We therefore conclude that, viewing the facts in the light most favorable to the plaintiffs, a trier of fact could conclude reasonably that the defendants’ actions in draining the supply pond on March 18, 1998, fall within the recapture provision and are subject to the § 404 permit requirement. C. Takings Claim The district court noted that, under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982): When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking. As early as 1872, in Pumpelly v. Green Bay Co., 13 Wall. (80 U.S.) 166, 20 L.Ed. 557, this Court held .... that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., 13 Wall. (80 U.S.) at 181. Id. at 427, 102 S.Ct. 3164; see R.131 at 30. Nevertheless, the district court (without discussing the issue of permanence) held that the plaintiffs’ taking claim was barred because the plaintiffs had failed to first bring an inverse condemnation suit in Indiana state court. See R.131 at 32. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-87, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court “articulated a special ripeness doctrine for constitutional property rights claims.” Forseth v. Vill. of Sussex, 199 F.3d 363, 368, 372 (7th Cir.2000). Under Williamson County, federal courts are barred from adjudicating takings claims until the plaintiff has satisfied two requirements, namely, “(1) the ‘Final Decision Requirement’: the plaintiff must demonstrate that he or she received a ‘final decision’ from the relevant government entity”; and “(2) the ‘Exhaustion Requirement’: the plaintiff must have sought ‘compensation through the procedures the States has provided for doing so.’ ” Forseth, 199 F.3d at 372 (quoting Williamson County, 473 U.S. at 186-87, 194, 105 S.Ct. 3108). We have subject matter jurisdiction over only those takings claims for which the Williamson County requirements are satisfied or otherwise excused. See Forseth, 199 F.3d at 368. Takings involving physical invasions — such as the taking alleged here— are subject to a more streamlined inquiry. We have held that a physical invasion constitutes a “final decision” and thus satisfies Williamson County’s first requirement. Therefore, this type of “takings claim is subject only to Williamson’s exhaustion requirement.” Forseth, 199 F.3d at 372 n. 12; see also Wisconsin Cent. Ltd. v. Pub. Serv. Comm’n of Wisconsin, 95 F.3d 1359, 1368 (7th Cir.1996) (“In takings cases involving a physical invasion ..., the plaintiff must exhaust available state judicial remedies for just compensation as a prerequisite to a lawsuit in an article III court.”). In Williamson County, the Supreme Court also “adopted a limited exception to its exhaustion requirement based on the futility of seeking state court relief.” Daniels v. Area Plan Comm’n of Allen County, 306 F.3d 445, 456 (7th Cir.2002). We explained: “Specifically, the Court held that a plaintiff may be excused from the exhaustion requirement if he demonstrates that ‘the inverse condemnation procedure is unavailable or inadequate.’ If inverse condemnation is inadequate, i.e., where compensation for diminished value is not an issue, resorting to that remedy would be futile.” Id. (quoting Williamson County, 473 U.S. at 197, 105 S.Ct. 3108). The plaintiffs argue that they do not have a remedy in state court and should be excused from the exhaustion requirement. Specifically, the plaintiffs point to recent Indiana case law which states that “an action for inverse condemnation is premature until such time as the landowner can establish that there are not available avenues by which the landowner can put his property to an economically beneficial or productive use.” Galbraith v. Planning Dep’t of Anderson, 627 N.E.2d 850, 854 (Ind.Ct.App.1994); see also Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1227-28 (Ind.Ct.App.1999). Because the plaintiffs still have some “economically beneficial or productive use” of their property, they maintain that they have no remedy under state law and that their position is akin to the plaintiffs in Daniels, for whom we excused the exhaustion requirement. We cannot accept this submission. In Daniels, 306 F.3d at 456, the plaintiffs were seeking only injunctive relief. However, Indiana law was clear that “equitable relief is generally unavailable as a matter of law where an action for compensation can be brought subsequent to the taking.” Indiana Dep’t of Transp. v. S. Bells, Inc., 723 N.E.2d 432, 434 (Ind.Ct.App.2000). Furthermore, the Indiana courts explicitly had held that the State did not recognize equitable relief for the alleged taking that occurred in Daniels, and the plaintiffs in Daniels had not suffered any compensable injury. Thus, in Daniels, we held that “with no monetary loss and injunctive relief not an available option under [Indiana law], the inverse condemnation procedure is inadequate to address the [plaintiffs’] injury,” and, consequently, “this futility exempts them from the exhaustion requirement.” Daniels, 306 F.3d at 457. However, Indiana courts have not constructed an absolute bar to state actions for physical-invasion takings such as that alleged in the present case. In spite of the all-encompassing statements made in Men-denhall and Galbraith, other Indiana cases indicate that Indiana in fact does recognize an inverse condemnation claim for a physical invasion of property, no matter how small that invasion. A brief overview of Indiana inverse condemnation law is instructive. Under Indiana state law, there are two stages in any action for inverse condemnation. First, “the landowner must show that he has an interest in land which has been taken for a public use without having been appropriated under eminent domain laws.” If the state “court finds that a taking has occurred, then the matter proceeds to the second stage where the court appoints appraisers and damages are assessed.” Jenkins v. Bd. of County Comm’rs of Madison County, 698 N.E.2d 1268, 1270 (Ind.Ct.App.1998). In determining the first step, the Supreme Court of Indiana and Indiana appellate courts have recognized that there are “two discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced.” The first category encompasses regulations that require the property owner to suffer a physical “invasion” of his or her property. The second category encompasses regulations that deny all economically beneficial or productive use of land. Georgetown v. Sewell, 786 N.E.2d 1132, 1139 (Ind.Ct.App.2003) (quoting Bd. of Zoning Appeals, Bloomington v. Leisz, 702 N.E.2d 1026, 1028-29 (Ind.1998)); see also Metro. Dev. Comm’n of Marion County v. Schroeder, 727 N.E.2d 742, 753 (Ind.Ct.App.2000) (noting the existence of “two discrete categories” of takings regardless of legitimate state interests, namely takings by physical invasion and takings by denial of all economic use of the property); Natural Res. Comm’n of Indiana v. AMAX Coal Co., 638 N.E.2d 418, 430 (Ind.1994) (noting that a “taking is recognized not only for physical seizure or invasion of property by the government,” but also when a property owner is deprived of the “economically viable use of his property” (emphasis added)). This recognition of two categories of takings for purposes of inverse condemnation proceedings, see Georgetown, 786 N.E.2d at 1139, comports with the takings doctrine espoused by the Supreme Court of the United States. Furthermore, Indiana law also mirrors federal constitutional law in that a physical invasion need not deprive an owner of all economically beneficial use of the land in order to be compensable; rather, the Supreme Court of Indiana has stated that a taking occurs whenever the state “compel[s] a property owner to suffer a physical invasion, no matter how minute, of his property.” Leisz, 702 N.E.2d at 1028-29 (emphasis added); see Loretto, 458 U.S. at 427, 102 S.Ct. 3164. Thus, Indiana recognizes a physical invasion taking claim, even for a minute physical invasion of a plaintiffs property. In light of the distinction that Indiana law recognizes between takings characterized by a physical invasion and those that are not, we do not believe that the plaintiffs’ arguments based on Mendenhall and Galbraith are compelling. As noted above, plaintiffs cite those cases for the proposition that a plaintiff may not pursue a state inverse condemnation action absent a showing that he has been deprived of all economically beneficial use of his property; however, neither case concerned a valid claim of a physical invasion taking. As just reviewed, recent Indiana cases, including inverse condemnation cases such as Georgetown, 786 N.E.2d at 1139, state that there are two categories of takings: physical invasion takings and takings that deprive the owners of all economically beneficial use of their property. There is no indication in Indiana law that owners who suffer a physical invasion also must lose all economically beneficial use of their property in order to bring an inverse condemnation action. Consequently, we believe that the statements in Mendenhall and Galbraith, when placed in the correct factual and legal context, do not apply to physical-invasion takings. Therefore, in contrast to the situation in Daniels, we have failed to find any cases indicating that Indiana would not recognize a state action for a physical-invasion taking. Indeed, all indications are that plaintiffs have a state remedy — a state inverse condemnation action — which they have not pursued. We must conclude, therefore, that the plaintiffs have not exhausted their state remedies as required by Williamson County, and their takings claim is not properly before this court. D. Procedural Due Process The plaintiffs argue that the DNR deprived them of their property without due process of law when it caused the dredged material from the supply pond to invade and destroy their property. Although not discussed by the parties, our case law explains that the Williamson County exhaustion requirement applies with full force to due process claims (both procedural and substantive) when based on the same facts as a takings claim. See Hager v. City of West Peoria, 84 F.3d 865, 869 (7th Cir.1996) (stating that “[t]he exhaustion requirement of Williamson County applies whether plaintiffs claim an uncompensated taking, inverse condemnation, or due process violation” and thus the plaintiffs were required to “first pursue their claims, whether in the form of a takings challenge or a due process claim, in ... state court”). We have explained that, although we recognize that a governmental taking of property may encompass due process concerns, nevertheless, “due process challenges are premature if the plaintiff has not exhausted possible state remedies by which to attack the zoning regulation or other state action” creating the taking. Covington Ct. Ltd. v. Vill. of Oak Brook, 77 F.3d 177, 179 (7th Cir.1996). Thus, the plaintiffs’ procedural due process claim based on a deprivation of a property interest also is barred from federal review. Conclusion For the foregoing reasons, the judgment of the district court with respect to the CWA claim is reversed, and that claim is remanded for further proceedings consistent with this opinion. The judgment of the district court with respect to the plaintiffs’ takings and procedural due process claims is affirmed. The plaintiffs may recover their costs in this court. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . After oral argument, the court invited the Environmental Protection Agency and the United States Army Corps of Engineers to file a brief as amicus curiae. The Agency and the Corps accepted the court’s invitation and filed a brief. The court expresses its thanks to both for the assistance that they have rendered. . Because the district court granted summary judgment to the defendants, we take the facts as alleged by the plaintiffs to be true. See Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir. 1998). . The "town’s project” was the proposed dredging of the supply pond and construction of the dike. See R.4, Ex.12. . The plaintiffs take issue with Mr. Meyer's and Mr. Clary's explanations that the purpose of opening the dam was to make repairs to the pump. The plaintiffs point to evidence in the record that, prior to the incident, the defendants were aware that it was possible to drain the supply pond more slowly to avoid the release of mud and sediment into the Fawn River. See, e.g., R.93, Ex.l at 197-99, 205 (deposition of Mr. Meyer) (conceding that "we probably could have done it [drained the supply pond] slower than we did”). . Mr. Meyer admitted that the water flow on the supply pond was not low on May 18, 1998; instead he recollected "a normal flow type of condition, neither high nor low.” R.93, Ex.l at 69. . In his deposition, when asked why, upon seeing the black water flowing through the dam, he quickly attempted to increase the amount of clean water in the river, Larry Koza responded: Well, you hate to see a lot [of] heavy, you know, dark colored sediment laden, whatever you call it, water going down the stream. And if that has to happen, then you want to make sure that you have as much fresh water, you know, coming into there. My — you know, my first thought was for [the] fish population to make sure that you were getting as much clean water through as you could. R.93, Ex.23 at 45. . Whether the supply pond was refilled completely on the afternoon of May 18, 1998, seems to be in dispute. Dr. Daniel Willard personally inspected the supply pond on May 22, 1998, and he noted that the supply pond "showed that it had recently been drawn down considerably.” R.9, Ex.2 at 20. Additionally, photographs taken on May 24, 1998, by plaintiffs Gene and Sharon Lewis show that water still was collecting in the channel cut on March 18, 1998, and that the upper supply pond had not refilled to its former banks. See R.84, Ex.lOD. . The defendants themselves offered conflicting testimony concerning the water that came out of the gates and the effects on the river below. In contrast to the statements recounted in the text, the defendants made statements indicating that the water clarity was "unremarkable." See, e.g., R.77 ¶¶ 19-20. Mr. Clary, for example, stated in his affidavit that, at about 5:00 p.m. on May 18, 1998, he traveled to the County Road 1100 East bridge that overlooked part of the river and from there the river appeared "normal and I could see the stream bottom.” R.76 ¶ 13. Mr. Le-det made a similar statement that he went to the County Road 1100 East bridge and "[t]he water clarity and level at this bridge crossing were normal. The water was not unusually turbid or discolored with silt.” R.80 ¶ 9. Additionally, Mr. Meyer noted that the water coming out of the bottom gate was "discolored”; and that after closing the gates he "observed a thin layer of silt and discolored water” downstream, but, from the County Road 1100 East bridge, "water clarity was unremarkable and [he] observed no dead or distressed fish.” R.77 ¶¶ 19-20. The power of these statements is diminished by Mr. Clary's explanation in his deposition that, when he went to the bridge and saw "no indication [of] silt or sediment,” that he knew that the silt or sediment cut from the dam "would have to have been” mostly discharged (at that time) somewhere between the County Road 1100 East bridge and the dam. See R.84, Ex.2 at 167. Mr. Clary's deposition statement makes it clear that he knew that the silt and deposit had to be somewhere above the County Road 1100 East bridge and below the dam. Thus, the fact that the river color and flow was unremarkable at County Road 1100 did not indicate to him that the river was free from silt or other deposits. . Plaintiffs also placed into the'record affidavits and photographs regarding the substantial deposits of mud into Greenfield Millpond. The affidavits demonstrate that the Greenfield Millpond, which is located approximately five miles downstream from the Orland Dam, was converted from a primarily open water environment before May 18, 1998, to a primarily vegetative environment after the dam was opened. See R.84, Ex.12 ¶ 4, Exs.l2A-12B. . This observation was corroborated by several other documents in the record. For example, Gene Lewis stated in an affidavit that he found ninety-four dead fish the day after the opening of the dam and has observed the death or disappearance of many fresh water mussels and snails. See R.84, Ex. 10 ¶¶ 10, 23. Indeed, the DNR acknowledged the fish kill. See R.4, Ex.8. . In fact, the defendants’ own evidence supports the plaintiffs’ theory that the water cut a channel through the floor and that the displaced sediment went into the Fawn River. Mr. Clary stated in his deposition that the water coming out of the dam became "somewhat muddy after the pond was drained and it was cutting the channel as it went through the pond bottom.” R.84, Ex.2 at 43. He went on to explain that, although he "didn’t make any measurements” he would guess that the "meandering” channel was "anywhere from one to three feet” deep. Id, at 44. Mr. Ledet, upon arrival at the supply pond, noticed that "the water level in the supply pond had been lowered to a distinct channel exposing the silt covered bottom. Water flowing through this channel was picking up silt and transporting it through the flow control gate.” R.80 ¶ 5. Thus, according to the defendants’ evidence, the force of the water flowing out of the dam cut a channel into the floor of the supply pond. . "Navigable waters,” is defined as the "waters of the United States,” 33 U.S.C. § 1362(7). The parties do not dispute that the Fawn River, an interstate river, falls within "waters of the United States.” See Appellants’ Br. at 21 n. 14. . "Person” is defined to include a "Slate, municipality, commission, or political subdivision of a state.” 33 U.S.C. § 1362(5). . The district court and the parties discussed CWA liability on the part of the defendants in terms of both § 402 and § 404. However, § 404 is the permitting scheme that regulates discharges of dredge and fill material, which is the category of discharge at issue here, and thus is the permitting scheme relevant to this case. If a defendant falls within an exception to the permitting requirements of § 404 under § 1344(f)(1), as argued here, then the defendant is not liable under § 1311 for having "discharged a pollutant” or subject to the § 1342 (§ 402) permitting requirements. See 33 U.S.C. § 1344(f)(1) (explaining that the exemptions for obtaining a § 404 permit for the discharge of dredge and fill material also exempt the discharge from regulation under §§ 1311 or 1342). As explained in the amicus brief of the Environmental Protection Agency and the Army Corps of Engineers (collectively "amici”), [t]he discharge of pollutants other than dredged or fill material are generally regulated under section 402, which creates the EPA-administered National Pollutant Discharge Elimination System ["NPDES”] permitting program. See 33 U.S.C. § 1342. Discharges of dredged or fill material are generally regulated under section 404, which creates the Corps-administered dredge-and-fill permitting program. 33 U.S.C. § 1344. The discharges in this case fall within the purview of the section 404 program.... Amicus Br. at 4-5. This distinction is also made clear in the regulations implementing § 1342. See 40 C.F.R. § 122.1(a)(1). ("The regulatory provisions contained in this part and parts 123, and 124 of this chapter implement the National Pollutant Discharge Elimination System (NPDES) Program under section 318, 402, and 405 of the Clean Water Act ....”). According to the regulations, "[t]he following discharges do not require NPDES permits: ... (b) Discharges of dredged or fill material into waters of the United States which are regulated under section 404 of the CWA.” 40 C.F.R. § 122.3(b). - We note in passing that the regulations implementing § 404 set forth certain exceptions to the definition of "discharge of dredged material” including “[djischarges of pollutants into waters of the United States resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill).” 33 C.F.R. § 323.2(d)(3)(i). "These discharges,” the regulations explain, "are subject to section 402 of the Clean Water Act even though the extraction and deposit of such material may require a permit from the Corps or applicable state Section 404 program.” Id. However, such materials are not at issue in the present case, and § 404 is the only permitting process applicable here. Consequently, we affirm that portion of the district court's judgment holding that the defendants were not required to obtain a § 402 permit for their actions on May 18, 1998, but on the ground set forth above. Nevertheless, we note our disagreement with the district court's conclusion that the defendants’ purpose and intent were relevant in determining whether § 402 had been violated. See R.131 at 29 (stating that the defendants were not liable under § 402 because they “had no purpose of excavating and redepositing soil downstream”). Liability for discharging a pollutant without a § 402 permit and absent an exemption is strict; a defendant’s intent or purpose is irrelevant. See Kelly v. EPA, 203 F.3d 519, 522 (7th Cir.2000) (citing cases). . In the district court, the parties disputed whether “dredged” materials included materials that had been hydraulically dredged or “sluiced”; however, the defendants do not urge any such distinction in this court. . The CWA defines a point source as any discernable, 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). We noted in Froebel v. Meyer, 217 F.3d 928 (7th Cir.2000), that several other circuits had addressed the issue whether a dam could be considered a point source and that "all have concluded that, at least under some circumstances, a dam can meet the statutory definition of point source.” Id. at 937. Although we were not required to resolve the issue in Froebel (because the dam largely had been removed), we stated that “the CWA’s definition of ‘point source' ... connotes the terminal end of an artificial system for moving water, waste, or other materials.” Id. at 938. We also noted that “[t]he broad reach of 'navigable waters' pushes the natural reading of 'point source' back to the point at which an artificial mechanism introduces a pollutant.” Id. Here, the artificial mechanism of the dam was used to convey pollutants into the Fawn River, a navigable waterway. Consequently, we believe that the dam constitutes a "point source.” See Catskill Mountains Chapter of Trout Unltd., Inc. v. City of New York, 273 F.3d 481, 493 (2d Cir.2001) (noting that “point source” refers to "the proximate source from which the pollutant is directly introduced to the destination water body,” giving the example of a pipe). . The amici note that the situation in National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982), and National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir.1988), concerned normal dam operations that resulted in changes to water quality. Here, by contrast, the sediment had settled out of the navigable waters, and the DNR’s opening of the flow structure control gates dredged those materials from their resting place and added them to the navigable downstream waters. . Amici construe the recapture provision as containing two distinct elements: that the activity (1) has " ‘as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,’ and (2) has the consequence of impairing the flow or circulation of navigable waters or reducing the reach of such waters.” Amicus Br. at 8. . See also 3 Legislative History 283 "These specified activities should have no serious adverse impact on water quality if performed in a manner which will not impair the flow and circulation patterns and the chemical and biological characteristics of the affected water-body and which will not reduce the reach of the affected waterbody.” (H.R.Rep. No. 95-830, at 99 (1977)); id. at 421 ("A case-by-case permit review would not be required for narrowly defined activities that cause little or no adverse effects either individually or cumulatively, including those activities narrowly defined in 404(f)(l)(A-F).”); id. at 474 ("Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively” even though "it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources .... ” (emphasis added)); id. at 529 (noting that the § 1344(f)(1) exemptions "exclude[] from permit requirements, discharges of dredged or fill material in conjunction with the following activities that will cause little or no adverse effects either individually or cumulatively”); 4 Legislative History 870 (recognizing that the § 1344(f)(1) exemptions were intended “to free from the threat of regulation those kinds of manmade activities which are sufficiently de minimus as to merit general attention at State and local level and little or no attention at the national level” (emphasis added)); id. at 912 (stating that the § 1344(f)(1) exemptions "should have only a minor impact on water quality if performed in a manner that will not impair the flow and circulation patterns and the chemical and biological characteristics of the affected waterbody, and that will not reduce the reach of the affected waterbody”). . The regulations also imply a requirement of reasonableness for the maintenance provision at least in the circumstance of emergency reconstruction of recently damaged parts. The regulations only exempt emergency reconstruction that "occur[s] within a reasonable period of time after damage occurs.” 33 C.F.R. § 323.4(a)(2). . We also note that “an agency’s considered interpretation of its own regulation is entitled to deference ‘when the language of the regulation is ambiguous.' " Old Ben Coal Co. v. Dir., Office of Workers' Comp. Programs, 292 F.3d 533, 542 n. 8 (7th Cir.2002). . See Borden Ranch P’ship v. United States Army Corps of Eng’rs, 261 F.3d 810, 815 (9lh Cir.2001) (reciting language of § 1344(f)(2) and stating that "[c]onverting ranch land to orchards and vineyards is clearly bringing the land 'into a use to which it was not previously subject,' and there is a clear basis in this record to conclude that the destruction of the soil layer at issue here constitutes an impairment of the flow of nearby navigable waters” (emphasis added)), aff'd, 537 U.S. 99, 123 S.Ct. 599, 154 L.Ed.2d 508 (2002); United States v. Brace, 41 F.3d 117, 129 (3d Cir.1994) (holding that district court incorrectly placed the burden of proof on the Government to establish "the two elements” of the recapture provision); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir.1983) (finding that the district court was correct in looking at the "purpose and effect” of the activities);’ Sargent County II, 876 F.Supp. at 1102-03 (noting that the recapture provision applies where an activity "brings an area of navigable waters into a use to which it was not previously subject and where the flow of the waters is impaired and their reach reduced” (emphasis added)); In re Carsten, 211 B.R. 719, 732 (1997) (stating that "[t]he plain language of 33 U.S.C. 1344(f)(2) entails two clauses” thus "creat[ing] a two prong test”). . See Amicus Br. at 8 (stating that § 1334(f)(2) recaptures an “otherwise exempt” activity “only if that activity (a) has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and (b) has the consequence of impairing the flow or circulation of navigable waters or reducing the reach of such waters”). . In a Regulatory Guidance Letter from the EPA and the Army Corps of Engineers concerning whether “Deep-Ripping” activities were recaptured under § 1344(f)(2), the recapture provision was construed as requiring a permit “for those otherwise exempt discharges which: a. convert an area of the waters of the U.S. to a new use, and b. impair the flow or circulation of the waters of the U.S. or reduce the reach of waters of the U.S.” Regulatory Guidance Ltr. 96-02 (Dec. 12, 1996), available at http:// www.usace.army.mil/inet/functions/cw/cecwo/ reg/rgls/rgl96-02.htm (expired Dec. 31, 2001) (underlining in original). Similarly, in a published memo from the EPA and Army Corps of Engineers, the recapture provision was construed as containing “a two part test” that requires recapture when both of the following are met: "1) does the activity represent a 'new use' of the wetland, and 2) would the activity result in a ‘reduction in reach/impairment of flow or circulation' of waters of the United States?” United States Environmental Protection Agency & United States Dep’t of the Army, Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural Activities (May 3, 1990), available at http://www.epa.gov/owow/ wetlands/cwaag.html. .We do not believe that a two-pronged approach runs contrary to our holding in United States v. Huebner, 752 F.2d 1235 (7th Cir.1985). In that case, the plaintiffs had plowed and removed wetland vegetation from three reservoirs for “the immediate planting of barley [and] for the future planting of com and other dryland crops,” had "used backhoes to clean and deepen existing ditches," had “used a dragline to excavate an approximately 400 foot long new ditch,” had drained wetlands, had "sidecast materials onto the wetlands,” had "used bulldozers to spread the discharge over several acres,” had built roads, and had expanded the existing cranberry beds. Id. at 1241-43. It was clear that the plaintiffs' overall intention was to convert wetlands into uplands for the cultivation of dryland crops and to expand their existing cranberry beds into wetlands that previously had not been used for cultivating wetland crops. The plaintiffs in Huebner attempted to use the § 1344(f)(1)(C) exemption for the “construction or maintenance of ... irrigation ditches” to exempt their, ditching and draining activities. Although we did not specifically restate the requirement of § 1344(f)(2) of a “purpose [to] bring[] an area of the navigable waters into a use to which it was not previously subject,” it was clear that the purpose of the activities described in Huebner was to bring wetlands into a new use. Thus the “new use” requirement was not at issue; all we needed to analyze was whether or not the second requirement of impairing the flow or circulation had been met. Thus the fact that in Huebner we only discussed the second requirement of the recapture provision does not indicate that the first requirement does not exist. As another court has noted, in Hueb-ner, we "did not address the previous use issue with respect to the ditches because the project as a whole clearly went far beyond any prior use, as the ... facts [in Huebner ] amply demonstrate.” United States v. Stearns, CIV. No. 3-89-0616, 1990 WL 606673 at *3 (D.Minn.1990). Even more importantly, however, "[t]o cite Huebner for the proposition that any discharge of dredged material onto a wetland requires a permit under the recapture clause is to read the previous use language out of the recapture clause.” Id. We agree that to read Huebner as requiring only a showing of a resulting impairment in the flow or reduction of the circulation of waters would read the language requiring a showing of a "purpose [of] bringing an area of the navigable waters into a use to which it was not previously subject” out of the recapture provision. 33 U.S.C. § 1344(f)(2). . Several courts have recognized the importance of examining the effects of the activity in determining the defendants' "purpose.” See United States v. County of Stearns, 1990 WL 606673, at *4 (D.Minn. Oct.2, 1990) (stating that "the effect of the project must be considered where a[n][] entity’s 'purpose' is analyzed" and that "the 'purpose' question is closely related to the extent of wetlands likely to be lost”); United States v. Akers, 785 F.2d 814, 822 (9th Cir.1986) ("It is thus the sub-stantiality of the impact on the wetland that must be considered in evaluating the reach of § (f)(2).”); United States v. Cumberland Farms, 647 F.Supp. 1166, 1176 (D.Mass. 1986) (same). Although not essential to our holding today, we believe that a trier of fact would be entitled to consider and to give some weight to the effect of the defendants’ actions in determining the purpose of their activity. . The plaintiffs brought forth expert testimony that the deposits were at least semi-permanent, but no actual finding on this point was made. See R.84, Ex.9 ¶ 14 (noting that clearing of the deposits by the river itself will take decades if it ever occurs). Because we agree with the district court that the plaintiffs' takings claim is barred by the plaintiffs’ failure to exhaust state remedies, we do not reach the question of permanence. . See also Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91 (1st Cir.) (stating that “a modified version” of the Williamson County analysis "applies to physical taking cases,” under which "the final decision requirement is relieved or assumed,” yet "the state action requirement remains in physical taking cases: Compensation must first be sought from the state if adequate procedures are available” (internal quotation marks, brackets and citations omitted)), cert. denied, - U.S. -, 124 S.Ct. 962, 157 L.Ed.2d 795 (2003); Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th Cir.) ("The ripeness analysis of Williamson County applies to physical takings, but in a modified form. The first Williamson County requirement is automatically satisfied at the time of the physical taking .... The second Williamson County requirement remains the same. In a physical takings case, as in a regulatory takings case, the property owner must have sought compensation for the alleged taking through available state procedures.”), cert. denied, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329 (2002). . Here, it appears from the plaintiffs' complaint that they seek primarily damages, but also a "permanent injunction” against the defendants that would "prohibit[] any future lowering of the reservoir/freshwater lake waters without prior notice and adequate process to protect the Plaintiffs and the river from harm.” R.l at 25-26. Whether or not this injunction would be warranted as a matter of law, the plaintiffs' complaint does not tie specifically the prayer for injunctive relief to the takings claim. See id. The plaintiffs pray primarily for damages. See id. Thus this case is not like Daniels v. Area Plan Commission of Allen County, 306 F.3d 445 (7th Cir.2002), where the plaintiffs sought exclusively equitable relief and had suffered no compensable damages. Moreover, in their submissions to this court, the plaintiffs have argued only that they were not required to exhaust state remedies because Indiana allegedly does not recognize physical invasion takings. They did not argue that they were seeking injunctive relief and thus had no remedy under Indiana law. Thus we analyze the plaintiffs' takings claim as one for damages, and conclude that Indiana provides monetary relief for takings in the form of a suit for inverse condemnation. See Daniels, 306 F.3d at 456 (noting that Indiana provides an inverse condemnation action "to recover the value of the property which has been taken in fact” (internal quotation marks and citations omitted)). . The defendants appear to argue in their brief that the plaintiffs do not have any property rights in the Fawn River or its banks except a right to unimpeded river access and constructions of wharves, etc. See Appellees’ Br. at 19. As noted by the plaintiffs, the district court ruled when denying a prior motion to dismiss that the plaintiffs had a property interest in the riverbed and use of the river under state law. The district court held that for state-law purposes, the Fawn River was non-navigable, and thus under Indiana law, the plaintiffs had the right to " ‘free and unmolested use and control of [their] portion of the [river] bed and water thereon for boating and fishing.’ ” R.51 at 19 (quoting Carnahan v. Moriah Property Owners Ass’n Inc., 716 N.E.2d 437, 441 (Ind.1999)). Because we determine that plaintiffs were required to exhaust their remedies in state court, we do not have jurisdiction to determine whether or not a taking took place and thus we will not delve into the issue of what property rights were or were not held by the plaintiffs under Indiana state law. . In Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001), the Supreme Court recognized that "even a minimal permanent physical occupation of real property requires compensation under the Clause” and that "with certain qualifications ... a regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause.” Id. at 617, 121 S.Ct. 2448 (internal quotation marks and citations omitted). The Supreme Court of Indiana has noted generally that the property takings protections provided by the Indiana Constitution are coextensive with those provided by the Federal Constitution. See Cheatham, v. Pohle, 789 N.E.2d 467, 472-73 (Ind.2003). . In Mendenhall v. City of Indianapolis, 717 N.E.2d 1218 (Ind.Ct.App.1999), the state twice had seized the plaintiff’s property and later had allowed him use of it if he signed a covenant that the property would not be used for "any adult use in the future.” Id. at 1228. However, the court did not consider whether the physical seizures constituted takings because the plaintiff had failed to challenge the seizures in a timely manner in state court. Id. ("Mendenhall passed up his opportunity to argue the validity of the order and the subsequent seizure of his property.”). The plaintiff also had argued that the restrictive covenant was a taking; with respect to this argument, the court stated that "Mendenhall has not shown that the covenant deprived his property of 'all economically beneficial or productive use.' Mendenhall has failed to show that a 'taking' of his property for public use without compensation to him has occurred.” Id. (quoting Galbraith v. Planning Dep’t of Anderson, 627 N.E.2d 850, 854 (Ind.Ct.App.1994)). At issue in Galbraith v. Planning Department of the City of Anderson, 627 N.E.2d 850 (Ind.Ct.App.1994), was a zoning ordinance that restricted the plaintiff's use of his property. In determining whether the zoning ordinance constituted a taking, the court stated that "a zoning regulation 'goes too far,’ that is, is confiscatory, when it denies the property owner 'all economically beneficial or productive use of the land.' ” Id. at 853 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). Thus, the statements that an owner must show that all economically beneficial use of property has been lost before instituting a state inverse condemnation action arose in the context of regulations on the use of property, not in the context of a physical invasion of property. . See also River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994) (noting that "[ljabels do not matter" and holding that a plaintiff could not avoid Williamson County 's exhaustion requirement simply by adopting the label of "procedural due process”); Forseth, 199 F.3d at 370 (explaining that a "substantive due process claim [that] falls within the framework for takings claims” is "subject to Williamson's requirement that [the plaintiffs] seek a final decision and pursue state court remedies before federal courts have jurisdiction to hear their case”). . Additionally, because we find that plaintiffs have failed to exhaust their administrative remedies, we need not and do not address the issue of whether the draw-down of the pond was a random, unauthorized act or whether the DNR employees possessed the requisite intent to establish a due process violation.

Greater Yellowstone Coalition v. Flowers

STEPHEN H. ANDERSON, Circuit Judge. In this case we consider Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, and National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70Í, challenges to a CWA § 404 “dredge and fill” permit, issued by the U.S. Army Corps of Engineers (“Corps”) to Canyon Club, Inc. (“Canyon Club”), a development company. The permit authorizes Canyon Club to proceed with constructing an upscale housing development and championship golf course on ranch land previously owned by Mr. L. Richard Edgeomb, Canyon Club’s president and primary shareholder. The land lies along the Snake River in Teton County, Wyoming, in the vicinity of highly productive bald eagle nesting territory. Two environmental groups, the Greater Yellowstone Coalition and the Jackson Hole Conservation Alliance (collectively referred to as the appellants), brought this suit against Corps officials (collectively referred to as the federal appellees) and Canyon Club, challenging the Corps’ issuance of the permit as a final agency action and seeking a preliminary injunction on construction activities. The district court denied the appellants’ motion for a preliminary injunction. In an interlocutory appeal from that decision, this court reversed and remanded the case for further consideration. Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250 (10th Cir.2003) (“Greater Yellowstone I ”). Shortly thereafter, the district court decided the case on the merits, upholding the Corps’ issuance of the permit. In this appeal, the appellants ask us to set aside the permit because, they argue, (1) the Corps’ consideration of alternatives to Canyon Club’s proposal did not meet the requirements of either the CWA or NEPA, and (2) the Corps also violated NEPA by failing to prepare a full environmental impact statement. BACKGROUND The 359-acre Canyon Club development property lies seventeen miles south of Jackson, Wyoming, in the Snake River Canyon, across the river from U.S. Highway 26/89. The property is part of a “1,222-acre conglomerate of private land” that includes a 544-acre segment of the River Bend Ranch on the Canyon Club property’s north side, the 195-acre Snake River Canyon Ranch to the north of that, and a 125-acre segment of the River Bend Ranch to the south, on the other side of a strip of National Forest land. Appellants’ App. Vol. 3 at 419. Together, these properties “represent the largest private land-development opportunity in the upper portion of the Snake River Canyon.” Id. While upstream levees have negatively impacted the Snake River’s riparian habitat closer to Jackson, the area surrounding the Canyon Club property “currently supports an intact and healthy riparian ecosystem” that includes important wintering, foraging, and nesting habitat for bald eagles. Id. Vol. 1 at 35. Three bald eagle nesting territories lie on or in the immediate vicinity of the Canyon Club property. Two of these — the Dog Creek and the Cabin Creek territories — have been highly productive, together yielding at least fifty-six fledglings since the bald eagle’s 1978 listing as “endangered” under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. The pair occupying the third territory — Martin Creek — have produced fledglings only once since constructing their nest in 1995. The area’s habitat also supports moose, elk, mule deer, black bears, mountain lions, trumpeter swans, and Snake River cutthroat trout, among other species. As noted above, the Canyon Club property was originally part of the River Bend Ranch, which Mr. and Mrs. Edgcomb purchased in 1994 and operated as a cattle ranch. Responding to the impact of tourism on the Teton County economy, the Edgcombs sold 286 acres of the Ranch to Canyon Club in December 2000, intending the land to be converted into an eighteen-hole golf course and residential development. According to Canyon Club, the Edgcombs needed the income generated by such a development in order to sustain the operation of the Ranch. At that time, the project design included fifty-four homes and placed golf course holes three and four on a gravel peninsula extending into the Snake River. Construction would require dredge and fill activities in waters and wetlands under the Corps’ jurisdiction, thus triggering the need for a § 404 permit. Canyon Club therefore submitted a § 404 permit application to the Corps in March 2001, requesting authorization to fill 1.5 acres and dredge 2.75 acres of jurisdictional wetlands, and to place up to twenty-three bendway weirs in the Snake River as necessary to stabilize the bank and prevent erosion. The Corps issued public notices of the proposal on April 19 and July 24, 2001. The 286-acre proposal met with opposition from the public and various state and federal agencies, including FWS, primarily due to the development’s potential effects on bald eagles and the possible impact of the bendway weirs on the Snake River. The proposal also did not comply with newly-developed Teton County land development regulations (LDRs) for golf courses, which prohibit golf course features within 150 feet of the river. In response to this opposition, Canyon Club met with various environmental groups and government agencies to discuss modifications to the proposal. At the Corps’ suggestion, Canyon Club considered relocating holes three and four elsewhere within the 286 acres. However, it was determined that this change would actually increase the project’s adverse environmental impact and would still involve golf course feature construction within LDR-mandated setbacks. FWS then suggested that Canyon Club consider extending the project north onto property that was then an alfalfa field and still part of the River Bend Ranch. In response, Canyon Club purchased the additional property from the Edgcombs, expanding the project area to 359 acres, and redesigned its proposal. At the Corps’ suggestion, Canyon Club withdrew its original § 404 application and submitted a new application, based on the new design, in October 2001. Like the original proposal, the 359-acre proposal involves construction of an eighteen-hole golf course, including a clubhouse and maintenance facilities. The number of housing units was increased to sixty-six residences on 4000-foot lots, primarily in the southeast part of the project site, and five rental cabins next to the golf course. The construction would involve filling 1.45 acres and dredging 1.71 acres of jurisdictional wetlands. In addition, .31 acre of Snake River would be filled during construction of up to twelve bendway weirs, .05 acre of tributaries would be filled during golf course construction, and 2.12 acres of an existing pond would be dredged during its reconstruction. The proposal also describes measures designed to mitigate the project’s environmental impact. The reconstructed pond and three new ponds, incorporated in the golf course design as water hazards, would provide habitat for waterfowl and cutthroat trout. Snake River water would be diverted into the Martin Creek stream channel in order to provide trout spawning habitat. Utility lines, including a 3.8-mile-long power line currently traversing the Snake River Canyon Ranch, River Bend Ranch, and Canyon Club properties, would be buried underground, and temporary wetland fill during this process would be removed. New conservation easements would be established on both the River Bend Ranch (a 244-acre easement) and the Canyon Club property (an 88-acre easement along the Snake River setback). The Canyon Club residential development’s declaration would include restrictive covenants controlling owner use of the property with regard, for example, to pets, snowmobiles, tree removal, and wildlife feeding. In the course of its decisionmaking process, the Corps asked Canyon Club to submit three documents — a biological assessment (“BA”), an environmental assessment (“EA”), and a § 404(b)(1) analysis. All three documents were prepared by Pioneer Environmental Services, Inc., an environmental consulting firm. The BA, submitted October 22, 2001, considered the project’s impact on species protected under the ESA, primarily focusing on bald eagles. It concluded that, as a result of construction activities as well as the increased human presence after the golf course and homes were occupied, the development “may affect, and is likely to adversely affect bald eagles,” potentially causing the three eagle pairs to abandon then- nests. Appellants’ App. Vol. 4 at 682. The Corps then issued a thirty-day scoping notice in connection with the 359-acre proposal on November 21, 2001, soliciting public comments on the project impacts. Attached to the notice were a number of maps showing the location of the houses and detailing the wetland impacts of golf course and lot construction. The notice informed the public that the project “is likely to adversely affect bald eagles” and that the Corps would therefore consult with FWS as required under ESA § 7, 16 U.S.C. § 1536. Appellants’ App. Vol. 2 at 257. In fact, the Corps had initiated formal consultation with FWS on November 16, 2001. After reviewing the Pioneer BA and gathering further information through direct correspondence with Pioneer and Corps staff and from other sources, FWS issued a biological opinion (“BiOp”) on April 5, 2002. The BiOp concluded that the Canyon Club development, as proposed, “is not likely to jeopardize the continued existence of the bald eagle” as a species, even if the Dog Creek, Cabin Creek, and Martin Creek eagle pairs were lost. Id. Vol. 4 at 851. Also, no bald eagle critical habitat would be affected since none had been designated. Attached to the BiOp was FWS’s incidental take statement, indicating that FWS “anticipates the loss of 3 bald eagle nesting territories ... as a result of the proposed action.” Id. at 852. Since there appeared to be no unoccupied nesting habitat elsewhere in the area, this would entail the “loss of 6 adult bald eagles.” Id. In addition, up to twelve juvenile bald eagles would be lost during the project’s two-year construction period as a result of the three pairs’ anticipated failure to breed or abandonment of their nests. The incidental take statement allowed the Corps to issue a § 404 permit authorizing the project without violating the ESA, provided that the Corps ensure Canyon Club’s compliance with a number of terms and conditions. These included the requirements that construction activities be completed within two years, that construction be regulated so that no activity would take place within 400 meters of a nest containing eagle chicks less than three weeks old, and that the effects of the project on the eagle nests be closely monitored by qualified biologists, both during construction and for five years after its completion. In addition to its consultation role under the ESA, FWS also responded directly to the Corps’ November 2001 public notice. In a comment letter dated December 20, 2001, the FWS Wyoming field office had recommended that the Corps deny the § 404 permit because of the expected “substantial and unacceptable impacts” on wildlife, including bald eagles, and because “less environmentally damaging alternatives to the proposed project have not been adequately evaluated.” Id. Vol. 2 at 292. FWS had also recommended that the Corps prepare an environmental impact statement (“EIS”) to evaluate the project’s impact and analyze the cumulative effects of the project together with proposed highway reconstruction and increased heli-ski-ing excursions operating out of the nearby Snake River Canyon Ranch. In light of these concerns, the FWS regional director, on January 14, 2002, had written to the Corps “reserv[ing] the option of elevating this project to the Washington level for further review” in accord with a 1992 Memorandum of Agreement (“MOA”) between the Departments of Interior and the Army regarding CWA § 404. Canyon Club’s App. at 87. On June 4, 2002, therefore, the Corps notified FWS of its decision to issue the § 404 permit and sent FWS copies of the Pioneer documents and a draft permit. On June 7, 2002, the FWS regional director responded that he had “decided not to request higher level review.” Id. at 89. Thereafter, on June 14, 2002, the Corps issued its decision granting the § 404 permit. The decision document was also designated as constituting the Corps’ environmental assessment, statement of findings, public interest review, and NEPA compliance determination, and incorporated the Pioneer § 404(b)(1) analysis, EA, and BA, attaching these as appendices. The decision document stated its agreement with the Pioneer § 404(b)(1) analysis’ conclusion that the proposed action “is the least damaging practicable on-site alternative.” Appellants’ App. Vol. 2 at 224. The Pioneer § 404(b)(1) analysis had noted that its determination of what was “practicable” took into account limitations imposed by golf course design requirements, Teton County LDRs, and the project’s stated purpose, which included the preservation of River Bend Ranch. It then described five alternatives, including a no-action alternative, a nine-hole golf course, the original 286-acre proposal, the suggested modification of the 286-acre proposal by relocating holes three and four, and the current 359-acre proposal. The analysis concluded that the no-action alternative would have a greater environmental impact than the proposed action because it would likely lead to the sale of the entire River Bend Ranch to Canyon Club and the construction of a 250-house residential development on the property. The analysis determined that the nine-hole golf course alternative was impracticable because the resulting reduced value of the associated residences and the lower demand for such a golf course would not cover golf course operation expenses or provide the required financial support to River Bend Ranch. The 286-acre alternatives were also deemed impracticable because they did not comply with Teton County LDRs. The analysis concluded that the proposed action “is the least damaging practicable alternative that satisfies the project purpose.” Id. at 322. The Corps had also conducted an independent analysis of whether other real estate sites in Teton County were practicable alternative sites for the project. The Corps found only two properties on the market that could support such a project and determined that locating the project at these locations would have a similar impact on wetlands while entailing a much higher cost than the proposed action. The Corps concluded that the proposed action “is the least environmentally damaging practicable alternative available.” Id. at 225. The Pioneer EA initially considered the same range of alternatives described in the § 404(b)(1) analysis but eliminated the nine-hole golf course and the modified 286-acre alternatives from detailed discussion because the former was not economically viable and the latter would have greater environmental impacts than the original 286-acre proposal. The EA then described the expected impacts of each of the three remaining alternatives (the preferred 359-acre proposal, no action, and the original 286-acre proposal) on soils and geology, water resources, wetlands, vegetation, wildlife, fisheries, cultural resources, land use, recreation, public utilities, socioeconomics, transportation, and visual resources. In its analysis of wildlife impacts, the EA predicted that the no-action alternative, while significantly reducing wildlife habitat on most of the River Bend Ranch and Canyon Club properties, should theoretically have less impact on bald eagles because its design would attempt to avoid the requirement for an incidental take permit from FWS. In fact, however, the ESA would likely “need to be revisited to determine whether ... provisions for the incidental take of bald eagles would be necessary,” with the result that the same issues would be “re-analyz[ed] ... in the near future.” Id. Vol. 3 at 390. The 286-acre alternative was expected to have a lesser impact on the Dog Creek nest because golf course features would be farther away, but the two golf course holes on the gravel peninsula would negatively impact eagle foraging habitat. The EA concluded that, “[gjiven the inherent right of land owners to develop their properties consistent with county development regulations,” the “transition of land use from agricultural/ranching activities to residential and resort development” was “unavoidable.” Id. at 474. The Corps’ decision document summarized the Pioneer EA and BA’s impact analyses, concluding that all practicable alternatives would have similar impacts on wetlands and fish and wildlife. The Corps supplemented the Pioneer reports with further discussion of the project’s potential effects on Snake River recreational users. It acknowledged that the loss of the Cabin Creek eagle pair would interfere with the U.S. Forest Service’s goal of maintaining four bald eagle pairs on National Forest land in that vicinity. This, in turn, could lead the Forest Service to reduce the level of recreational river use in order to compensate for increased human activity on Canyon Club property. The Corps concluded, however, that the potential for such an impact and the associated loss in public and private revenues was “extremely remote” and was insufficient to warrant denial of the permit. Id. Yol. 2 at 231. In response to public comments concerning the impact of the proposed bendway weirs on the Snake River, the Corps noted that if the weirs were implemented, the Corps would monitor their effect on the river and could require their modification or removal if the effect was adverse. The Corps thus concluded that the bendway weirs were “not likely to adversely affect the proper function of the Snake River and associated floodplain.” Id. at 233. In discussing the project’s proposed mitigation activities, the Corps concluded that the establishment of the planned conservation easements would fully mitigate any adverse effects of the project on riparian areas adjacent to the Snake River. In addition, the Corps noted that wetland areas excavated during construction of the four ponds involved in the project would likely rejuvenate in shallow areas of the ponds, that the project would enhahce fish habitat in Martin Creek, and that some wetlands in the project area had already been severely degraded by livestock grazing. The Corps did, however, require compensatory wetland creation at a ratio of at least 1.5:1 for various wetland types. The Corps then issued its determination that the project would not have a significant impact on the quality of the human environment and that an EIS was therefore not required. In granting the § 404 permit, the Corps established certain mandatory conditions and, in particular, noted that the permit authorization was conditional upon Canyon Club’s compliance with the terms and conditions imposed by FWS’s incidental take statement. The appellants then brought suit in federal district court challenging the § 404 permit decision as a final agency action and seeking a temporary restraining order (“TRO”) and preliminary injunction to halt construction on the project. Although the district court initially granted the TRO, it lifted the order on August 16, 2002, following a hearing. On August 19, 2002, it denied the preliminary injunction, holding that the appellants had failed to show irreparable harm to bald eagles if the injunction were not issued. We reversed this holding on appeal on February 20, 2003, and remanded the case, directing the district court to consider the other prongs of the preliminary injunction test. Greater Yellowstone I, 321 F.3d at 1261-62. Canyon Club requested en banc review of this court’s decision. However, on April 25, 2003, before this court had ruled on the en banc petition, the district court issued a final judgment on the merits, rejecting the appellants’ environmental law claims and affirming the Corps’ issuance of the § 404 permit. In doing so, the district court denied the appellants’ request to supplement the administrative record with an affidavit by Mr. Stephen Speidel, a landscape architect, describing alternative golf course layouts that, the appellants claimed, served the project’s purpose while inflicting- less harm on bald eagles than the design approved by the Corps. The appellants raise some of the same issues here that they raised below under the CWA and NEPA and also challenge the district court’s refusal to admit the Speidel affidavit. We denied the appellants’ motion for an injunction pending appeal on May 22, 2003. We now consider the merits of the appellants’ claims. DISCUSSION We review the Corps’ compliance with NEPA and the CWA pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-06, which “empowers a reviewing court to hold unlawful and set aside [final] agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir.2002), modified on reh'g, 319 F.3d 1207 (10th Cir.2003). In considering whether to overturn the Corps’ decision to issue the § 404 permit, we apply the same deferential standard to the administrative record as did the district court; the Corps’ determinations “may be set aside only for substantial procedural or substantive reasons.” Id. We address the appellants’ CWA and NEPA claims in turn below. 1. Consideration of Alternatives Under the Clean Water Act CWA § 404, 33 U.S.C. § 1344, prohibits dredging or filling waters of the United States, including wetlands, without a permit from the Corps authorizing the dredge or fill activity. 33 U.S.C. § 1344(a), (d). The Corps may not issue a § 404(b)(1) permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem,” unless the alternative has “other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). A “practicable” alternative is one that is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). The Corps’ burden in finding the least damaging practicable alternative under the CWA guidelines is heaviest for non-water dependent projects planned for a “special aquatic site,” such as a wetlands area. See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1524 (10th Cir.1992). There, the presumption is that there are “practicable alternatives that do not involve special aquatic sites” and that these alternatives do “have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a)(3). These presumptions hold unless “clearly demonstrated otherwise.” Id. We have thus held that in such a case, the Corps may not issue a § 404 permit unless the applicant, “with independent verification by the [Corps], ... provide[s] detailed, clear and convincing information proving ” that an alternative with less adverse impact is “impracticable.” Utahns for Better Transp., 305 F.3d at 1186-87 (requiring denial of a permit “where insufficient information is provided to determine compliance”); see also Greater Yellowstone I, 321 F.3d at 1262 n. 12 (“[U]nder the CWA, it is not sufficient for the Corps to consider a range of alternatives to the proposed project: the Corps must rebut the presumption that there are practicable alternatives with less adverse environmental impact.”). Citing Utahns for Better Transportation, the appellants argue that the Corps violated 40 C.F.R. § 230.10 by “failing] to require ‘detailed, clear and convincing information’ proving that there was no practicable alternative to the Canyon Club developer’s proposal” and “ignor[ing] obvious alternatives with fewer adverse impacts on the ‘aquatic ecosystem.’ ” Appellants’ Br. at 27. Specifically, the appellants contend that the Corps failed to consider whether the Canyon Club property could be expanded so that certain features of the golf course and housing development could be relocated to the north, on what until now has remained part of the River Bend Ranch, “so as to avoid dredging and filling jurisdictional wetlands, constructing weirs in the Snake River, and related impacts to bald eagles.” Id. at 28. The appellants also suggest the Corps should have considered whether wetland and bald eagle impacts could have been reduced by decreasing the number of home sites in the planned housing development. The appellees respond that the Corps need not have considered these alternatives because, first, they do not serve the project’s purpose of preserving the River Bend Ranch as an operating ranch, and second, the Corps’ analysis reflects an adequate level of effort and documentation in light of the proposal’s expected impact. We uphold the Corps’ § 404(b)(1) alternatives analysis on the latter basis. We first recognize that the Corps, in determining whether to issue a § 404 permit, “ ‘has a duty to take into account the objectives of the applicant’s project,’ ” Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989) (quoting La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985) (per curiam)), as long as this objective is “ ‘legitimate,’” id. (quoting Friends of the Earth v. Hintz, 800 F.2d 822, 833 (9th Cir.1986)). See Nat’l Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1346 (8th Cir.1994) (noting the Corps should not permit developers to “artificially constrain the Corps’ alternatives analysis by defining the projects’ purpose in an overly narrow manner”). However, the burden of proving that a given alternative does not meet the applicant’s objective remains on the applicant when 40 C.F.R. § 230.10(a)(3) applies, and the applicant’s assessment must be critically evaluated by the Corps. See Friends of the Earth, 800 F.2d at 835-36 (recognizing the Corps must rely on information provided by the applicant but must not do so “uncritically”); La. Wildlife Fed’n, 761 F.2d at 1048 (noting the applicant’s burden); Korteweg v. Corps of Eng’rs of the U.S. Army, 650 F.Supp. 603, 604 (D.Conn.1986) (same); Hough v. Marsh, 557 F.Supp. 74, 83-84 (D.Mass.1982) (remanding the Corps’ issuance of a permit where the Corps failed to hold applicants to their burden); Shoreline Assocs. v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983), aff'd, 725 F.2d 677 (4th Cir.1984) (upholding the Corps’ denial of a permit where the applicant “failed to show ... why it is necessary for the [development] to be located on the wetlands rather than the uplands, except for its preference to build on the wetlands”). Here, it is true that one of Canyon Club’s stated purposes in developing the golf course and housing complex was to “[supplement ranching operations on the adjacent River Bend Ranch with income from the Canyon Club in order to continue the working ranch operations.” Appellants’ App. Vol. 2 at 220. The Pioneer § 404(b)(1) analysis, adopted by the Corps, proceeded to explain that: [t]he total amount of acreage available for development by the Canyon Club Development is limited by ownership and availability. Any additional commitment of land to the development would have to be made available by the River Bend Ranch. Any action that reduces the size of the River Bend Ranch to the status of a non-viable ranch operation would trigger the full allowable build-out of all remaining undeveloped property for both the River Bend Ranch and the Canyon Club properties.... Therefore, one of the factors for meeting the purpose and need of the project was to optimize the amount of land required for the project without compromising the viability of the remaining undeveloped property as a working ranch. Id. at 317-18. This statement implies that there is a limit to the amount of Ranch property that could be used for the Canyon Club development without compromising the Ranch’s viability. Yet, none of the alternatives that were considered led Canyon Club or the Corps to examine whether any commitment of Ranch property beyond the 359 acres would exceed this limit, nor does the administrative record contain any eviden-tiary support for such a conclusion. Nevertheless, under the circumstances of this case, we do not hold that the Corps’ failure to require Canyon Club to prove the impracticability of committing more Ranch property to the development renders its decision arbitrary and capricious. The CWA guidelines instruct the Corps to “recognize the different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity.” 40 C.F.R. § 230.6(b). They further state that “[ajlthough all requirements in § 230.10 must be met, the complianee evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities.” Id. § 230.10. Here, the Corps’ level of effort and documentation was in accord with this standard. As required by the CWA guidelines, the Pioneer § 404(b)(1) analysis includes detailed factual determinations on “the nature and degree of effect that the proposed discharge will have ... on the structure and function of the aquatic ecosystem and organisms,” in particular on the “physical, chemical, and biological components of the aquatic environment.” 40 C.F.R. § 230.11(e). Overall, while 1.45 acres of wetlands would be eliminated through fill for construction of golf features and home sites, the function and vegetation diversity of remaining jurisdictional wetlands, comprising 32.65 acres, would improve due to the removal of cattle grazing. Additional wetlands would be added as part of the project’s mitigation efforts; a Snake River tributary, Martin Creek, would be restored, providing new trout spawning habitat; and the bendway weirs, if installed, were predicted to increase riffle and pool complexes on the Snake River, considered a beneficial effect. The Corps also concluded that “all of the alternatives [considered] would have similar effects on ... bald eagles” and that these impacts were not “unacceptable.” Appellants’ App. Vol. 2 at 227. This conclusion was partly based on the Corps’ assessment that the possibility of an “incidental take” of bald eagles was “greatly reduced” by the terms and conditions imposed by FWS on the Canyon Club development. Id. As described above, these restrictions would prohibit construction within 400 meters of a nest containing eagle chicks for the first three weeks after hatching and would otherwise require construction work near the Snake River during nesting season to take place only between 9 am and 6 pm in order to reduce impacts on eagle foraging activities. Any bendway weir construction would have to take place outside the nesting season. Apart from these restrictions, which the Corps legitimately took into account, we understand the Corps’ conclusion to reflect its recognition that the primary cause of the predicted adverse impact on eagles-increased human activity resulting from development on the property-was in a large sense unavoidable. The record indicates that the bald eagles and their progeny cannot be fully protected simply by moving all dredge and fill activities more than 400 meters away from all nests. FWS’ BiOp states that while the area within 400 meters of an occupied eagle nest is the “most sensitive to human disturbance,” the recommended buffer around nests is one mile. Appellants’ App. Vol. 4 at 887. The BiOp indicates that all three nesting territories could be negatively impacted by the proposed action, due to “increased recreational activity, increased overall human intrusion, and changes in habitat quality,” even though no golf course features or housing lots were planned within 400 meters of the active Cabin Creek nest, and only a portion of one hole would lie within 400 meters of the Dog Creek nest. Id. at 847. The Pioneer § 404(b)(1) analysis similarly states that “[development of the Canyon Club property would facilitate activities that could have indirect effects on nesting bald eagles due to disturbance from construction, operation, use of the Canyon Club golf course, and housing development and occupation.” Id. Vol. 2 at 333. These effects would occur under “any of the action alternatives” and would not be “the direct result of filling within wetlands.” Id. Even the “no-action” alternative was predicted to have similar, if not worse, impacts, in light of Canyon Club’s clear assertion throughout the permit application process that were the Corps to deny it a § 404 permit, the River Bend Ranch would likely be dismantled, and its remaining property, along with the Canyon Club property, would likely be converted into a residential "development containing up to 250 houses. Although these houses would not be constructed on top of wetlands or (under the terms of Teton County LDRs) within 400 meters of bald eagle nests, the human intrusion would at least equal that expected from the Canyon Club 359-acre proposal. Moreover, the 332 acres of conservation easements that are associated with the 359-acre proposal and are intended primarily “to provide secure habitat for bald eagles,” id. Vol. 4 at 834, would not be established, and other mitigation measures, such as the use restrictions drafted for the Canyon Club Declaration, might also be abandoned. Thus, even assuming that the appellants’ suggested alternatives may incrementally reduce impacts to bald eagles by removing specific features from the 400-meter radius around their nests, the record suggests that these measures would not be significant relative to the impact on eagles of the development as a whole. We therefore hold that the Corps’ level of effort and documentation in its CWA alternatives analysis and its conclusion that the 359-acre proposal was the least damaging practicable alternative were not arbitrary or capricious. 2. Decision Not to Prepare an EIS Under NEPA While the CWA imposes substantive restrictions on agency action, NEPA imposes procedural requirements aimed at integrating “environmental concerns ... into the very process of agency decision-making.” Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Under NEPA, when a federal agency undertakes a “major Federal action[ ] significantly affecting the quality of the human environment,” it must prepare an environmental impact statement (“EIS”) that details, among other things, the environmental impacts of the proposed action, any adverse environmental effects that would occur as a result, and alternatives to .the proposed action. 42 U-S.C. § 4332(2)(C). When it is unclear whether a proposed action requires an .EIS, the agency may first prepare a less detailed environmental assessment (“EA”). 40 C.F.R. § 1501.4(b). If the EA leads the agency to conclude that the proposed action will not significantly affect the environment, the agency may issue a finding of no significant impact (“FONSI”) and fore-go the further step of preparing an' EIS. Id. § 1501.4(e); see Lee, 354 F.3d at 1237. Here, as described above, the Corps prepared an EA and issued a FONSI. The appellants challenge this decision, claiming that an EIS was required because “the Canyon Club project will wipe out regionally significant bald eagle nests, alter the natural flow of the Snake River, and place major human development in a river corridor deemed eligible for wild and scenic designation.” Appellants’ Br. at 41. “ ‘An agency’s decision to issue .a FONSI and not prepare an EIS is a factual determination which implicates agency expertise.’ ” Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002) (quoting Comm. to Preserve Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1555 (10th Cir.1993)); see Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1225-26 (10th Cir.2002) (“The initial decision as to the necessity of an EIS is the agency’s, not a reviewing court’s.”). Our review of this decision requires us to determine “whether the agency acted arbitrarily and capriciously in concluding that the proposed action will not have a significant effect on the human environment.” Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir.2002) (internal quotation marks omitted). This review, therefore, “has a substantive component” in addition to the procedural determination of whether the agency considered the 'relevant factors. Id. Accordingly, if the appellants “can demonstrate substantively” that the agency’s conclusion “represents a ‘clear error of judgment,’ then that conclusion must be reversed.” Id. (quoting Utah Shared Access Alliance, 288 F.3d at 1213) (further quotation omitted). In determining whether an action will significantly affect the environment, agencies must consider both the context in which the action will take place and the intensity of its impact. See 40 C.F.R. § 1508.27; Utah Shared Access Alliance, 288 F.3d at 1214. Among the factors relevant to this determination, as listed in NEPA’s implementing regulations, are the “[ujnique characteristics of the geographic area [in which the action would take place] such as [its] proximity to ... wetlands, wild and scenic rivers, or ecologically critical areas”; “[t]he degree to which the effects ... are likely to be highly controversial”; “[t]he degree to which the possible effects ... are highly uncertain”; and “[t]he degree to which the action may adversely affect an endangered or threatened species or its [critical] habitat.” 40 C.F.R. § 1508.27(b)(3)-(5), (9). The appellants claim that “[e]ach of these factors required preparation of an EIS in this ease.” Appellants’ Br. at 43. They specifically focus their arguments on the unique value of this stretch of the Snake River for bald eagle nesting, the project’s expected impact on the three eagle nests, and the disagreement between the Corps and other agencies over the impact of bendway weirs. First, in regard to the bendway weirs, the record does not support the appellants’ claim that there was “substantial uncertainty and controversy about the consequences of the bendway weirs.” Appellants’ Br. at 44. The Pioneer EA addressed the impact of the weirs, noting that the choice of weirs as a bank stabilization method was based on Canyon Club’s research of “the best possible means to successfully protect property values and riparian habitat from further erosion without impacting the river channel.” Appellants’ App. Vol. 3 at 433. Other flood control measures, such as installation of dikes or levees of the sort that have been used on upstream portions of the Snake River, were not contemplated, but the record indicates that those measures are considered to have greater river impacts than bendway weirs. The design and function of the weirs at the proposed site were described and assessed in a report prepared by Ayres Associates, a consulting firm. As indicated above, the Corps incorporated the Pioneer EA and referenced the Ayres report in its decision document and approved construction of the weirs with the condition that Canyon Club receive advance approval of the final plans before construction begins. While the EPA raised general concerns about the impact of the weirs and the U.S. Forest Service geomorphologist criticized aspects of the Ayres report, we do not believe these comments obligated the Corps to evaluate the impact of the weirs further in an EIS. Neither comment provides “evidence ... [that] casts serious doubt upon the reasonableness of [the Corps’] conclusions.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir.2001). The Corps responded to these comments by adopting monitoring requirements “to ensure that weirs are functioning as designed” and stated that the weirs would be modified or removed “if unacceptable effects on the Snake River are documented.” Appellants’ App. Vol. 2 at 233. We believe the circumstances here are unlike those considered in National Parks, 241 F.3d at 737, where the court held that a federal agency could not avoid preparing an EIS by promising to study as yet unknown consequences after implementing the action. Here, the Corps asserts that it has sufficient information to conclude that the weirs will not have a significant impact on the river but has adopted monitoring requirements in case its conclusion is wrong. The appellants have not demonstrated that the Corps’ conclusion represents a clear error in-judgment. In regard to bald eagle impacts, the record clearly establishes that this stretch of the Snake River has long been an important and productive bald eagle nesting territory. The fact that FWS has not designated this, or any, territory as the bald eagle’s “critical habitat” does not alone persuade us that its potential destruction should not be considered “significant” for purposes of NEPA. See Middle Rio Grande Conservancy Dist., 294 F.3d at 1224 n. 1, 1226 (discussing difficulties in the process of designating critical habitat). Nor do we consider de terminative FWS’s conclusion that the Canyon Club project was not “likely to jeopardize the continued existence of the bald eagle” as a species. Appellants’ App. Vol. 4 at 851. At the same time, however, FWS’s, issuance of an incidental take statement “anticipating” the loss of some members of a threatened species does not automatically lead to the requirement to prepare a full EIS. See Ramsey v. Kantor, 96 F.3d 434, 437 (9th Cir.1996) (holding that issuance of an incidental take statement was a “major federal action” under NEPA that required an EA, “and possibly” an EIS); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546-47 (11th Cir.1996) (holding that the Corps’ decision not to prepare an EIS in connection with a landfill was not arbitrary where FWS had issued an incidental take statement anticipating that the project would kill up to 130 Eastern Indigo Snakes, a threatened species). As discussed above, the Corps concluded that the conditions imposed by FWS on the Canyon Club development “greatly reduced” the chance that any eagles would in fact be taken, despite the continuing potential for disturbance due to increased human activity in the area. At the time the Corps reached this conclusion, it had before it the Pioneer BA and the FWS BiOp, both of which focused extensively on the project’s impacts on bald eagles. Despite the fact that Snake River Canyon was already a “well-known and extensively studied bald eagle habitat area,” Appellants’ App. Vol. 4 at 838, these documents could not predict with certainty how the resident bald eagles would react to the Canyon Club development. It appears that this uncertainty stemmed not from a lack of thoroughness in investigating potential impacts but primarily from the fact that “[rjesponses of eagles to human disturbances vary depending on the eagle individual/pair.” Id. at 837. Further, although “some eagles in the Snake Unit population have shown some tolerance of human disturbance in the past, ... eagle behavior varies greatly among individuals and by circumstance. Therefore, the past behavior of eagle pairs cannot be used to predict the future behavior of these and other eagle pairs within the Snake Unit.” Id. at 850. The record thus indicates that further assessment of impacts, in an EIS before the project’s implementation is unlikely to be productive. Cf. Nat’l Parks & Conservation Ass’n, 241 F.3d at 737 (requiring an EIS “when there is a reasonable possibility that [the currently lacking] information can be obtained in connection with the preparatory process”); Fund for Animals, 85 F.3d at 546 (concluding that the information already before the Corps, including two FWS biological opinions, demonstrated that the Corps took “a hard look at the project before deciding to fore-go the time and administrative costs of preparing an [EIS]”). At the same time, as we discussed earlier, the project as proposed, and as modified by the conditions imposed by FWS, does incorporate a number of mitigation measures designed to reduce the potential impact on bald eagles. These measures include close daily monitoring of active eagle nests during the construction process, with the requirement that construction activities be modified immediately if eagle disturbance is observed. Moreover, monitoring will continue for five years after .construction is completed in order to evaluate the actual effect on bald eagles of the development as a whole. In light of the evident difficulty in predicting eagle reactions before the Canyon Club development begins, the Corps could justifiably determine that these mitigation measures “constitute an adequate buffer” against adverse impacts to bald eagles so as to “render such impacts so minor as to not warrant an EIS.” Wetlands Action Network, 222 F.3d at 1121; see also Nat’l Parks & Conservation Ass’n, 241 F.3d at 735 (contrasting its circumstances with Wetlands Action Network, where, as here, “the imposition of special conditions, enforced through a permit, and reviewed by various other agencies ensured that the measures would be enforced in a manner that properly reduced negative environmental impact”). Accordingly, we conclude that the appellants have failed to demonstrate that the Corps made a clear error in judgment or did not consider the factors relevant to the project’s impacts on bald eagles. We thus hold that the Corps’ decision not to prepare an EIS was not arbitrary or capricious. 3. Consideration of Alternatives Under NEPA Like the CWA, NEPA requires federal agencies to consider alternatives to a proposed action. 42 U.S.C. § 4332(2)(E). An agency’s obligation to consider reasonable alternatives is “operative even if the agency finds no significant environmental impact.” Highway J Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir.2003) (internal quotation marks omitted); see Davis, 302 F.3d at 1120 (“A properly-drafted EA must include a discussion of appropriate alternatives.” (citing 40 C.F.R. § 1508.9(b))). Unlike the “least damaging practicable alternative” requirement under the CWA, however, the NEPA analysis “ ‘does not mandate particular results.’ ” Lee, 354 F.3d at 1237 (quoting Utahns for Better Transp., 305 F.3d at 1162). In our review under NEPA, therefore, we only consider whether an agency’s decisions regarding which alternatives to discuss and how extensively to discuss them were arbitrary, keeping in mind that such decisions are “necessarily bound by a ‘rule of reason and practicality.’ ” Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 432 (10th Cir.1996) (quoting Comm. to Preserve Boomer Lake Park, 4 F.3d at 1551); see Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991). Our goal is to ensure that the agency gathered “information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned.” Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999) (internal quotation marks omitted). The appellants allege that the Corps’ consideration of alternatives violated NEPA because it “was rigged from the start” to favor Canyon Club’s preferred 359-acre proposal. Appellants’ Br. at 22. Specifically, the appellants claim that all the alternatives considered, except for the 359-acre proposal, were “non-starter[s]” because they either violated county LDRs or failed to serve the project’s stated purpose. Id. at 24-25. The appellants thus compare the Corps’ discussion of alternatives here to that in Davis, 302 F.3d at 1122, where we rejected as inadequate an agency’s “conclusory and perfunctory” dismissal of alternatives that left only the proposed action and a no-build alternative to be considered in detail in an EA. We do not believe the comparison with Davis is apt. Davis involved construction of a five-lane highway over a six-block distance and the failure of the agency involved to consider any alternative location for this new road, or any modification to the project design that had potential to mediate its impact. Id. at 1119-20. We ruled that this failure was arbitrary in light of what we discerned was the project’s “general overarching objective of improving traffic flow in the area,” in addition to record evidence suggesting two viable alternative locations. Id. at 1119. Here, in contrast, the record indicates that, by the time the Corps’ EA was prepared, Canyon Club and the Corps had seriously considered various alternatives. As described above, the 286-acre proposal was originally the preferred alternative. As a result of “facilitation meetings with members of the public who had expressed opposition to the project,” Appellants’ App. Vol. 3 at 390, discussions with the Teton County Planning Staff concerning the development of LDRs for golf courses, and input from the Corps, Canyon Club first considered a minor adjustment to the 286-acre design, then agreed to redesign the development using additional Ranch land. The 359-acre proposal emerged from this process. The Pioneer EA discusses the alternatives that were considered and rejected during these negotiations. These included the modified 286-acre alternative and a nine-hole golf course alternative rejected because there was no market for nine-hole golf courses. The Pioneer EA then assesses impacts associated with a no-action alternative, the 286-acre proposal, and the 359-acre proposal. As in the § 404(b)(1) analysis described above, its discussion of the “no-action” alternative assumes that failure to obtain a permit will result in full residential development on the Canyon Club and River Bend Ranch properties. The Pioneer EA notes that the 286-acre proposal “is included in this document because ... it remains a viable alternative, from the perspective of [Canyon Club].” Id. at 391. The Corps’ EA/decision document incorporated this analysis and also discussed, but rejected as infeasible, the possibility of locating the development elsewhere in Teton County. These documents thus reflect the fact that, by the time they were prepared, it was largely recognized that the 359-acre proposal was the only alternative considered that would satisfy the newly-formulated Teton County LDRs and the project’s purpose. However, this does not appear to be the result of “defining the objectives of [the project] in terms so unreasonably narrow they can be accomplished by only one alternative.” Colo. Envtl. Coalition, 185 F.3d at 1174. Canyon Club’s own description of the purpose of its project included its desire to preserve River Bend Ranch by obtaining income from an eighteen-hole golf course and upscale’ residential development while also minimizing the impacts of development on scenery and the environment. The Corps reviewed this description and largely adopted it after determining that “there is a market need for the project and that the project is economically viable.” Appellants’ App. Vol. 2 at 220. We do not believe Canyon Club’s description of purpose is so narrow or unbalanced that the Corps, by accepting it, abdicated its own “responsibility for defining the objectives of an action.” Colo. Envtl. Coalition, 185 F.3d at 1175. As indicated above, the appellants have submitted extra-record evidence in the form of the Speidel affidavit, which claimed that the Canyon Club development could be reconfigured so as to move all housing and golf course features up to one mile away from the active Cabin Creek nest and at least 400 meters away from the other nests. While in some circumstances such evidence may be admissible in order to illuminate whether an agency has “failed adequately to discuss some reasonable alternative,” Lee, 354 F.3d at 1242 (internal quotation marks omitted), we do not believe the district court erred in refusing to consider the Speidel declaration in light of the sliding scale by which we must measure an agency’s obligations under NEPA. See Highway J Citizens Group, 349 F.3d at 960. When an agency “makes an informed decision that the environmental impact will be small, a view which we are required to accord deference,” and which here we have already upheld, “a less extensive search [for reasonable alternatives] is required.” Id. (internal quotation marks omitted). As the Corps did not have Speidel’s suggested alternatives before it, it did not act arbitrarily in failing to consider them. At oral argument, the appellants pointed out that they, and the public in general, did not have access to a description of the alternatives that were under consideration before the public comment period ended on December 20, 2001. It is true that the Corps’ public notice did not describe any alternatives, and the record does not indicate that the Pioneer EA, other Pioneer documents, or the FWS BiOp were made available to the public before the Corps issued its decision. The notice did, however, include maps detailing the layout of the 359-acre proposal. It also stated that “the project is likely to adversely affect bald eagles.” Appellants’ App. Vol. 2 at 257. Further, NEPA’s public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS. Compare 40 C.F.R. § 1503.1, .4 (requiring agencies preparing an EIS to make an initial draft available for public comment and to consider “[d]evelop[ing] and evaluating] alternatives not previously given serious consideration” in response to comments), with id. § 1501.4(b) (requiring agencies to “involve ... the public, to the extent practicable, in preparing [EAs]”); id. § 1501.4(e)(2) (requiring agencies to make a FONSI available for public review prior to their final decision only in specific cireumstances not applicable here); see also Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d 1235, 1238-39 (2d Cir. 2002) (holding plaintiffs were unlikely to succeed on their claim that the Corps “erred by failing to release its draft EA and FONSI for public comment prior to them issuance”). We therefore reject this argument as grounds for holding that the Corps acted arbitrarily. We thus uphold the Corps’ consideration of alternatives under NEPA. CONCLUSION Having thoroughly reviewed the administrative record, we AFFIRM the decision of the district court and uphold the Corps’ issuance of a § 404 permit in this case. . The Snake River Fund is listed as a plaintiff-intervenor but has not filed a brief in this proceeding. . After significant recovery, the bald eagle's status was upgraded to "threatened” in 1995, 60 Fed.Reg. 36000, and was proposed for delisting in 1999, 64 Fed.Reg. 36454. As of this date, the proposal has been neither adopted nor withdrawn. According to the U.S. Fish and Wildlife Service ("FWS"), the bald eagle is listed as a Native Species Status 2 by the Wyoming Game and Fish Department "due to on-going significant habitat loss within the State.” Appellants' App. Vol. 1 at 35. . The Supreme Court established the extent of the Corps' jurisdiction over wetlands in Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). . The proposal indicated that golf course employees would be housed at the neighboring Snake River Canyon Ranch. Although the record is unclear on this point, it appears the Snake River Canyon Ranch is also owned by the Edgcombs or Canyon Club. . Of the 1.45 acres to be filled, .87 acre is for homesite lot development, .06 acre for cart path construction, .43 acre for hole and tee construction, .08 acre for water feature construction, and .01 acre for bendway weir construction. The entire 1.71 acres to be dredged is for water feature construction. .These easements would be in addition to an 85-acre conservation easement on the Snake River Canyon Ranch and a 48-acre conservation easement on the River Bend Ranch that are already in place and protect elk migration corridors. . The notice also indicated that "[a]ny person may request, in writing and within the [thirty-day] comment period,” a public hearing "for the purpose of gathering additional information.” Id. at 258. No request for a hearing was made, and none was held. . Helicopters have picked up skiers from Snake River Canyon Ranch, transported them to ski slopes, and returned them to the Ranch since approximately 1977. Three to eight flights a day generally occur from December to April. Id. Vol. 4 at 668. Flights are projected to increase in frequency due to development of residential housing on Snake River Canyon Ranch. . The assessment noted that the anticipated development of residential housing on the River Bend Ranch might disrupt migration routes and winter range habitat for elk, moose, mule deer, and perhaps trumpeter swans. . This restriction applies where the dredge or fill is "incidental to any activity having as its purpose bringing an area of [jurisdictional] waters into a use to which it was not previously subject.” Id. § 1344(f)(2). Thus, "normal farming, silviculture, and ranching activities,” as well as certain maintenance activities, are excluded from the permit requirement. Id. § 1344(f)(1). . Section 404(b)(1) directs that most permits be issued in compliance with guidelines ("CWA guidelines”) developed by the Environmental Protection Agency, in conjunction with the Corps. 33 U.S.C. § 1344(b)(1). These guidelines are published in 40 C.F.R. Part 230. The Corps' own regulations governing issuance of permits direct that § 404(b)(1) permits be issued in accord with these guidelines. 33 C.F.R. §§ 320.2(f), •4(b)(4). . In light of the applicant’s burden under the CWA, we accept for purposes of this discussion the appellants’ contention that these alternatives are sufficiently obvious that they need not have been suggested to Canyon Club or the Corps prior to issuance, of the § 404 permit to be considered here. We address the admissibility of the Speidel affidavit below in our discussion of the Corps’ compliance with NEPA. . In the TRO hearing before the district court, Mr. Edgcomb did claim that any further reduction in the size of the Ranch would destroy its ability to operate as a ranch. No evidence was produced in support of this claim, however. Moreover, Mr. Edgcomb's statement at the hearing is not part of the administrative record before us. . For this conclusion on the impact of bend-way weirs, Pioneer and the Corps relied on a study prepared by Ayres Associates which found significant erosion and thus the possible need for bank stabilization using bendway weirs on two locations on the Canyon Club property. The study concluded that the weirs would "creat[e] and enhance[] aquatic habitat.” Appellants' App. Vol. 2 at 206. As the appellants indicate, the beneficial impact of the weirs was questioned by the EPA and by a U.S. Forest Service geomorphologist in their responses to the 359-acre proposal. They noted that the weirs may cause channel migration or erosion downstream, on the opposite bank, or on islands currently located in this portion of the Snake River. The Corps acknowledged these comments in its decision document but noted that it would "adopt monitoring requirements to ensure that weirs are functioning as designed and may require modification or removal of weirs if unacceptable effects on the Snake River are documented.” Id. at 233. The Corps concluded that "the proposed bendway weir construction is not likely to adversely affect the proper function of the Snake River and associated floodplain.'' Id. The Corps is entitled to rely on its own experts even when their opinions conflict with those of other federal agencies, as long as its decisions are not arbitrary and capri: cious; Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th Cir.2004). . We note that our understanding of the Corps' analysis differs from that of the district court. We disagree with the district court's assertion that environmental impacts of "upland aspects of the overall project" are never relevant to the Corps' analysis under the CWA guidelines. Order on Pet. for Review of Agency Action, No. 02-CV-1036-D, slip op. at 10 (D.Wyo.2003). First, the district court appears to have misread the record on this point. It quoted language in the Corps’ decision document that, the court asserted, presented a contrast between discharge impacts and upland impacts. In fact, this language merely explains the difference between the analyses required under NEPA and under the CWA guidelines. The Corps states: "Under the guidelines, the analysis is conducted with an emphasis on aquatic resources which is more integral [than effects on various other public interest factors] to the Corps’ authority regarding permit decisions.” Appellants' App. Vol. 2 at 233. We understand the phrase "aquatic resources” to encompass the physical, chemical, and biological characteristics of the aquatic ecosystem, in accord with the CWA's goal and as laid out in 40 C.F.R. Part 230 Subparts C and D. Second, the district court's upland/discharge distinction was evidently drawn from case law excluding independent upland developments from the scope of the Corps' NEPA analysis. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1115-17 (9th Cir.2000); Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394, 396, 400 (9th Cir.1989). The distinction does not appropriately apply to the CWA alternatives analysis, which, again, focuses on impacts to the "aquatic ecosystem.” 40 C.F.R. § 230.10(a). The CWA guidelines define "aquatic ecosystem” to mean "waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.” Id. § 230.3(c). Guideline § 230.30 acknowledges that "nesting areas, protective cover, adequate and reliable food supply, and resting areas for migratory species” may be "[e]l-ements of the aquatic habitat” that are "particularly crucial to the continued survival of some threatened or endangered species.” Id. § 230.30(b)(2). A discharge of dredged or fill material may adversely affect these species either by directly impacting these elements, id., or by "[facilitating incompatible activities,” id. § 230.30(b)(3) (emphasis added). Thus, here, the Corps' § 404(b)(1) analysis should, and we believe did, take into account the impact of the Canyon Club development as a whole on bald eagle nesting and foraging habitat. . The appellees cite this statement as evidence that bald eagles are not part of the "aquatic ecosystem” in question, pointing also to the further statement in this section of the § 404(b)(1) analysis that "[the bald eagle does not] directly depend on these wetlands, although [it] is significantly dependent on the Snake River as a source for food.” Appellants' App. Vol. 2 at 333. The appellees evidently agree that bald eagles are part of the Snake River aquatic ecosystem but distinguish this from the ecosystem of the adjacent wetlands. Since the Corps never made such a distinction explicit in the administrative record and instead considered impacts of the project as a whole on bald eagle habitat, we decline to address the issue further here. Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 91 (10th Cir.1993) (" 'The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.’ ” (quoting SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943))). . Although the appellants mention that the portion of the Snake River adjacent to the Canyon Club property is eligible for wild and scenic river designation, they do not explain how the Canyon Club development would affect this eligibility. We therefore do not address this argument beyond noting that the Corps’ decision document indicates its awareness that the river within Snake River Canyon is considered eligible. See Appellants' App. Vol. 2 at 228. . We also note that, as indicated above, after notice of the original 286-acre proposal was issued, a series of meetings took place between Canyon Club and others, including environmental groups, regarding various possible alternatives and how to reduce bald eagle impacts. The record does not indicate whether the appellants were involved in these discussions. However, in its response to the notice of the 359-acre proposal, one of the appellants, the Jackson Hole Conservation Alliance, indicated its awareness of the original proposal, stating that Canyon Club had “clearly made a concerted effort to ... address several of our previously unresolved wildlife ... concerns.” Appellants' App. Vol. 2 at 307. The response also incorporated comments by Jackson Hole Trout Unlimited recognizing the potential for the incidental take of two eagle nests and thus urging "rigorous mitigation and responsible monitoring.” Id. at 303.

Sierra Club v. U.S. Army Corps of Engineers

ANDERSON, Circuit Judge: The Sierra Club and several individually named plaintiffs (“Sierra Club”) brought suit against the United States Army Corps of Engineers (“Corps”) and the Florida Department of Transportation (“FDOT”) seeking to halt construction of the Sun-coast Parkway, a 41.6 mile, four-lane toll-road that runs north-south from Hillsbor-ough County, Florida through Pasco and Hernando Counties. Sierra Club argues that the Corps failed to comply with the procedural requirements of Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536. Granting summary judgment in favor of the Corps and FDOT on the issues now before us, the district court entered final judgment. Sierra Club appeals. We affirm. I. FACTS A. Legal Background 1. The Endangered Species Act The Endangered Species Act, 16 U.S.C. §§ 1531-1544, charges federal agencies to carry out the Congressional policy of conserving endangered or threatened plant and animal species. To that end, Section 7 of the ESA requires every federal agency to insure that its actions are not likely to jeopardize the continued existence of any species which has been listed as endangered or threatened. 16 U.S.C. § 1536(a)(2). Every agency is required to verify that its actions will not jeopardize any land-based listed species by consulting with, and obtaining the assistance of, the Secretary of Interior, acting through the Fish and Wildlife Service (“FWS”). Id. Using “the best scientific and commercial data available,” an agency must determine if any listed species may be present in the area affected by a proposed project, and must confer with the Secretary whenever an action is likely to affect such a species. 16 U.S.C. § 1536(a). Implementing regulations establish that an agency “action” includes “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States.” 50 C.F.R. § 402.02. This definition specifically includes the granting of permits. Id. The ESA provides that consultation with the Secretary may occur in cooperation with a prospective permit applicant if it is believed that a listed species may be affected by the proposed project. 16 U.S.C. § 1536(a)(3). That consultation, and any opinions which are issued as a result, is treated as a consultation between the agency and FWS, as required by 16 U.S.C. § 1536(a)(2), provided that no significant changes to the action have been made between the time of the consultation and the actual permitting of the action. 16 U.S.C. § 1536(b)(3)(B). As part of the consultation requirement, the agency is required to ask FWS in writing, whether, in its opinion, a listed or proposed species may be present in the action area. 16 U.S.C. § 1536(c)(1). If FWS responds that no protected species are present, the consultation requirement ends. If, however, FWS responds that there may be an endangered or threatened species in the action area, the agency is required to prepare a biological assessment (“BA”), which identifies any listed species within the area and evaluates the potential effects of the action on those species. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.02. The BA requirement can be fulfilled as part of the agency’s procedural requirements established by the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4332, which are described below. 16 U.S.C. § 1536(c)(1). According to the implementing regulations, a BA is also required for all federal actions which constitute a “major construction activity,” whether or not a listed species is suspected in the area. 50 C.F.R. § 402.12(b)(1). A “major construction activity” is defined as “a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in [NEPA, 42 U.S.C. § 43S2(2)(C)].” 50 C.F.R. § 402.02. The term “major” reinforces the term “significantly,” but has no meaning independent of it. Andrus v. Sierra Club, 442 U.S. 347, 364 n. 23, 99 S.Ct. 2335, 2344 n. 23, 60 L.Ed.2d 943 (1979); 40 C.F.R. § 1508.18. The regulations promulgated to institute NEPA also specifically provide that “major” actions include approving permits for construction. 40 C.F.R. § 1508.18(b)(4). If the BA reveals no potential jeopardy to a listed species, and FWS either agrees or proposes alternatives which would eliminate any jeopardy it perceives, the project may proceed. 50 C.F.R. § 402.12(k)(l). As part of the “no jeopardy” finding, the FWS may issue an incidental take permit, which authorizes incidental taking of the species and specifies the taking’s impact, any “reasonable and prudent” minimizing measures that must be implemented, and the terms and conditions imposed upon the agency or permit applicant. 16 U.S.C. § 1536(b)(4). If, on the other hand, the BA does reveal a potential impact on a listed species, the agency must initiate “formal consultation” with FWS. 50 C.F.R. § 402.14. Formal consultation requires FWS to review the available data and evidence, evaluate the status of the species and the potential effects of the agency action, and formulate a biological opinion, which states whether the action and its cumulative effects is likely to jeopardize the continued existence of the species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-(h). If potential jeopardy to a species exists, the FWS may suggest “reasonable and prudent alternatives” which the agency might take to avoid harming the species. 16 U.S.C. § 1536(b)(3)(A). An incidental take permit may be issued if the alternatives offered will sufficiently minimize the impact to remove the potential jeopardy to the species. 16 U.S.C. § 1536(b)(4)(A); 50 C.F.R. § 402.14(i)(l). 2. The National Environmental Policy Act Agencies are also required by statute to consider the environmental consequences of their actions more generally. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d, is not a substantive environmental statute which dictates a particular outcome if certain consequences exist. Instead, NEPA creates “a particular bureaucratic decisionmaking process.” Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir.1989). Section 102(2), 42 U.S.C. § 4332(2)(C), contains a Congressional mandate that federal agencies consider the environmental impact, and potential alternatives, for every proposed “major Federal action significantly affecting the quality of the human environment.” It is an “action-forcing” provision designed to prevent agencies from acting on incomplete information and to “ensure[ ] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). The first requirement NEPA imposes on an agency is to determine whether an action is a “major” action with a “significant effect.” This determination requires preparation of an environmental assessment (“EA”). Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998); 40 C.F.R. § 1501.3. The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact (“FON-SI”). If the latter conclusion is reached, the agency issues a FONSI, which incorporates the EA and explains why the action will not have a significant effect on the human environment. 40 C.F.R. § 1508.13. If the conclusion in the EA is that the action will have a significant effect, then the project is “major,” and the agency must prepare an environmental impact statement (“EIS”), as described in 42 U.S.C. § 4332(2)(C). The EIS must “provide full and fair discussion of significant environmental impacts.” 40 C.F.R. § 1502.1. It is to “be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.” Id. The discussion should include any potential impact on endangered or threatened species. Part of the EIS process is determining the appropriate scope of the analysis required. This is accomplished by considering exactly what type of action is involved, its direct and indirect impacts, and potential alternatives. The scope may also depend upon the relationship of the EIS to other environmental impact statements. If an action is a component of a larger project, an agency may “tier” its EIS’s in order to “eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for discussion.” 40 C.F.R. § 1502.20. This is accomplished by incorporating earlier statements into the new analyses, and focusing only on what has not previously been considered. Tier-ing is also appropriate where a broad EIS has already been prepared and the agency is now considering specific aspects of a proposal. Agencies are not required to duplicate the work done by another federal agency which also has jurisdiction over a project. NEPA regulations encourage agencies to coordinate on such efforts. As early as possible, a lead agency should be designated. Other involved agencies are designated “cooperating agencies.” 40 C.F.R. § 1501.6. A lead agency, who ultimately signs the EIS, is responsible for ensuring the involvement of all other agencies involved and supervising the EIS preparation. 40 C.F.R. §§ 1501.5(a), 1501.6(a). The lead agency shall use the environmental analyses of the cooperating agencies “to the maximum extent possible.” 40 C.F.R. § 1501.6(a)(2). Cooperating agencies are permitted to adopt an EIS signed by the lead agency, provided they undertake “an independent review of the statement” and determine that their “comments and suggestions have been satisfied.” 40 C.F.R. § 1506.3(c). If, after the original EIS is prepared, the agency “makes substantial changes in the proposed action that are relevant to environmental concerns,” or if there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” the agency is required to prepare a supplemental environmental impact statement (SEIS). 40 C.F.R. § 1502.9(c)(1). The standard for determining when an SEIS is required is “essentially the same” as the standard for determining when an EIS is required. Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. Unit A July 1981). If “ ‘the post-[original EIS] changes in the [project] will have a “significant” impact on the environment that has not previously been covered by the [original] EIS,’ ” a supplement is necessary. Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 782 (11th Cir.1983) (quoting Envtl. Def. Fund, 651 F.2d at 991). 3. Standard of Review The procedural requirements of the ESA correspond, and overlap with, the procedural requirements of NEPA. Challenges brought under either statute are reviewed by the arbitrary and capricious standard, as defined by the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under this standard, the appellate court gives deference to the agency decision by reviewing for clear error, and by refraining from substituting its own judgment for that of the agency. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). However, the court must also look beyond the scope of the decision itself to the relevant factors that the agency considered. Id. at 43, 103 S.Ct. at 2866-67. Its duty is to ensure that the agency took a “hard look” at the environmental consequences of the proposed action. North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1541 (11th Cir.1990). This duty requires the court to consider not only the final documents prepared by the agency, but also the entire administrative record. Mo. Coalition for the Env’t v. Corps of Eng’rs of the U.S. Army, 866 F.2d 1025, 1031 (8th Cir.1989). An agency has met its “hard look” requirement if it has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. at 2866. The court will overturn an agency’s decision as arbitrary and capricious under “hard look” review if it suffers from one of the following: (1) the decision does not rely on the factors that Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise. Id., 103 S.Ct. at 2867. If the court finds deficiencies in the agency’s reasoning, it may not rectify them or provide a reasoned basis for the agency decision which the agency itself has not'1 articulated. Id., 103 S.Ct. at 2867. Instead, it must remand to the agency so that it may reconsider its own reasoning and decision. B. Factual Background Planning for the Suncoast Parkway began in 1988. It involved a cooperative effort between FDOT, the Federal Highway Administration (FHWA), and the Corps. A draft environmental impact statement was proposed in 1992, and public hearings were held. Sierra Club did not participate in the hearings. Sixteen potential alignments for the Parkway were discussed in the draft EIS. Because of the potential existence of the eastern indigo snake in the action area, FDOT initiated formal consultation with FWS, pursuant to Section 7 of the ESA. After FWS expressed concerns over the methodology used to evaluate' the potential impact on two listed species, the Florida scrub jay and the red-cockaded woodpecker, additional surveys and a revised biological assessment were also prepared. The formal consultation resulted in a biological opinion, issued in 1993 by the FWS (“1993 biological opinion”), which concluded that the continued existence of the eastern indigo snake was not likely to be jeopardized by the Parkway. The biological opinion included an incidental take permit for the eastern indigo snake, and specific instructions for what steps the contractors must take if a snake were encountered. The conclusion of FWS was based in part of FDOT’s agreement to purchase and preserve 2700 acres of upland and wetland suitable for preserving the snake. In August, 1994, a final EIS (“1994 EIS”) was issued by the FHWA, FDOT, and the Corps, which included the final selection of the site for the Parkway. As the road was to be fully funded by the State of Florida, the FHWA terminated its participation. As a means of facilitating the final planning of the Parkway and “preserving the balance between Florida’s environmental protection objectives and the state’s transportation needs,” an informal partnering process was organized. Participating agencies included FDOT, the Corps, FWS, the Southwest Florida Management District, the Florida Game & Fresh Water Fish Commission, and engineering and environmental consulting firms. Quarterly meetings were held to evaluate aspects of the project, including the avoidance and minimization of environmental impacts. As a result of the partnering process, the alignment of a portion of the road was altered and the overall length was shortened, thereby reducing wetland impact. The partnering process also resulted in the development of a mitigation plan, which included the creation of eight wildlife under-crossings and the preservation of two areas — the 3,635-acre Anclote River Ranch and the 6,533-acre Serenova Tract. In accordance with the plan, FDOT agreed to place a conservation easement on the mitigation property and to give $50,000 to the Southwest Florida Water Management District for wetland study and enhancement of the mitigation property. Beginning in August, 1996, FDOT submitted several joint applications for the necessary permits, including the federal dredge and fill permit which is the responsibility of the Corps. A single application for the entire project was not submitted. Rather, FDOT submitted a separate application for each section of the Parkway. Each application did, however, lay out both the entire scope of the project and the proposed mitigation plan. The segmentation was done primarily in order to deal with surface and storm water concerns in the state permitting process. Despite the ‘manner in which they were submitted, the Corps regarded the applications as components of a single application, with subsequent sections to be treated as modifications to the original permit. Although it did give separate public notice of each application, the Corps administered the applications through the use of a single permit number. Sierra Club raised no objections during the public comment period on any of the segments of the application. In September, 1996, the Corps initiated informal consultation with FWS, pursuant to Section 7 of the ESA, regarding the potential impact of the Parkway on several species, including the red-eockaded woodpecker, the Florida scrub jay, the eastern indigo snake, and the wood stork. The FWS responded that the proposed Parkway was not likely to affect any of the species except the eastern indigo snake. FWS then referenced its 1993 biological opinion and informed the Corps that “[t]he proposed compensation plan is consistent with the reasonable and prudent measures and terms and conditions of that opinion.” It concluded by informing the Corps that its Section 7 consultation requirements had been fulfilled. The Corps then prepared an environmental assessment for each of the four segments included in the application. In considering each section, the Corps defined the project in its entirety. Discussion of alternatives, avoidance, minimization, and compensation in the later EAs referred back to the earlier EAs as in each instance “the review was done for the entire 41.6-mile length of the road.” The EAs also incorporated portions of the 1993 biological opinion, and specifically relied on the 1994 EIS, the extensive partnering process, and the mitigation plan. It is clear from the EAs, as well as other documentation in the administrative record, that the altered alignment of the road was adopted to further minimize the impact of Parkway. After completing its review and assessing the potential environmental impacts, in January, 1997, the Corps determined that an EIS was not necessary and issued a FONSI for each segment included in the application. A single dredge and fill permit was issued to FDOT in December, 1997. Applications for later sections of the Parkway were treated as modifications to the original permit. Public notice was issued for each modification, and at no time did FWS or Sierra Club respond with any objections. Each modification was subsequently approved. Construction of the Parkway began in August, 1998. Throughout the ten years of planning, there were at least 6 public notices issued. At no point throughout the process did Sierra Club respond or provide comments to the agencies involved. In October, 1998, Sierra Club initiated its first contact with the agencies by sending the Corps a notice of intent to sue. This was 22 months after the first FONSI was issued, ten months after the permits were issued, and two months after construction began. Sierra Club filed its suit in March, 1999, alleging in part that the Parkway would, in fact, affect four species that the Corps had determined were not present in the project area: the Florida panther and three kinds of plants, the Brooksville bellflower, Cooley’s water-willow, and Britton’s beargrass. In response to the suit, the Corps initiated a third consultation with FWS in order to confirm the earlier determination that the project would not affect those four species. The Corps also requested confirmation that the 1996 consultation had included the entire project in its scope. FWS confirmed that the four species would not be adversely affected, the 1996 consultation covered the entire project, and that the Corps’ Section 7 requirements had been fulfilled. Sierra Club sought to enjoin further construction of the Suncoast Parkway not only because of the effects on the four species, but also due to 'alleged violations by the Corps of NEPA, the Administrative Procedure Act, the Clean Water Act, and the ESA. Because the Parkway was partially completed, FDOT intervened. The district court denied Sierra Club a preliminary injunction, and we affirmed, on the grounds that the doctrine of laches precluded that extreme relief, and because Sierra Club had failed to demonstrate a sufficient threat of harm to any endangered or threatened species to justify an injunction. All of Sierra Club’s claims have since been resolved, with the exception of their claim that Section 7 of the ESA has been violated. Summary judgment with respect to the Section 7 claims was entered in favor of the Corps and FDOT, from which Sierra Club now appeals. Sierra Club’s primary argument on appeal is that the Corps failed to prepare a biological assessment as required by Section 7 of the ESA for all major construction activities. We first discuss that argument, and then turn to Sierra Club’s remaining challenges. II. DISCUSSION A. The Biological Assessment Sierra Club argues that the Corps was arbitrary and capricious in not preparing a biological assessment as part of the permit approval process. It asserts that the existence of the 1993 BA conclusively establishes that the Parkway is a major federal construction project which requires an agency to prepare a BA before taking action. In the alternative, it also argues that because the alignment of the road was changed, the Corps was required to develop a supplemental EIS and a new BA. Because we are satisfied that the Corps complied with the statutory requirements for a major construction activity, we can assume arguendo that the- Parkway is a major federal action. As a preliminary matter, we must clarify the relationship between a biological assessment, as described in the ESA, and an environmental impact study, as described in NEPA. A BA is prepared in order to evaluate the impact of an action on a threatened or endangered species. The ESA specifically provides that the BA requirement can be fulfilled as part of the procedural requirements established by NEPA. 16 U.S.C. § 1536(c)(1). When an agency prepares an EIS, it is complying with the BA requirement, provided that one of the environmental impacts discussed is the impact on threatened and endangered species. Because the 1994 EIS does evaluate the impact of the road on listed species, the initial BA requirement was satisfied. If new information regarding endangered species became available, or if environmental consequences not already evaluated came to light, the Corps would have been required to prepare a new BA or an SE IS. It would not, however, have been required to prepare both. We will analyze Sierra Club's challenge first by demonstrating that the Corps complied with the statutory requirements for a "major construction activity," and then by asking whether the Corps should have prepared a supplemental EIS. The administrative record establishes that the Corps did fully comply with the requirements established by NEPA and the ESA for a major project with significant effects on the human environment. First, it acted as a cooperating agency in the preparation of the 1994 EIS. Second, it remained involved in the planning process throughout the development of the mitigation plan and the other methods to avoid and minimize the impact of the Parkway. Third, the Corps acted both efficiently and consistently with NEPA regulations by incorporating the previous studies into its current analysis. The 1997 EAs all incorporate portions of the 1993 biological opinion and rely on the 1994 EIS, as well as the work done during the partnership process. The initial 1997 BA, prepared January 6, 1997, extensively referred to and relied upon the 1994 EIS and the 1993 biological opinion. Indeed, the "reasonable and prudent measures" and "terms and conditions" detailed by FWS in the 1993 biological opinion were incorporated verbatim, with notations describing the changes being made to increase the mitigating effects. Subsequent EAs in 1997 referred back to this January 6, 1997 BA and the 1994 EIS. Such reliance on a previous EIS is specifically authorized. Regulation 40 C.F.R. § 1502.20, entitled "Tiering" provides in relevant part: Whenever a broad environmental impact statement has been prepared ... and a subsequent ... environmental assessment is then prepared on an action included within the entire program the subsequent . .. environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference. See also 40 C.F.R. § 1508.28; 50 C.F.R. § 402.12(g); 33 C.F.R. § 230.13(c). Thus, it is clear from the administrative record that the Corps had before it a full picture of the environmental consequences of the Suncoast Parkway. It concluded in the EAs that given the alterations to the project and the mitigation plan, the environmental impacts of the Parkway were no longer significant. We have previously affirmed the validity of such a decision, where, as here, the mitigation measures are a condition of agency approval. C.A.R.E. Now, Inc. v. F.A.A., 844 F.2d 1569, 1575 (11th Cir.1988) (“When mitigation measures compensate for otherwise adverse environmental impacts, the threshold level of ‘significant impacts’ is not reached so no EIS is required.”). Given the mitigation and the beneficial alterations to the project, the Corps did not act arbitrarily and capriciously in determining that a supplemental environmental impact statement was not required. The Corps fully complied with its NEPA requirements. As the ESA provides that the BA requirement may be satisfied through NEPA procedures, the Corps also fulfilled its ESA requirements. We also reject Sierra Club’s alternate argument that the change in the road alignment created a substantially new project requiring a new BA (or, in the alternative, an SEIS). The new alignment did not create a new project. It altered the existing project in such a way as to further minimize its environmental impact. As the 1997 EAs explain, the new alignment of the road was adopted by the partnering organizations as a means of minimizing the impact described in the 1994 EIS. A 1996 letter from FWS to the Corps supports this conclusion. In the letter, the FWS informs the Corps that “[t]he proposed compensation plan is consistent with the reasonable and prudent measures and terms and conditions of [the 1993 biological] opinion.” It was. partly on this basis that FWS concluded that the Corps had fulfilled its Section 7 requirements. When an agency implements a minimizing measure, it is not automatically required to redo the entire environmental analysis. A supplemental EIS is required only when “the post-[original EIS] changes in the [project] will have a ‘significant’ impact on the environment that has not previously been covered by the [original] EIS.” Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 782 (11th Cir.1983); 40 C.F.R. § 1502.9(c)(1). In the case of the realignment, the new route was entirely within the study area of the 1994 EIS. Any environmental impacts from the new alignment were covered within the 1994 EIS. Thus, the Corps was not required to undertake a new EIS. Nor do we see any other changes to the Parkway project, made subsequent to the 1994 EIS, that are “significant,” such as to require an SEIS. The 1994 EIS, which included only a conceptual mitigation plan, envisioned the set-aside of 1795 acres of specific tracts for preservation, the acquisition of 45 acres for enhancement or restoration, and 165 acres for creation of new wetlands. The changes made after 1994 minimize the impact of the road and focus on conserving wetlands, rather than altering the existing landscape. The final plan set aside 10,168 acres for conservation, which encompasses a larger area surrounding the specific tracts identified in the 1994 EIS. Unlike the mitigation package in National Wildlife Federation v. Marsh, this conservation does not create “change in the character of the land itself.” 721 F.2d at 783. By establishing conservation easements over tracts of land specifically purchased to compensate for the wetlands lost to the Parkway, the conservation portion of the mitigation plan does not create any significant impact on the environment. The mitigation plan also provides for wildlife underpasses, which is an alteration to the construction plans for the road, and also does not create a significant impact on the surrounding environment. We note that considerable time and resources were saved by the partnership process. By contributing its input and maintaining involvement throughout the development of the Suncoast Parkway, the Corps not only developed an adequate record of the environmental consequences, but also helped ensure that the road would have as minimal an impact as possible. We are satisfied that the Corps fulfilled its statutory requirements under both the ESA and NEPA. B. The Remaining Challenges Sierra Club makes three additional claims which are essentially challenges to decisions by other agencies. Sierra Club bears a difficult burden in proving the Corps was arbitrary and capricious in relying on these decisions, which were entirely within those agencies’ areas of expertise. First, Sierra Club argues that the Corps was arbitrary and capricious in relying upon the FWS “no jeopardy” finding. The basis of this argument is that the Corps did not consider, and did not submit to FWS, the effects of the Ridge Road extension and the Cone borrow pit on the mitigation plan for the Parkway. Neither FWS nor its administrative record is before this Court, so it is impossible, and inappropriate, to speculate about what that agency did or did not consider. Sierra Club bears a heavy burden to prove that the Corps was arbitrary and capricious in relying upon the FWS determination of a matter firmly within that agency’s area of expertise. It is a burden they have not met. Second, Sierra Club challenges the adequacy of the Corps’ consultation with FWS concerning the Florida panther and three protected plant species, the Brooks-ville bellflower, Cooley’s water-willow, and Britton’s beargrass. Even though none of the surveys conducted between 1994 and 1996 found any of these species in or near the action area, Sierra Club argues that the Corps was required to initiate formal consultation. The basis of its argument is that FWS had in its possession a recovery plan for the plants which concluded that a major threat to those plants was the Sun-coast Parkway. Again, neither the FWS nor its administrative record is before this Court. It is insufficient for Sierra Club to allege that the FWS decision to concur with the Corps' assessment was arbitrary and capricious. Instead, Sierra Club must prove that the Corps was arbitrary and capricious in relying upon the FWS decision. Since the surveys for the Parkway concur with the FWS decision, the Corps had sound reasons for relying upon it. Sierra Club has not met their burden of proof. Sierra Club's third argument is that the Corps acted arbitrarily and capriciously in adopting the "action area" as it was defined by the FHWA and state agencies in the 1994 EIS. Absent evidence to the contrary, we presume that an agency has acted in accordance with its regulations. Nicholson v. Brown, 599 F.2d 639, 649 (5th Cir.1979) ("Administrative action comes before the courts clothed with a presumption of regularity."). The Corps acted as a cooperating agency in the development of the 1994 EIS, which originally defined the action area. In such a situation, the Corps' regulations require the district engineer to coordinate with a lead agency to "insure that agency's resulting EIS may be adopted by the Corps for purposes of exercising its regulatory authority." 33 C.F.R. Pt. 325, App. B § 8(c). This necessarily includes appropriately defining the scope of the action. In addition, NEPA regulations require an agency to undertake an independent review of a lead agency's EIS before adopting it. 40 C.F.R. § 1506.3(c). If the Corps undertook no independent consideration of the appropriate scope of the action area, it would be in violation of both NEPA and its own regulations. See 40 C.F.R. § 1506.3; 33 C.F.R. Pt. 325, App. B § 8(c). However, it is apparent from the administrative record that the Corps amply fulfilled its independent review duty. Moreover, we presume that the Corps complied with all regulatory requirements; Sierra Club has adduced no evidence to the contrary. Thus, Sierra Club has failed to overcome the presumption that the Corps contributed to, and concurred with, the definition of the action area. III. CONCLUSION We are satisfied that the Corps took a "hard look" at the environmental consequences of the Suncoast Parkway, and that its determinations were not arbitrary and capricious. The administrative record establishes that the Corps fully complied with the related procedural requirements established by NEPA and the ESA for major federal projects. Thus, we AFFIRM the gTant of summary judgment to the Corps and FDOT on the ESA Section 7 claims. AFFIRMED. . 16 U.S.C. § 1536(a)(2) reads: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) 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, unless such agency has been granted an exemption for such action.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. . Consultation for marine species is made with the Secretary of Commerce, through the National Marine Fisheries Service. . 16 U.S.C. § 1536(a)(3) reads: Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered or threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species. . 16 U.S.C. § 1536(b)(3)(B) reads: Consultation under subsection (a)(3) of this section, and an opinion issued by the Secretary incident to such consultation, regarding an agency action shall be treated respectively as a consultation under subsection (a)(2) of this section, and as an opinion issued after consultation under such subsection, regarding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no significant changes have been made with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. . The action area is not limited only to the immediate area involved in the project, but includes “all areas to be affected directly or indirectly” by the agency action. 50 C.F.R. § 402.02. . 16 U.S.C. § 1536(c)(1) reads: To facilitate compliance with the requirements of subsection (a)(2) of this section, each Federal agency shall, with respect to any agency action ... request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated ... and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. § 4332). . 16 U.S.C. § 1536(b)(4) reads: If after consultation under subsection (a)(2) of this section, the Secretary concludes that— (A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection; (B) the taking of an endangered species or threatened species incidental to the agency action will not violate such subsection; and the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that— (i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). . 16 U.S.C. § 1536(b)(3)(A) reads: Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a) of this section, the Secretary shall provide to the Federal agency and the applicant, if any, 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 would not violate subsection (a)(2) of this section and can be taken by the Federal agency or applicant in implementing the agency action. . 42 U.S.C. § 4332(2)(C) reads: [A]ll agencies of the Federal government shall— 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 statements 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 the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes.... . The general meaning of this phrase is the same as it is under the ESA. The term “major” has no meaning independent of “significant,” and issuing permits can constitute a major action. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. . After the initial denial of the preliminary injunction, Sierra Club amended its complaint to include the Secretary of FDOT as a defendant. . Thus, we need not address the Corps' suggestion that the permitting process is somehow divorced from the construction project itself, thus avoiding the “major” characterization. But see Md. Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir.1986) (quoting Biderman v. Morton, 497 F.2d 1141, 1147 (2d Cir.1974)) (establishing that a project is a federal action "if it cannot 'begin or continue without prior approval of a federal agency' ”); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir.1992) (same); Goos v. I.C.C., 911 F.2d 1283, 1294 (8th Cir.1990) (agency has “legal control” over state project, and must comply with NEPA, when "some federal action 'is a legal condition precedent to accomplishment of an entire non-federal project’ "); Found. on Econ. Trends v. Heckler, 756 F.2d 143, 155 (D.C.Cir.1985) (approval of a nonfederal project constitutes a federal action); 40 C.F.R. § 1508.18(b)(4) (“Major Federal action” includes “[a]pproval of specific projects, such as construction ... activities located in a defined geographic area .... [including] actions approved by permit or other regulatory decision.... ”). . It is not problematic that the Corps’ administrative record does not include the 1993 BA. The 1994 EIS provides all of the necessary environmental information. . Sierra Club argued below, and mentioned in passing on appeal, that the Corps is es-topped from arguing that it adopted the 1994 BIS and the 1993 biological opinion. It asserts that the Corps failed to adhere to the regulations governing adoption of documents and incorporation by reference. We find that the Corps sufficiently complied with these regulations. The 1997 EAs state that this project is the same project discussed in the 1994 ElS. The EAs rely upon the 1994 EIS throughout. They also include verbatim the minimizing measures of the 1993 biological opinion, which provides clear evidence that the Corps was aware of, and did consider, the biological opinion when preparing the EAs. . Moreover, the fact that FHWA was the lead agency with respect to the 1994 EIS does not preclude reliance by the Corps. The Corps was a cooperating agency with respect to the 1994 EIS, and it may adopt an EIS after independent review. 40 C.F.R. § 1506.3(c); 33 C.F.R. § 230.21. It is clear from the instant record that the Corps amply fulfilled the independent review requirement in this case. . Our prior precedent establishes that even where post-EIS changes are entirely beneficial, if they are significant, they require an SEIS. Nat’l Wildlife Fed'n, 721 F.2d at 782-83. Because we find that the post-EIS changes in this case are not significant, the continued wisdom of that holding is not an issue which confronts us. However, we note that other circuits have questioned our decision. Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 505 n. 1 (6th Cir.1995); River Rd. Alliance, Inc. v. Corps of Eng’rs of the U.S. Army, 764 F.2d 445, 451 (7th Cir.1985). The requirements for environmental assessments have become more stringent in the years since the- early 5th Circuit cases that govern our precedent and dictated the holding in National Wildlife Federation. ■ EAs are now generally considered “thorough enough to permit a higher threshold for requiring environmental impact statements.” River Rd. Alliance, 764 F.2d at 451. In addition, there has been a “growing awareness that routinely requiring such statements would use up resources better spent in careful study of actions likely to harm the environment substantially.” Id. . Sierra Club does not argue that the segmented applications constituted separate applications, and as noted in the text the entire scope of the project was considered. Sierra Club makes its segmentation argument primarily with respect to Ridge Road and the Cone borrow pit, but as we note infra Sierra Club has failed to provide record support for its argument. Thus, we need not address whether Ridge Road and the Cone borrow pit were properly segmented either because there was no irretrievable commitment, see Friends of the Earth v. Coleman, 513 F.2d 295, 299 (9th Cir.1975); because they were not inextricably intertwined to the Parkway project, see Port of Astoria, Or. v. Hodel, 595 F.2d 467, 477 (9th Cir.1979); because they each have an independent utility, see Friends of the Earth v. Coleman, 518 F.2d 323, 328-29 (9th Cir.1975); or because the project was otherwise properly segmented.

United States v. Alshabkhoun

BAUER, Circuit Judge. The United States and appellants Shak-eab Alshabkhoun and A & A Farms (collectively A & A) entered into a court-approved Consent Decree to resolve the government’s claims that A & A violated the Clean Water Act. When A & A failed to comply with the terms of the Consent Decree, the government moved to enforce the stipulated penalties provision. The district court granted the government’s motion and ordered A & A to pay stipulated penalties and attorney’s fees. A & A appealed that ruling. For the reasons set forth below, we affirm the district court. I. Background A & A owns 1,000 acres of farmland adjacent to the Wisconsin River in Dane County, Wisconsin. In January of 1994, A & A excavated a drainage ditch system to collect water and excess soil from the farm and neighboring land and convey it to the river. The system required a ditch that was 38 feet wide and 1,500 feet long, which resulted in the discharge of dredged or fill materials into the wetlands. A & A did not obtain a permit from the United States to construct this drainage ditch system. On December 4, 1996, the Environmental Protection Agency (EPA) issued an administrative compliance order stating that A & A’s construction of the ditch without a permit was a violation of the Clean Water Act. The Clean Water Act prohibits the discharge of any pollutant, including dredged or fill material, into navigable waters of the United States, except in accordance with a permit. 33 U.S.C. § 1311(a). A & A then submitted a restoration plan that the EPA rejected and further attempts to resolve the dispute failed. On August 13, 1998, the United States filed a civil action in federal district court under section 309 of the Clean Water Act. The court entered partial summary judgment in favor of the government and, on July 2, 1999, the parties entered into a Consent Decree for the restoration of the wetlands. The decree was negotiated by both parties and approved by the district court. It required A & A to pay $225,000 in civil penalties. Further, to properly restore the wetlands, the Consent Decree required A & A to submit to the EPA a Restoration Work Plan, prepared by a certified engineer, and a schedule for completing the tasks set forth in the Plan. The Consent Decree provided for stipulated penalties for any failure to implement the Plan in compliance with the schedule. Specifically, the Consent Decree required the payment of $500 per day for one to thirty days of noncompliance, $1,000 per day for thirty-one to sixty days of noncompiiance and $2,000 per day for sixty-one or more days of noncompliance. The Consent Decree allowed for the extension of the deadlines if “performance is prevented or delayed solely by events which constitute a Force Majeure event,” defined to exclude “normal precipitation or climate events.” A & A was required to notify the government in writing of any alleged Force Majeure event to invoke the extension of deadlines. The Consent Decree also included a dispute resolution provision. Under this provision, if A & A filed a petition in court concerning the Consent Decree, A & A’s penalties would continue to accrue during the proceedings; however, the filing of a petition would stay A & A’s obligation to pay any penalty regarding the disputed matter. In the event that A & A did not prevail on the matter in dispute, the stipulated penalties became due. The Plan required A & A to obtain bids from contractors within thirty days of the approval of the Plan, complete grading and installation of erosion control measures within forty-five days thereafter, and plant the required trees, shrubs and seeds within thirty days after that. A & A hired a contractor and began the work in late November of 1999, but did not complete the project. More than two months later, on February 17, 2000, A & A filed a notice of dispute with the EPA, requesting relief from the Plan on the grounds that compliance was impossible. A & A stated that it had hired additional experts who opined that the implementation of the Plan could potentially cause flooding problems. The EPA reviewed this information and denied A & A relief. On April 7, 2000, invoking the decree’s dispute resolution clause, A & A filed a Petition to Modify the Consent Decree with the district court claiming that significant unforeseen circumstances affected its ability to perform the work. The court rejected A & A’s impossibility claim and instead found that since the drainage problem was the very reason A & A constructed the ditch at issue, A & A was well aware of its experts’ observations and the potential for drainage problems at the time the Consent Decree was negotiated. As a result, on May 26, 2000, the district court held that A & A had failed to present adequate grounds for any modification of the decree and the petition was denied. In June of 2000, spring flooding rendered the land unsuitable for work. A & A did complete the required excavation in October of 2000, but the parties were still in dispute over the issue of stipulated penalties for the delay. On October 23, 2000, the government filed a Petition to Enforce the Consent Decree, asking the court for an award of $507,850.40. The amount represented the accumulation of the stipulated daily penalties, as well as attorney’s fees. In response, A & A did not contest the calculation of damages, but argued that the stipulated penalties provision was unreasonable and unenforceable and that the delay in completing the work should be excused due to the June flooding. On January 11, 2001, the district court granted the government’s petition in full. The court held that the stipulated penalty provision was reasonable and enforceable because it amounted to less than 10% of the penalty authorized by statute. Further, the court refused to excuse the delay due to the June flooding because had A & A implemented the Plan in a timely manner seven months earlier, the June flooding would have been irrelevant. A & A then brought this appeal. II. Discussion Because a consent decree is a form of contract, we generally review a district court’s interpretation of the consent decree de novo. Goluba v. Sch. Dist. of Ripon, 45 F.3d 1035, 1037-38 (7th Cir.1995). However, where, as here, the district court oversaw and approved the consent decree, we give “some deference” to the district court’s interpretation. Id. A & A concedes that the construction of the ditch violated the Clean Water Act. The sole issue raised on this appeal is whether the district court’s enforcement of the Consent Decree is against public policy. A & A presents two arguments: (1) that the stipulated penalty provision in the Consent Decree is void and unenforceable as a matter of public policy because it allows for penalties to accrue while the parties engage in the dispute resolution process; and (2) that the district court erred in penalizing A & A for the delay in compliance with the schedule because it was unable to perform the work due to the June flooding. We find both arguments to be without merit. A consent decree is a court order that embodies the terms agreed upon by the parties as a compromise to litigation. United States v. Witco Corp., 76 F.Supp.2d 519, 525 (D.Del.1999). For purposes of construction, a judicially approved consent decree is essentially a contract. United States v. City of Northlake, Illinois, 942 F.2d 1164, 1167 (7th Cir.1991). While a consent decree is also deemed a judgment of the court, “it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.” Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); King v. Walters, 190 F.3d 784 (7th Cir.1999). A provision within a consent decree fixing a stipulated penalty is unenforceable if it constitutes an unreasonable penalty or is void as a matter of public policy. South Suburban Hous. Ctr. v. Berry, 186 F.3d 851, 856 (7th Cir.1999). A & A argues that the stipulated penalty provision in the Consent Decree forces A & A to effectively surrender its rights to invoke the dispute resolution process because stipulated penalties might be imposed while the dispute is pending. In support of its public policy argument, A & A relies heavily on United States v. Witco Corporation, in which a United States District Court rendered a similar stipulated penalty provision void and unenforceable. In Witco, the EPA asserted a claim against Witco Corporation, a property owner, seeking the clean-up of a contaminated land site. Witco Corp., 76 F.Supp.2d at 521. Witco and the EPA entered into a consent decree that provided for stipulated penalties if Witco failed to comply with the decree’s terms and the accrual of penalties during any period of dispute resolution. Id. at 522-23. Witco invoked the dispute resolution clause but did not succeed in the dispute. The EPA sought collection of the stipulated penalties, including those that had accrued during the dispute. Id. at 524. The district court refused to award such penalties. Id. at 531. Reasoning that enforcement of the stipulated penalties provision would penalize Witco for asserting its rights to judicial process, the court determined that the stipulated penalty provision was against public policy and therefore, unenforceable because it allowed penalties to accrue while the dispute was pending. Id. at 529-30. A & A’s reliance on Witco is misplaced. The decisions of the district court of Delaware are not controlling authority in this jurisdiction and Witco is notably distinguishable from A & A’s case. First, Witco completed the required clean-up before invoking the dispute resolution clause. Id. at 523. The penalties at issue in that case accrued only while the dispute over fee amounts was pending, and Witco’s dispute involved a change in the law since the entry of the consent decree. Unlike the instant case, Witco had fully remedied the environmental harm by completing its work, and the accrued penalties at issue were unrelated to any continuing environmental violation. Id. at 530-31. In contrast, A & A invoked the dispute resolution procedures while the required work was still uncompleted. A & A’s penalties accrued during this period not because of a late payment, but because of the unwarranted delay in completing the restoration of the wetlands, as required by the Consent Decree. In addition, while Witco brought a good faith claim based on a change in the law, A & A sought to modify the decree here without any similar, legitimate basis. We agree with the district court that Witco was not instructive in this case. More analogous is United States v. Kri-lich, 126 F.3d 1035 (7th Cir.1997), in which we upheld the imposition of over $1 million in stipulated penalties. Krilich, a property owner, entered into a consent decree to settle the government’s Clean Water Act claims. Krilich, 126 F.3d at 1036. In the decree, Krilich promised to restore the subject wetlands according to a schedule. Krilich missed the scheduled deadlines and the government moved to enforce the decree’s stipulated penalties provision. Id. The district court granted the motion and we affirmed. In so doing, we noted that Krilich had negotiated the decree, entered into it freely, and never properly modified any of the deadlines. Id. at 1037. Accordingly, Krilich was bound to pay the stipulated penalties set forth in the consent decree. We believe that the result in Kri-lich is warranted in the instant case. We agree with A & A that access to the courts is of paramount importance. However, it does not follow that an agreed upon provision that allows for the accrual of stipulated penalties during any dispute resolution is unenforceable as a matter of public policy. It is undisputed that this Consent Decree was drafted and negotiated by both parties and entered into voluntarily. A & A cannot now escape the consequences of the Consent Decree with a public policy argument that the provision inhibits its right to access the courts. A & A’s blanket statement that the “right to dispute resolution ‘rings hollow’ when accompanied by the risk of penalties” is overbroad. In fact, the stipulated penalty accrual provision does not apply to a successful claim. Unfortunately for A & A, it was not successful on its petition to modify the Consent Decree. As a result, A & A is hable for the penalties that accrued during the resolution of that dispute. To excuse A & A from the stipulated penalties would undermine the clear terms of the Consent Decree and provide any party to a Consent Decree with a method of delaying performance by invoking the dispute resolution clause with meritless claims. Although unreasonable penalties may well be unenforceable, we believe the stipulated penalties imposed under this Consent Decree are reasonable under these circumstances. See, e.g., United States v. Krilich, 948 F.Supp. 719, 726 (N.D.Ill.1996). The penalties are directly related to the environmental harm caused by A & A. Further, the amount is less than 10% of the statutory authorized penalties. See 33 U.S.C. § 1319(d). A & A also argues that the stipulated penalties were unreasonable as a matter of public policy since the delay in work was attributable to weather conditions beyond its control. It argues that it did not resume work following the resolution of the dispute because June flooding rendered the land unsuitable for work. A & A adds that even the government concedes that the land was too wet for the work at the time. The Consent Decree provided that a deadline may be excused in the event of a “Force Majeure.” This provision, however, required A & A to notify the government in writing of the alleged Force Majeure event in order to excuse a deadline. Because A & A failed to do so, A & A cannot now claim that compliance with the schedule was not possible. See, e.g., Krilich, 126 F.3d at 1037. Moreover, because June was a full seven months after the Consent Decree’s deadlines for completing the work, any flooding in June does not warrant an excuse for the delay and is therefore irrelevant to the issue of stipulated penalties. III. Conclusion For the foregoing reasons, we Affiíim the judgment of the district court.

Froebel v. Meyer

DIANE P. WOOD, Circuit Judge. In 1992, the Wisconsin Department of Natural Resources OWDNR”) completed the process of destroying Funk’s Dam, which had blocked the Oconomowoc River for nearly 150 years. After the dam was removed, silt and sediment that had built up over nearly 150 years damaged the river downstream from the former dam. Kurt Froebel believed that these actions violated state environmental laws, so he sought a Wisconsin administrative order requiring the defendants to fix the problem. His efforts were stymied both there and on appeal to the Wisconsin courts. Froebel then turned to federal court, where he filed the complaint in this action under the citizen suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365 (1994). The district court held that Froebel’s suit was not barred by claim preclusion, but that his complaint should be dismissed for failure to state a claim. We agree that dismissal was proper, but for largely different reasons. Froebel’s claims, except those against Waukesha County, are indeed barred by claim preclusion. We agree that Froebel has not stated a claim against the county, and we therefore affirm the district court's judgment in its entirety. I Funk’s Dam was built in 1850. It dams the Oconomowoc River near the town of Merton, Wisconsin. Over the next 115 years, it was rebuilt twice, but in 1965 it washed out and was not repaired. In 1971, WDNR informed the dam’s owner, Gerald Quinn, that it needed to be fixed, but Quinn refused and in 1975 the dam washed out again. Quinn again failed to comply with the agency’s orders, prompting WDNR in 1982 to declare the dam unsafe and abandoned. At that point, the agency indicated that it intended to remove the dam. However, WDNR did not have access to the funds necessary for removal until nearly ten years later. Finally, in August 1992, WDNR began the drawdown process and conducted hearings concerning the dam’s removal. On October 2, removal began. In devising its removal strategy, WDNR relied on two studies conducted by its employees. The first was a 1986 sediment survey conducted by employee Mike Bozek. The goal of the survey was to try to predict the amount of silt and soft sediment that would be sent down the river after the dam was removed. Based on his study, Bozek recommended that WDNR construct a sediment pit upstream from the dam. The other study was a drawdown plan prepared by WDNR Assistant Dam Safety Engineer William Sturtevant. Sturtevant’s plan recommended pumps and siphons to remove sediment, as well as traps both upstream and downstream from the dam. Based on the minimal consequences to the river if these plans were followed, WDNR decided that an environmental impact analysis would be unnecessary. Unfortunately, the dam removal did not proceed in nearly as orderly a fashion as it would have if either Bozek’s or Sturtev-ant’s plan had been followed. WDNR officials and contractors concluded that Sturtevant’s recommendations were not feasible given the conditions surrounding Funk’s Dam, but they do not appear to have spent a great deal of time developing alternatives. No upstream sediment trap was put in place, and the downstream trap was inadequate for the task (though this may be because Bozek’s study severely underestimated the likely sediment flow after removal). Moreover, there is at least some indication that WDNR’s contractor took silt from the downstream trap and, rather than transporting it down river, pumped it right back into the channel near the dam. The consequences of all of this for the Oconomowoc River were severe — muck and silt bars replaced the gravel spawning grounds for indigenous fish and much of the local flora was buried under a foot of silt. Meanwhile, the North Lake Management District (“District”) filed a petition for a contested case hearing to challenge WDNR’s actions. Froebel, an area resident who frequently used that region of the river for hunting and fishing, intervened. The District and WDNR settled, leaving Froebel as the sole plaintiff against WDNR. The first step was an administrative hearing before Wisconsin Administrative Law Judge Jeffrey Boldt. Froebel requested an order requiring WDNR to undertake remedial steps to repair damage done to the river. However, ALJ Boldt concluded that WDNR had acted within the discretion conferred by Wisconsin statutes and refused to order any remedial actions. Under Wisconsin’s administrative review statute, Froebel’s next stop was the circuit court (Wisconsin’s first level of courts) for Waukesha County. That court affirmed the ALJ’s conclusions, also finding that a provision of Wisconsin’s dam removal code conferred upon WDNR the discretion to remove the dam as it saw fit. Froebel appealed to the Wisconsin Court of Appeals, which also affirmed. Froebel v. Wis. Dept. of Natural Resources, 217 Wis.2d 652, 579 N.W.2d 774 (1998). The appellate court reasoned that since Froe-bel did not show that WDNR had acted contrary to any Wisconsin statute, the circuit court could not order injunctive relief against it. Having no luck in Wisconsin courts, Froebel then brought a citizen’s suit under the CWA. See 33 U.S.C. § 1365. He sued WDNR, as well as Sturtevant and WDNR Secretary George Meyer (collectively, the “state defendants”), alleging that WDNR’s actions violated both Section 402, 33 U.S.C. § 1342, and Section 404, 33 U.S.C. § 1344, of the CWA. Section 402 establishes the National Pollutant Discharge Elimination System (“NPDES”), which creates a permitting program for the discharge of pollutants. Froebel contends that the silt that was sent through the dam is a pollutant and that WDNR thus violated Section 402 by failing to comply with the permit requirement. Section 404 regulates the discharge of fill materials into navigable waters and creates a permitting scheme administered by the U.S. Army Corps of Engineers. Froebel argues that the removal of Funk’s Dam led to a discharge of fill materials for which WDNR should have sought a permit. Additionally, Froebel added a new defendant in his federal complaint, Waukesha County. The county was not involved in the removal of Funk’s Dam, but it owned the property on which the dam was located at the' time Froebel brought his federal suit. Froebel concedes that Waukesha County had nothing to do with the events of 1992, but he argues that the county continues to violate Sections 402 and 404 because the particles that naturally flow down the river past the point where the dam used to be constitute both a pollutant and fill material. The district court dismissed WDNR on sovereign immunity grounds. In Froebel’s favor, it ruled both that the action against Meyer and Sturtevant was a proper application of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and that the Wisconsin judgment did not have the effect of precluding Froebel’s federal claims. Having won these battles, Froebel nonetheless lost the war: the district court ultimately ruled that Froebel had failed to state a claim under either Section 402 or Section 404. Froebel now appeals everything except the dismissal of WDNR. II Since Wisconsin courts have already rendered a judgment in an action between Froebel and WDNR, claim preclusion is an obvious concern. By not having raised his CWA claims before either the Wisconsin administrative law judge or the Wisconsin courts, Froebel may now be precluded from asserting a Clean Water Act violation in conjunction with the very same dam removal that formed the basis of his earlier Wisconsin action. A Before we examine claim preclusion, however, we must first address a waiver problem created by the defendants’ briefing strategy. On appeal, only Waukesha County raises a preclusion argument. The state defendants dedicate their entire brief to the merits of Froebel’s Section 402 and 404 claims, as well as their argument that they enjoy sovereign immunity. Ordinarily, this would be a substantial problem, since arguments not raised in a brief are usually deemed waived. See, e.g., Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School, 167 F.3d 1170, 1173 (7th Cir.1999); Finance Investment Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 531 (7th Cir.1998); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). The state defendants did not even coordinate their briefing with that of the county and indicate that they were adopting the county’s preclusion argument by reference, as they might have done. See Fed. R.App. P. 28(i); Bruner Corp. v. R.A. Bruner Co., 133 F.3d 491, 498 n. 7 (7th Cir.1998). Under the circumstances, we think it inappropriate to extend the County’s preclusion arguments to the state defendants. Nonetheless, the fact that the district court ruled in the defendants’ favor, and explicitly addressed the preclusion issue, saves them from themselves. Because their position on appeal seeks only to maintain the status quo, we apply “a degree of leniency” to the state defendants’ failure to raise all possible grounds for affirming the lower court. See Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358 (7th Cir.1996) (noting that “[t]he urging of alternative grounds for affir-mance is a privilege rather than a duty”). This means that so long as the state defendants did not waive their preclusion argument by failing to present the issue to the district court, we may consider it. Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 173 (7th Cir.1996). From that standpoint, the state defendants are on firm ground: they raised their preclusion argument before the district court. In addition, our consideration of this point vis á vis the state defendants (as opposed to the County) will not prejudice Froebel. The fact that Waukesha County raised the argument on appeal means that Froebel was prepared to meet the point. Indeed, he addresses it in his reply brief, where he makes the erroneous point that the County would have had to file a cross-appeal to preserve the right to attack the district court’s ruling on this issue. No cross-appeal is necessary unless the appellee wants the court of appeals to alter the judgment, not just the reasoning, of the district court. See Stone Container Corp. v. Hartford Steam Boiler Inspection & Ins. Co., 165 F.3d 1157, 1159 (7th Cir.1999). B Under 28 U.S.C. § 1738, federal courts must give the judgments of state courts the same full faith and credit that those judgments would receive in the rendering state’s courts, as long as the state judgment satisfied constitutional due process requirements. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). See also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996); Marre se v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). Even if the state court formally would not have had jurisdiction to hear the later claim, because it fell within the exclusive jurisdiction of the federal courts, § 1738 requires the federal court to analyze the case by asking what preclusive effect the state would give the first judgment in analogous circumstances. Mar-rese, 470 U.S. at 380, 105 S.Ct. 1327. The question for us is therefore whether the Wisconsin courts would find the CWA action Froebel has brought precluded by his prior litigation. We conclude that they would. The Wisconsin Supreme Court recently summarized its approach to deciding when a subsequent action is barred in Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 601 N.W.2d 627 (1999). There the court indicated that three factors had to be present in order to preclude the later action: (1) identity between the parties or their privies in the prior and present suits; (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits. Id. at 637. See also Northern States Power Co. v. Bugher, 189 Wis.2d 541, 525 N.W.2d 723, 728 (1995). The first question is therefore whether the parties here are the same, legally speaking, as the parties who participated in the Wisconsin proceedings. The answer is yes, because of the way Wisconsin treats challenges to administrative action. While the Wisconsin action named only WDNR, Froebel’s current action is targeted at not only WDNR but also Meyer (in his official capacity), Sturtevant (in his individual capacity), and Waukesha County. Under Wisconsin preclusion law, Meyer and Sturtevant are viewed as to WDNR since Froebel’s complaints against them concern only their actions as employees of the agency. See Northern States Power, 525 N.W.2d at 728 (finding identity of parties in prior suit against agency and action against officers acting in their official capacities); Lindas v. Cady, 175 Wis.2d 270, 499 N.W.2d 692, 699 (1993) (holding that a suit against an employer generally precludes subsequent suits against the employees, even in their individual capacities, when the conduct forming the basis of the complaint was part of the employees’ job functions), aff'd. on other grounds, 183 Wis.2d 547, 515 N.W.2d 458 (1994). Waukesha County is different. There is no indication from the record that Waukesha County (which is a party to this case only because it owns the land on which Funk’s Dam used to sit) had anything to do with either the decision to remove the dam or Froebel’s litigation in the Wisconsin courts. It is therefore unlikely that if Froebel were to bring a suit solely against the county in Wisconsin court that the court would dismiss his case on claim preclusion grounds. Moreover, the county and WDNR defendants were represented by different counsel both in the district court and on appeal, a fact that the Wisconsin Supreme Court suggests is important in evaluating whether parties are identical for preclusion purposes. See Northern States Power, 525 N.W.2d at 728. Because the County cannot satisfy the first factor, Froebel’s claims against it are not barred; we discuss them below. The third factor&emdash;identity of the causes of action-is also satisfied under Wisconsin’s transactional approach to claim preclusion. Under this approach, “the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Northern States Power, 525 N.W.2d at 729, quoting Restatement (2d) of Judgments § 24(1) (1982). The Wisconsin courts focus on facts, not legal theories, to determine whether an action is precluded. See Northern States Power, 525 N.W.2d at 729 (“[T]he number of substantive theories that may be available to a plaintiff is immaterial-if they all arise from the same factual underpinnings they must all be brought in the same action or be barred from future consideration.”). Here, Froebel is complaining about the procedures employed in the 1992 removal of Funk’s Dam, just as he did before the Wisconsin ALJ and courts. The two cases arise out of the same transaction or series of transactions. We have saved the second factor for last because it presents additional complications. The Wisconsin proceedings plainly ended in a final judgment on the merits of Froebel’s challenge to WDNR’s conduct in removing Funk’s Dam. The fact that Froebel’s first ease began in an administrative setting does not change this fact. Acharya v. Am. Fed’n of State, County, and Municipal Employees, 146 Wis.2d 693, 432 N.W.2d 140, 142 (1988). Compare City of Chicago v. Intern. College of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) (supporting removal jurisdiction in a case that began as an administrative proceeding, that was appealed to the state circuit court where federal claims were added to the administrative review issues, and that was then removed to federal court). On the other hand, the judgment must have been rendered “by a court with jurisdiction.” That phrase implicates one of the exceptions to the rule against claim splitting recognized by the Restatement (Second) of Judgments, which the Wisconsin Supreme Court normally follows. See, e.g., Sopha, 601 N.W.2d at 637. Section 26 of the Second Restatement outlines exceptions to the general rule against claim splitting, and one of those exceptions is as follows: (c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief .... Restatement (2d) Judgments § 26(l)(c). Froebel argues that this was precisely his problem in the Wisconsin proceedings: he is now presenting a federal Clean Water Act claim that, he says, would not have been entertained in the state proceedings because of limitations on the authority of those tribunals. If that were true, then it is our best guess that Wisconsin itself would permit this later suit, and thus it could proceed in federal court. Compare Crossroads Cogeneration Corp. v. Orange & Rockland Utilities, Inc., 159 F.3d 129, 140 (3d Cir.1998) (finding that New York courts, which also follow the transactional approach to claim preclusion, would so rule). But, unlike the litigant in Crossroads, Froebel never even asked the Wisconsin administrative or judicial tribunals to entertain his CWA claims, and it appears to us that, had he asked, they could have done so. The first indication that this is true comes from Northern States Power, in which the Supreme Court of Wisconsin considered a claim preclusion problem similar to the one presented in this case. There, a Wisconsin taxpayer failed to raise a federal constitutional challenge to a decision by the Wisconsin Department of Revenue denying a claimed deduction, instead relying solely on its interpretation of the governing Wisconsin statute. Northern States Power, 525 N.W.2d at 726. The taxpayer then brought a claim under 42 U.S.C. § 1983 against various state officials, alleging that the state tax was unconstitutional as applied to its case. The Wisconsin Supreme Court held that the Section 1983 suit was barred by claim preclusion because the taxpayer failed to raise the federal constitutional issue before either the state administrative agency or the reviewing courts. This, of course, is a precise parallel to Froebel’s case: after failing to raise any Clean Water Act issues in state proceedings, he now wishes to vindicate federal rights in a subsequent suit. The district court concluded that Northern States Power was distinguishable from Froebel’s situation because it believed that the Wisconsin administrative tribunal and courts in Northern States Power had the authority to grant the requested relief, whereas here the Wisconsin Court of Appeals indicated that neither the administrative agency nor the state lower court could grant Froebel’s request for an injunction. As a result of this conclusion, the district court thought that it would be fundamentally unfair to apply preclusion to Froebel’s current claim because of the limits on the Wisconsin courts’ remedial powers. The district court was right to raise these equitable considerations, since “Wisconsin law does not treat res judicata as an ironclad rule which must be implacably applied whenever its literal requirements are met, regardless of any countervailing considerations.” Sopha, 601 N.W.2d at 638, quoting Patzer v. Board of Regents, 763 F.2d 851, 856 (7th Cir.1985). See also McCourt v. Algiers, 4 Wis.2d 607, 91 N.W.2d 194, 196 (1958) (indicating that res judicata may not apply where relitigation is necessary to prevent unfairness). That said, we believe that the district court misinterpreted the Wisconsin courts’ reasons for disposing of Froebel’s claim. Wis. Stat. § 227.57(9), which prescribes the procedures for judicial review of agency actions, allows the reviewing court “to provide whatever relief is appropriate irrespective of the original form of the petition.” In the Wisconsin litigation, Froebel contended that this section granted the reviewing court the power to enjoin WDNR and compel a restoration of the affected region of the Oconomowoc river. The court of appeals rejected this claim, but did so because “the circuit court found that the ALJ had correctly interpreted the law and found no other grounds upon which to set aside or modify the agency decision.” Froebel, 579 N.W.2d at 780-81. In other words, the Wisconsin circuit court could not enjoin the defendants because it found no legal basis for doing so. Along the same lines, the court of appeals held that Wis. Stat. § 227.57(2) requires a reviewing court to affirm an agency decision “unless the court finds a ground” for setting it aside or modifying it. Id. So, the reason that WDNR could not be enjoined was that Froebel had not presented a legal basis for doing so. The federal Clean Water Act might have provided such a basis. Other Wisconsin cases indicate that it is permissible to raise federal environmental law in state administrative litigation. See, e.g., Badger Paper Mills, Inc. v. Wis. Dept. of Natural Resources, 154 Wis.2d 435, 452 N.W.2d 797, 800 (1990) (requiring party to raise Clean Water Act arguments before ALJ prior to seeking state judicial review). Supposing that Froebel’s claim that the state defendants had violated the Clean Water Act is correct, ALJ Boldt may have concluded that WDNR was acting illegally. Froebel could have further argued this point to the Wisconsin state courts. Under yet another section of the Wisconsin administrative review provisions, Wis. Stat. § 227.57(8), a reviewing court “shall reverse or remand the ease to the agency if it finds that the agency’s exercise of discretion ... is otherwise in violation of a constitutional or statutory provision.” There is no reason to think that Froebel could not have argued to both the ALJ and the circuit court that the Wisconsin provisions as interpreted by WDNR violated the federal Clean Water Act. If he prevailed, then the Wisconsin courts would have concluded that WDNR(s removal of Funk’s Dam was “otherwise in violation of a constitutional or statutory provision.” That would have offered a basis in law to modify the ALJ’s decision and, under § 227.57(9), fashion appropriate relief. Furthermore, the Wisconsin courts’ reasoning in disposing of Froebel’s claim makes it clear that the outcome of his state case could have been very different had he chosen to raise the Clean Water Act arguments that he makes here. Both the Wisconsin circuit and appellate courts upheld WDNR’s actions by reference to Wis. Stat. § 31.187(1), which provides: The department may remove or cause to be removed, in such manner as it deems fit, old and abandoned dams in streams in this state, upon giving 60 days’ notice in writing to the owner thereof, if the owner can be found. The court of appeals concluded that the authority to remove dams “as it deems fit” confers on WDNR nearly unfettered discretion with respect to dam removal. Froebel, 579 N.W.2d at 781. However, there is no doubt that Wisconsin cannot give discretion to its administrative agencies to violate federal law, since such a statute would run contrary to the Supremacy Clause. See U.S. Const. Art. VI, § 2. If Froebel’s substantive claim-that WDNR violated both Section 402 and Section 404 of the Clean Water Act-is correct, then Wis. Stat. § 31.187 cannot extend to WDNR the complete discretion that the Wisconsin courts found. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978) (“[A] state statute is void to the extent that it actually conflicts with a valid federal statute.”). We presume that Wisconsin officials and courts would have faithfully applied federal standards if Froebel had given them the chance. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 274, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). So, if Froebel is right on the merits, we doubt that the Wisconsin courts would have interpreted Wis. Stat. § 31.187 to give the agency the authority to act anyway. In short, Northern States Power indicates that Froebel’s present action against the state defendants could have been entertained in the earlier Wisconsin proceeding. For those who are keeping score, we note that we have now made equivalent findings with respect to this aspect of claim preclusion for each of the three states within the circuit. See Button v. Harden, 814 F.2d 382 (7th Cir.1987) (Illinois law); confirmed by Stratton v. Wenona Community Unit Dist. No. 1, 133 Ill.2d 413, 141 Ill.Dec. 453, 551 N.E.2d 640, 646-47 (1990); Leal v. Krajewski, 803 F.2d 332, 335 (7th Cir.1986) (Indiana law); Atkins v. Hancock County Sheriff’s Merit Board, 910 F.2d 403 (7th Cir.1990) (Indiana law, following Leal). Here, we find that all three requirements of Wisconsin’s rule for claim preclusion are satisfied, and Froe-bel’s new suit is barred. Ill Finally, we consider Froebel’s claims against Waukesha County. Unfortunately for Froebel, the same lack of county involvement in the dam removal that saved his case from preclusion also undercuts both of the CWA theories that he presented in his complaint. Froebel’s first CWA claim is based on Section 402 of the CWA, requiring a permit for “the discharge of any pollutant, or combination of pollutants.” 33 U.S.C. § 1342(a)(1). “Discharge of a pollutant,” in turn, is defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). “Point source” is also a defined term; it means “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). We have not specifically decided whether and when a dam can serve as a point source, but several other circuits have dealt with this issue and all have concluded that, at least under some circumstances, a dam can meet the statutory definition of point source. Committee to Save Mokelumne River v. East Bay Municipal Utility District, 13 F.3d 305, 308 (9th Cir.1993); National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6th Cir.1988); National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 n. 22 (D.C.Cir.1982); Missouri ex rel. Ashcroft v. Department of the Army, 672 F.2d 1297, 1304 (8th Cir.1982). In concluding that a dam is a “point source,” these other courts have looked at the outlets from the dam itself, such as spillways, pipes, and valves. See, e.g., Committee to Save Mokulumne River, 13 F.3d at 308, Gorsuch, 693 F.2d at 165. Our case, at least as far as Waukesha County goes, presents a very different problem. Funk’s Dam is mostly gone, and the supposed “point source” is really nothing more than the hole through which the Oconomowoc River now flows unrestrained. Froebel’s theory is that the former dam impoundment and a portion of a river channel can constitute a “point source” just because there used to be an artificial structure at that spot. Such a reading, however, has a number of problems. The first and most obvious is that the definition of “discharge of a pollutant” requires that the pollutant flow “to navigable waters from any point source.” The most natural reading of this language is that the point source is distinct from navigable water. The structure of the CWA’s definition of “point source” (a “discernible, confined, and discrete conveyance ... from which pollutants are or may be discharged”) connotes the terminal end of an artificial system for moving water, waste, or other materials. See United States v. Plaza Health Laboratories, 3 F.3d 643, 646 (2d Cir.1993) (noting that the definition “evoke[s] images of physical structures and instrumentalities that systematically act as a means of conveying pollutants from an industrial source to navigable waterways”). If, for example, Waukesha County were precipitating silt from the impoundment into a pile on the riverbank, then pumping it back into the waterway using a pipe, the pipe would be a point source. Whether there would be an addition as understood in Section 402 we need not decide. Finally, our reading is further reinforced by the fact that we apply a broad construction to the term “navigable water.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964 (7th Cir.1994). Compare Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 191 F.3d 845 (7th Cir.1999), cert. granted - U.S. -, 120 S.Ct. 2003, 146 L.Ed.2d 954 (2000) (raising the question, not at issue here, whether the navigable waters encompass all areas used as habitat by migratory birds). The broad reach of “navigable waters” pushes the natural reading of “point source” back to the point at which an artificial mechanism introduces a pollutant. If, for example, an industrial polluter operated a facility that dumped waste into a pond that feeds a tributary to a river that flows to the ocean, the facility would be the point source. Otherwise, any point at which one waterway empties into another could be construed as a “point source,” subjecting unsuspecting owners of these confluences to liability when pollutants flow downstream. Froebel’s other CWA claim against the county is based on Section 404, 33 U.S.C. § 1344, which establishes a permitting system for discharging dredged or fill material. He argues that the removal of the dam, as well as the ongoing scouring action of the river water as it passes through what used to be the Funk’s Dam impoundment, constitutes a discharge of dredged or fill material that requires a permit. The problem with Froebel’s theory is that there is nothing in either the regulations or the case law interpreting Section 404 that indicates that a landowner can fall within the permit requirement for a “discharge” by doing absolutely nothing at all. A “discharge of dredged material” refers to “any addition of dredged material ... including redeposit of dredged material other than incidental fallback” into navigable water. 33 C.F.R. § 323.2(d)(1). Similarly, a “discharge of fill material” is “the addition of fill material into waters of the United States.” 33 C.F.R. § 323.2(f). The reference to “addition” and “redeposit” strongly suggest that a Section 404 permit is required only when the party allegedly needing a permit takes some action, rather than doing nothing whatsoever (as Waukesha County has done here). Froebel’s theory is that as water passes through the opening where Funk’s Dam used to be, it scours silt off of the bottom of the impoundment (the dredging), then deposits it downstream (the discharge or, alternatively, the fill for which Section 404 mandates a permit). It is not at all difficult to imagine that water could be used to dredge or fill a riverbed when a person directs the water for that purpose. However, Froebel presents no authority for the proposition that dredging can be a purely passive activity. He relies heavily on United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.1985). But M.C.C. just holds CWA is not limited to a narrow conception of dredging or filling-active, purposeful digging. In M.C.C., it was the churning action caused by the defendant’s boat operations that was the source of the dredging that the court found to fall within Section 404. But the point is that the defendant was doing something. So, while it is possible that the state defendants have engaged in unlawful dredging by removing Funk’s Dam and allowing the Oconomowoc River to clean out the impoundment, Waukesha County has not. Section 404, its underlying regulations, and cases applying its terms all have a common element that is lacking in Froe-bel’s claims against Waukesha County— active conduct that results in the discharge of dredged or fill material. If the county were to pile silt on the riverbank and deliberately allow rainfall to wash it into the stream, then Section 404 might become relevant. Here, however, Froebel’s claim would essentially require Waukesha County to seek a permit to do nothing but continue to own the land. As even Froe-bel conceded at oral argument, that cannot be a correct interpretation of Section 404. IV Because Froebel’s suit against the state defendants is barred by the judgment in the prior Wisconsin proceedings and his complaint does not state a cause of action against Waukesha County, the judgment of the district court is Affirmed.

Kelly v. United States Environmental Protection Agency

TERENCE T. EVANS, Circuit Judge. A man’s home may be his castle, but our society has come to realize that just how an individual property owner uses shared resources such as water, air, and soil affects the rest of the community. Several laws protecting these resources have beén enacted, and one of them, the Clean Water Act, is designed to protect this country’s dwindling wetlands, a vital part of the ecosystem that purifies the water, helps control flooding, produces food, and provides habitat for birds, fish, animals, and plants. The appellants attempt to trivialize this natural resource and the law that safeguards it, but they offer no coherent rationale why they should get out from under a small sanction imposed upon them for violating the Clean Water Act. Thomas Kelly owns property adjacent to Lake Koshkonong in Jefferson County, Wisconsin. Lake Koshkonong is part of the Rock River, which eventually empties into the Mississippi River. Kelly’s property includes a 3.5-acre “swale,” or low-lying marsh. The marshy area performs several ecological functions: absorbing nutrients and purifying the water; allowing a variety of trees and plants to grow; and providing food and shelter for herons, kingfishers, muskrats, pheasants, rabbits, squirrels, red foxes, snipes, ducks, geese and their goslings. Kelly, though, was more interested in making a buck than saving a duck. He bought the property with the aim of turning it into a subdivision. He built a road, extended utilities, cut down trees, cleaned up garbage, obtained a permit from the county to riprap the shoreline and fill in part of the property, and began filling in the swale. Dale Pfeiffle of the Army Corps of Engineers visited the property in August 1990, observed fill in about 30 percent of the swale, and took note of the land’s wetland characteristics. Pfeiffle told Kelly that, in addition to the county permit, he needed a federal permit to discharge fill material into the swale. Later, an application for a permit was mailed to Kelly. Kelly consulted an attorney, who told him he didn’t need permission from the feds to continue his development of the land. This was bad advice. Kelly continued filling in the swale without bothering to get a permit. By the time Pfeiffle returned to the property in September 1990, almost 90 percent of the swale contained fill material. Finding that Kelly violated the Clean Water Act by filling in a wetland without a permit, the EPA ordered him to remove the fill and restore the swale to its prior condition. No fine was ordered, and Kelly complied. A friend of his, Jonathan Prisk, did some of the restoration work. Flooding in the summer of 1993 left brush and root stumps on Kelly’s land. He burned what he could and decided to bury the rest. He hired Prisk to dig pits in the swale, bury the debris, and level things off. Prisk asked if a permit was required and suggested burying the debris upland away from the swale, but Kelly told him, in effect, “Don’t worry; be happy.” This, too, was bad advice. On January 28 and February 1, 1994, Prisk used a backhoe to dig eight pits in the swale, deposit brush, and then cover the pits. William Meyer of the Army Corps of Engineers visited the property on February 1 and saw what Prisk was doing. Meyer and the EPA’s Gregory Carlson visited the property again a few days later and observed eight covered pits, large ruts in the soil resembling tire tracks, and clots of earth bereft of vegetation. Carlson estimated that the fill activities had disturbed two of the swale’s 3.5 acres and that 800 cubic yards of fill had been dumped in the swale. The EPA sought a $6,000 administrative penalty against Prisk and a $4,000 administrative penalty against Kelly for violating the Clean Water Act by filling in a wetland. An administrative hearing was held in 1996 at which Pfeiffle, Meyer, Carlson, Kelly, and a local sportsman named Richard Persson testified. (Prisk did not attend but was represented by his lawyer, who also was representing Kelly.) In August 1998 David A. Ullrich, EPA’s acting regional administrator at the time, assessed the requested $4,000 penalty against Kelly and lowered Prisk’s penalty to $3,000 because he was viewed as the least culpable of the two. Kelly and Prisk appealed to the district court, but the EPA’s decision was upheld. We review de novo a district court’s decision to affirm the decision of the EPA’s regional administrator. See Mahler v. U.S. Forest Service, 128 F.3d 578, 582 (7th Cir.1997). No court will set aside civil penalties assessed by an agency “unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation.” 33 U.S.C. § 1319(g)(8). Evidence is substantial if a reasonable mind might accept it as adequate to support a conclusion. Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir.1993). Congress enacted 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). The Act prohibits discharging pollutants into navigable waters without a permit from the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344, 1362(6), (7) and (12). Pollutants include dredged spoil, biological materials, rock, and sand. 33 U.S.C. § 1362(6). Navigable waters include wetlands, 33 C.F.R. § 328 (see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132-35, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); Solid Waste Agency of N. Cook Co. v. U.S. Army Corps of Eng’rs, 191 F.3d 845, 851 (7th Cir.1999); Village of Oconomowoc Lake v. Dayton-Hudson Corp., 24 F.3d 962, 964 (7th Cir.1994)), which are “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). Kelly and Prisk argue that because they did not knowingly violate the law they did not violate the law. This argument fails for at least three reasons. First, although Kelly and Prisk’s brief makes scattered references to not knowingly violating the statute, it fails to explain their argument that knowledge is required for a violation. Undeveloped arguments are waived. See JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 780-81 (7th Cir.1999); United States v. Watson, 189 F.3d 496, 500 (7th Cir.1999). Second, nothing in the statute makes good faith or a lack of knowledge a defense. Negligence or knowledge is expressly required to trigger the statute’s criminal penalties, 33 U.S.C. § 1319(c), but no such requirement exists for civil or administrative . penalties, 33 U.S.C. § 1319(d) and (g). Civil liability under the Clean Water Act, therefore, is strict. See United States v. Winchester Mun. Util., 944 F.2d 301, 304 & n. 1 (6th Cir.1991); United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir.1979); United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979); Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 627 (8th Cir.1979). Third, even if knowledge was required for a violation, the run-in with the feds in 1990 made Kelly (who was ordered to undo the damage) and Prisk (who did some of the actual work of undoing the damage) aware that putting material in the swale was a no-no. Their sob story about being ignorant of the federal regulations might have been credible the first time, but they obviously chose with, at best, their eyes wide shut, to disregard the law the second time around. Kelly and Prisk also suggest that they did not violate the law because stuffing dead vegetation in the swale caused no environmental harm. Again, there is evidence that their actions caused some damage. But, again, they miss the larger point: The Clean Water Act does not forbid all filling of wetlands—it forbids the filling of wetlands without a permit. “The permit process is the cornerstone of the ... scheme for cleaning up the nation’s waters.” United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir.1985) (internal quotations omitted). The purpose of requiring federal approval beforehand is to prevent or minimize aquatic damage. Kelly’s actions might well have received federal approval. (In fiscal year 1994, for example, less than T percent of permit applications were denied. See U.S. Environmental Protection Agency, Facts about Wetlands, (revised May 25, 1999), <http://www.epa.gov/owow/wetlands/fact/ facts5.html>.) The problem is that Kelly never allowed the process to work. Driving a car without a license is not necessarily dangerous, but it is illegal. Likewise, digging eight pits in a marsh might not cause massive environmental trauma, but doing so without a permit violates the Clean Water Act. There is substantial evidence in the record that the fill placed in the swale was a pollutant, that the swale was a wetland, that Kelly and Prisk did not have a permit, and therefore that the two men violated the Clean Water Act. Kelly and Prisk also contend that the amount of the civil assessments were too high and retaliatory. But we will not set aside civil penalties assessed by the Agency unless they constitute an abuse of discretion. 88 U.S.C. § 1319(g)(8). An abuse of discretion by an agency involves a decision made without a rational explanation, a decision that departs from established policies, or a decision that rests on an impermissible basis. See Osuch v. INS, 970 F.2d 394, 396 (7th Cir.1992). Factors that influence the amount of the penalty include the nature of the violation, circumstances of the violation, extent of the violation, gravity of the violation, the violator’s ability to pay, any prior history of such violations, the degree of culpability, economic benefits resulting from the violation,and such other matters as justice may require. 33 U.S.C. § 1319(g)(3). The EPA took these considerations into account, noting that protecting wetlands is important, that violating the Clean Water Act is serious, that Kelly and Prisk knew about the law because of the 1990 incident, and that Kelly was more culpable than Prisk because he owned the land and directed the violations. The EPA also said deterrence was appropriate in this case because 100 of Kelly’s neighbors had signed a petition saying they supported what he had done. Civil penalties under the Clean Water Act are intended to punish culpable individuals and deter future violations, not just to extract compensation or restore the status quo. Tull v. United States, 481 U.S. 412, 422-23, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). Kelly and Prisk suggest that the fines were out of proportion to the environmental damage caused. They are wrong, for the fines actually were quite modest. The EPA could have sought civil penalties up to $25,000 per day of violation. 33 U.S.C. § 1319(d). Instead, the EPA chose to assess administrative penalties, where the maximum fine was $10,000 each. 33 U.S.C. § 1319(g)(2)(A). The $4,000 civil assessment against Kelly and the $3,000 assessment against Prisk were well within the statute’s monetary range. Kelly and Prisk complain that the lack of discovery allowed in these proceedings precluded them from showing that the EPA was retaliating against them. But there is no constitutional right to pretrial discovery in administrative proceedings. Silverman v. Commodity Futures Trading Comm’n, 549 F.2d 28 (7th Cir.1977). The Administrative Procedure Act contains no provision for pretrial discovery in the administrative process and the Federal Rules of Civil Procedure do not apply to administrative proceedings. Id. However, Kelly and Prisk could have investigated the government’s motives by cross-examining witnesses during the administrative hearing, by requesting government documents under the Freedom of Information Act, or by filing suit against the government. What Kelly and Prisk hoped to uncover is a mystery, though, because their accusations of retaliation make no sense. They say there is something sinister about the fact that the EPA’s enforcement actions did not begin until September 1994, shortly after Kelly called the Army Corps of Engineers about getting a permit and 7 months after the violations occurred. Kelly could be fined for what he did in February regardless of whether he got a permit in September. Seeking modest fines against individuals who twice defied the law sounds to us not like retaliation, but like an agency that was — if anything, cautiously — carrying out its responsibilities. Kelly and Prisk’s last-gasp argument is that the $7,000 in fines violated the “excessive fines” clause of the Eighth Amendment. But we can’t say the fine is grossly disproportionate to the gravity of the Offense when Congress has made a judgment about the appropriate punishment. See United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 2037-38, 141 L.Ed.2d 314 (1998). The inherently imprecise decision to fine Kelly and Prisk a total of $7,000 was not grossly disproportionate to the violation of an important environmental safeguard that could have drawn a total fine of $100,000 ($25,000 civil penalty multiplied by 2 days multiplied by 2 offenders). Disliking a law may be the basis for a letter to the editor, but it does not give one a license to break the law nor does it create grounds for an appeal. Kelly and Prisk might have argued that the stumps and other rotting vegetation they were burying in the wetland do not qualify as pollutants. They might have argued that the land was not a wetland in the first place. They might have argued that finalizing the fine 4 % years after the violation was too late. They might have argued that the agencies’ expansive definition of “waters of the United States” that are subject to regulation is too broad. See United States v. Wilson, 133 F.3d 251 (4th Cir.1997). They might have argued that the vegetation was somehow incidental fallback from material they were trying to remove from the area and thus not subject to the regulation. See National Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1405 (D.C.Cir.1998). We do not mean to suggest that any of these arguments would have been successful, but they surely would have stood a better chance than the approach Kelly and Prisk took on appeal. Their brief cited only three cases and blithely declined to repeat issues it claimed were contained in the record. Their argument is essentially nothing more than a diatribe against federal power under the Clean Water Act. It has been unpersuasive. The judgment of the district court upholding the penalties assessed by the EPA is AFFIRMED.

United States v. Mango

POOLER, Circuit Judge: This appeal requires us to determine whether the Clean Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”) allows the Secretary of the Army (the “Secretary”) to delegate authority to issue discharge permits to district engineers in the Army Corps of Engineers (the “Corps”). If so, we must also decide the scope of the district engineer’s authority to set permit conditions. The United States District Court for the Northern District of New York (Howard G. Munson, Judge) found that the Secretary lacked the power to delegate the issuance of permits to anyone other than the Chief of Engineers (the “Chief’). Because a lower level Corps employee issued the permit in question, the district court dismissed all of the indictment counts that charged defendants with violating CWA permit conditions. In the alternative, the court found that permit conditions that were not directly related to the discharge of dredged or fill material were invalid. Based on our holdings that the Secretary properly delegated his permit-issuing authority to district engineers and that permits may include conditions reasonably related to the discharge of dredged or fill material whether the relationship is direct or indirect, we reverse the district court’s dismissal of counts two through thirteen and twenty through thirty-one and remand for reconsideration of their viability under the standard set forth in this opinion. BACKGROUND I. Statutory and Regulatory Framework With several exceptions, the CWA prohibits the discharge of all pollutants into the nation’s waters. See 33 U.S.C. § 1311(a). The Administrator of the Environmental Protection Agency (“EPA”) bears the major federal responsibility for enforcement and interpretation of the CWA. Thus, although the “Secretary”— defined as “the Secretary of the Army, acting through the Chief of Engineers”— has authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites,” 33 U.S.C. § 1344(a), (d), the EPA Administrator can override any individual decision to issue a permit if she finds “that the discharge of such materials ... will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas ..., wildlife, or recreational areas.” 33 U.S.C. § 1344(c). The CWA instructs the Administrator, in conjunction with the Secretary, to develop guidelines for issuing permits that include consideration of the effect of disposed pollutants on human health and welfare, marine life, and esthetic, recreational and economic values, as well as various scientific criteria and alternatives to the proposed disposal. See 33 U.S.C. § 1344(b) (referencing 33 U.S.C. § 1343(c)). Knowing or negligent violation of a permit condition subjects the violator to criminal liability. See 33 U.S.C. § 1319(c). The Secretary has delegated his CWA permit-issuing authority to “authorized representatives” of the Chief including “district engineers.” 33 C.F.R. § 325.8(a), (b). Although permits must contain the name of the district engineer, a lower level employee designated by the district engineer may sign the permit. See 33 C.F.R. § 325.8(b). In making permitting decisions, the authorized Corps representative considers criteria contained in 40 C.F.R. Part 230, which was developed by the Administrator, in conjunction with the Secretary, to govern discharge permits issued pursuant to 33 U.S.C. § 1344(b), as well as criteria set out in 33 C.F.R. § 320.4(a), which lists public interest factors the Army must consider in connection with any permit it issues. The Secretary also has defined by regulation certain terms relevant to his jurisdiction. For instance, “dredged material means material that is excavated or dredged from waters of the United States,” 33 C.F.R. § 323.2(c), and “fill material means any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a[] waterbody,” 33 C.F.R. § 323.2(e). II. The Iroquois Project The charges against defendants stem from the construction in 1991 and 1992 of the 370-mile Iroquois pipeline project from Ontario, Canada to Long Island, New York. Defendant Kenneth Austin was the vice president and director of engineering and construction for Iroquois Gas Transmission System Limited Partnership and its agent, the Iroquois Pipeline Operating Co. (collectively, “Iroquois”), which constructed the pipeline. Phenix Environmental, Inc. (“Phenix”) performed environmental inspections for Iroquois. Defendant Louise Mango, Phenix’ president and principal owner, also acted as Iroquois’ manager of environmental affairs. Defendant Kevin Dominske, a Phenix employee, oversaw environmental compliance for Spread Two, a portion of the pipeline project located in northern New York. Prior to constructing the pipeline, Iroquois had to satisfy several regulatory masters including the Federal Energy Regulatory Commission (“FERC”), which evaluated Iroquois’ application to construct the natural gas pipeline. After preparing a final environmental impact statement (“FEIS”), FERC approved the project but required Iroquois to comply with many conditions including those contained in Appendices C and D of the FEIS certificate. See Iroquois Gas Transmission Sys. L.P., 53 FERC ¶ 61,194 (Nov. 14, 1990). Appendix D detailed stream and wetland construction and mitigation procedures, while Appendix C set out an erosion control, revegetation, and maintenance plan for all other disturbed areas. Iroquois also applied to the Army Corps of Engineers for a discharge permit pursuant to the CWA and the Rivers and Harbors Act, 33 U.S.C. § 403. The Corps identified two areas of the pipeline work as regulated by the CWA: “backfilling of trenches excavated in waterways and wetland areas, and the placement of any temporary fills in waters of the United States necessary to support construction activities.” Record of Decision for Application No. 89-1123-H by the Iroquois Gas Transmission System at 15. The Corps’ discharge permit, signed by Lieutenant Colonel Richard C. Boston, acting on behalf of Colonel R.M. Danielson, the Corps’ New York District Engineer, required, among other things, that Iroquois implement the environmental mitigation measures contained in Appendices C and D of the FEIS. III.The Indictment An indictment filed in the United States District Court for the Northern District of New York on October 16, 1996, charges that Iroquois, Phenix, the individual defendants, and certain other individuals violated many of the conditions in the Corps’ permit. The first count of the indictment charges a conspiracy to defraud the United States and violate the CWA, the mail fraud statute, and the bank false reporting stab-ute. Counts two through thirty-one allege knowing and negligent violations of the permit conditions. IV.. District Court Proceedings After obtaining a bill of particulars, defendants moved to dismiss counts two through thirty-one of the indictment. The district court granted defendants’ motion on alternative grounds. See United States v. Mango, 997 F.Supp. 264, 299 (N.D.N.Y.1998). The court first dismissed counts two through thirty-one because the CWA forbids delegation of permit issuing authority to anyone other than the Chief. See id. at 281. In a ruling not questioned on appeal, the court alternatively dismissed counts fourteen through nineteen pursuant to the rule of lenity, because the conditions incorporated in those counts were ambiguous. See id. at 290-91. The court also indicated that even absent the delegation problem, it would dismiss counts eight through thirteen and twenty-six through thirty-one as well as preclude the government from relying on certain particulars concerning counts two through seven and twenty through twenty-five, because these counts and specifications did not relate to the discharge of dredged or fill materials into the navigable waters of the United States. See id. at 298. These counts and particulars derive from Appendices C and D. The district court did not dismiss count one, the conspiracy count, and the government does not appeal from the district court’s dismissal of counts fourteen through nineteen. V. Scope of Appeal The government appeals from the dismissal of counts two through thirteen and twenty through thirty-one of the indictment. DISCUSSION The district court correctly assumed the truth of the facts described in the indictment, see Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952) but dismissed counts two through thirty-one because it found them insufficient as a matter of law. We review the court’s conclusions of law de novo. See United States v. Alfonso, 143 F.3d 772, 775 (2d Cir.1998). I. Delegation By regulation, see 33 C.F.R. § 325.8(b), the Secretary clearly provided for the delegation of his CWA permitting authority to district engineers and their designees. The district court concluded that this delegation was invalid because the language of 33 U.S.C. § 1344 “unambiguously demonstrates that Congress intended to limit the Secretary’s delegation authority to the Chief of Engineers.” Mango, 997 F.Supp. at 277. As noted previously, the CWA assigns permitting responsibility to the Secretary “acting through the Chief of Engineers.” The district court found — and defendants agree— that this wording indicates a congressional intention to preclude any further delegation. Defendants also argue that we must strictly construe the Secretary’s ability to delegate the power to set standards of criminal conduct. In response, the government contends that Congress historically has used the phrase “acting through the Chief of Engineers” to assign responsibilities to the Corps rather than to some other branch of the army. Alternatively, the government urges that the phrase is at best ambiguous, requiring acceptance of the Secretary’s reasonable interpretation of the statute as allowing subdelegation. We first consider defendants’ argument that because Section 1344 allows the Secretary to set permit conditions and Section 1319 sets criminal penalties for violation of these conditions, we must construe the Secretary’s power to subdelegate narrowly. Defendants cite' — and we found — no authority directly supporting this proposition. Therefore, we turn to ordinary principles of statutory construction that have been used in both the criminal and civil context. Those principles require that we first determine whether the district court correctly found that the CWA unambiguously precludes delegation to anyone other than the Chief because “[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, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If congressional intent is not clear, we ordinarily will defer to “[a]n agency’s construction of a statute it is charged with enforcing ... if it is reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bay view Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Defendants rely, in the main, on two principles of statutory construction to support their claim that Section 1344 unambiguously precludes delegation. First they argue that application of the maxim, expressio unius est exelusio alterius, compels the conclusion that by delegating permit-issuing authority to the Secretary “acting through the Chief of Engineers,” Congress intended not to allow any other delegation. This maxim is not always a reliable guide because Congress may mention a specific official only to make it clear that this official has a particular power rather than to exclude delegation to other officials. See Shook v. District of Columbia Financial Responsibility and Management Assistance Auth., 182 F.3d 775, 782 (D.C.Cir.1998). Nevertheless, a specific grant of power to an executive official to delegate a function to a named subordinate may be persuasive evidence that Congress did not intend subdelegation to any other official. See United States v. Giordano, 416 U.S. 505, 513, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); Shook, 132 F.3d at 782-83; Halverson v. Slater, 129 F.3d 180, 185 (D.C.Cir.1997). For several reasons, the cited cases do not dictate the outcome of this appeal. First, Section 1344(a) does not address delegation directly; instead, it says, “[t]he Secretary may issue permits ... for the discharge of dredged or fill material into the navigable waters.” 33 U.S.C. § 1344(a). Section 1344(d) defines Secretary as “the Secretary of the Army, acting through the Chief of Engineers.” The statutes construed in Shook and Hal-verson addressed much more specifically the question of who had the power to perform the activity in question. See Shook, 132 F.3d at 777, 782-83 (interpreting portion of District of Columbia Code that allowed Board of Education “to delegate any of its authority to the Superintendent” not to allow District of Columbia Control Board — the successor by statute to the Board of Education — to delegate powers to newly created Board of Trustees); Halverson, 129 F.3d at 184-85 (interpreting statute that allowed Secretary of Transportation to “delegate the duties and powers conferred by this subtitle ... to any officer, employee, or member of the Coast Guard, and ... provide for the sub-delegation of those duties and powers” to preclude delegation to a non-Coast Guard official in light of statutory purposes). Moreover, the Secretary of the Army has not — as did the Secretary of Transportation in Halverson and the District of Columbia Control Board in Shook —attempted to delegate his powers to an outside agency; instead he delegated within his own branch of the armed services. This distinction is important. See Shook, 132 F.3d at 783-84 (indicating that subdelegation within an agency presented a closer question than external subdelegation). The language that the Court construed in Giordano is closer to the language of the CWA. In Giordano, the Court considered 18 U.S.C. § 2516 which provided that “[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for ... an order authorizing a [wiretap].” Id., 416 U.S. at 538, 94 S.Ct. 1820. The Court held that this language — viewed in the light of (1) Congress’ intent to prohibit all wiretaps except those authorized under stringent conditions and (2) legislative history indicating that Congress had considered and rejected a provision allowing subdelegation — required the conclusion that Congress intended to preclude delegation to anyone other than an Assistant Attorney General. See id. at 514-20, 94 S.Ct. 1820. Although Section 1344 contains language somewhat similar to the wiretap statute, no legislative history suggests that Congress considered and rejected subdelegation. Therefore, the Giordano holding also is distinguishable. Because (1) the CWA does not address delegation authority specifically; (2) the question in this case is one of internal rather than external subdelegation; (3) there is no legislative history indicating that Congress considered but rejected sub-delegation; and (4) the overall intent of the CWA is consistent with authority to subdelegate, we conclude that the use of the phrase “acting through the Chief of Engineers” does not clearly indicate an intent to prohibit subdelegation. Defendants also argue that Congress’ specific authorization of subdelegation by the Secretary in other contexts indicates that Congress did not authorize subdelegation here. However, the statute on which defendants rely, 16 U.S.C. § 460d, is not part of the CWA. Although specific authority to subdelegate one power within a given piece of legislation may indicate that Congress did not intend to allow subdele-gation of other powers, see, e.g., Cudahy Packing, 315 U.S. at 364, 62 S.Ct. 651, we do not read specific allowance of subdele-gation in a different act as a strong indicator of legislative intent in the CWA. Having found that neither of defendants’ statutory interpretation arguments supports its contention that the CWA unambiguously precludes delegation, we must determine whether the Secretary reasonably interpreted the statute to allow sub-delegation. “[Ajcting through the Chief of Engineers” can be reac[ either to identify the official through whom the Secretary must act or to identify the branch of the Army that will perform the permit-issuing function. Moreover, in 1970 — two years before the enactment of the CWA — Congress passed a statute that authorized the Secretary “acting through the Chief of Engineers ... to construct, operate, and maintain ... contained spoil disposal facilities.” 33 U.S.C. § 1293a(a). Four years after enactment of the CWA, Congress authorized the Secretary “acting through the Chief of Engineers ... to place on the beaches of such State beach-quality sand.” 33 U.S.C. § 426j. Clearly, Congress did not intend the Chief, a lieutenant general, personally to maintain spoil disposal facilities or to spread sand on the beaches. Thus, the use of “acting through the Chief of Engineers” in these statutes supports the Secretary’s argument that Congress merely intended to assign the permit-issuing function to the Corps. Although defendants point to other statutes in which Congress used the same phrase but probably intended to require the Chief himself to act, this inconsistency proves only that the use of the phrase “acting through the Chief of Engineers” is not a reliable guide to congressional intent on sub delegation. Because the statutory language is ambiguous, we must decide whether the Secretary’s interpretation is reasonable. If it is, we must accept it. We conclude that the Secretary’s interpretation is reasonable for several reasons. First, Congress has used the same language in other statutes that contemplate responsibility for a duty at a level below the Chiefs. Second, the magnitude of the task of issuing permits suggests that Congress intended to allow subordinate Corps officials to issue permits and specify permit conditions. See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 122, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947). We found in 1988 that the Corps processes approximately 11,000 permit applications per year. See Bersani v. United States Environmental Protection Agency, 850 F.2d 36, 40 (2d Cir.1988). Defendants argue, however, that when Congress enacted the CWA, the Corps had no jurisdiction over wetlands, making the 1985 figures too high. In defendants’ view, the 1976 figure of 1,118 permits is more relevant. See H.R.Rep. No. 95-139, 95th Cong., 1st Sess. at 1253 (1977). Even if the relevant number is 1,100 rather than 11,000, the magnitude of the task is such that it is reasonable to assume Congress did not contemplate it would be performed by one person. Moreover, as with most government programs, Congress reasonably could have assumed substantial growth. Finally, the Secretary’s interpretation is longstanding, and Congress has not acted to correct it. Cf. CFTC v. Schor, 478 U.S. 833, 846, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (“[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” (Internal citations omitted)). Under these circumstances, we find the Secretary reasonably interpreted Section 1344 to permit subdelegation of permit-issuing authority to district engineers and their designees. II. The Permit Conditions In addition to maintaining that the Secretary impermissibly delegated his permit-issuing authority to district engineers, the defendants, in district court, also attacked the permit’s incorporation, via Special Condition 10, of conditions from the FEIS, arguing that (1) Special Condition 10 does not require that defendants precisely carry out each of the permit conditions; (2) the Secretary has jurisdiction to impose only those conditions that directly relate to the discharge of dredged or fill material into the navigable waters of the United States, and most of the FEIS conditions do not satisfy this test; and (3) because the district engineer lacked power to condition Iroquois’ permit on some of the FEIS conditions, he lacked power to incorporate any of them. The district court held that Special Condition 10, which states that Iroquois “shall implement” the conditions contained in Appendices C and D to the FEIS, clearly incorporated the FEIS conditions into the permit and required that defendants comply with those conditions. See Mango, 997 F.Supp. at 291-92. The court also rejected defendants’ all-or-nothing approach to the conditions. See id. at 292. However, the court accepted defendants’ argument that most of the FEIS conditions went beyond the Corps’ regulatory authority and therefore were invalid. See id. at 296-99. Holding that the Corps could impose only permit conditions that “directly relate” to the discharge of dredged or fill material into the navigable waters of the United States, the court dismissed counts eight through thirteen and twenty-six through thirty-one of the indictment and precluded the government from relying on any of the permit conditions in proving counts twenty through twenty-five and from relying on all but five of the FEIS conditions to prove counts two through seven. See id. at 299. The district court’s decision allows the government to prove violations of permit provisions regulating perennial stream crossing procedures, FEIS Appendix D, I(D)(6)-(8); mandating the use of certain construction equipment where standing water or saturated soils were present; and forbidding the use of dirt, rockfill, tree stumps, or brush riprap to stabilize the right of way in wetland areas, D, II(C)(10), (11). See id. However, the government cannot rely on violations of any of the other permit conditions including requirements that the defendants “[ijnstall and maintain sediment filter devices at [the] edge of all wetlands” until the right of way revegetation was complete, FEIS Appendix D, 11(D)(2); “not store hazardous materials, chemicals, fuels, and lubricating oils; refuel construction equipment; or perform concrete coating activities, within 100 feet of streambanks or within any municipal watershed area,” id., 1(A)(3); and place trench spoil “at least 10 feet away from streambanks,” id., 1(B)(1). The statute authorizes the Secretary to “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Because the Secretary’s jurisdiction is limited to the issuing of permits for such discharges, we agree with the district court that any conditions imposed in a permit must themselves be related to the discharge. Nevertheless, we reach a different conclusion from the district court regarding the nature of the relationship that is required. The CWA does not itself specify how closely the conditions must relate to the discharge. We therefore begin with the familiar premise that where the statute does not expressly speak to an issue, we will defer to the interpretation of the agency charged with enforcing the statute, provided it is reasonable and not in conflict with the expressed intent of Congress. See Riverside Bayview Homes, 474 U.S. at 131, 106 S.Ct. 455. Here deference is due to the reasonable interpretations of the Secretary and the Administrator as contained in the regulations they promulgated jointly, pursuant to 33 U.S.C. § 1344(b). These regulations indicate that permit conditions can be indirectly or directly related to the discharge as long as they are reasonably related to it. See, e.g., 40 C.F.R. § 230.1(c) (providing that the Secretary must consider whether the discharge will “have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern”); 230.76(d) (suggesting minimizing the adverse impact of a discharge by “[f]ol-lowing discharge procedures which avoid or minimize the disturbance of aesthetic features of an aquatic site or ecosystem”); and 230.74(b) (suggesting “[ejmploying appropriate maintenance and operation on equipment or machinery ...”) Moreover, the regulations reasonably interpret the statutory mandate that the Secretary consider the effect of discharges “on human health or welfare,” “ecosystem diversity,” and “esthetic, recreation and economic values,” 33 U.S.C. § 1343(c)(1)(A), (B), (C) (as referred to in 33 U.S.C. § 1344(b)), and imply that the district court’s requirement that permit conditions be directly related to a discharge is unduly restrictive. In our view, permit conditions are valid if they are reasonably related to the discharge, whether directly or indirectly. The CWA is reasonably interpreted to allow the Secretary to consider the cumulative effect of a discharge on an entire ecosystem rather than confining him to consideration of the effects of the permitted discharge on the river into which it is discharged. Like the district court, we are hampered by the government’s refusal to explain specifically why each of the permit conditions is related to the permitted discharges. See Mango, 997 F.Supp. at 297. On the record as it stands, we cannot determine with certainty which of the conditions adopted from the FEIS are reasonably related to the discharge and which, if any, are not. Therefore, we remand to the district court for consideration of the permit conditions under the standard announced herein. Because we have not yet found any of the permit conditions to be invalid, it is not necessary to consider defendants’ argument that if any of the conditions are invalid, they all must fall. However, defendants cite no authority for this argument, and we have found none. Defendants’ final argument is that all of the counts that are dependent on the conditions in Appendix C to the FEIS, which apply to “uncultivated and non-wetland areas and residential turfs disturbed by construction,” and certain portions of Appendix D regulating non-wetland areas are beyond the Corps’ jurisdiction, which is limited to the “waters of the United States.”- 33 C.F.R. § 328.1. Insofar as the conditions imposed are not reasonably related to a discharge into the waters of the United States, defendants are correct. However, if a condition requiring the defendants to take measures on dry land reasonably relates to a discharge into the navigable waters, it is valid. CONCLUSION For the reasons discussed, the judgment of the district court is reversed as to counts two through thirteen and twenty through thirty-one and remanded for further action in accordance with this opinion. . The individual states also play a significant role in implementing and enforcing the CWA. See, e.g., 33 U.S.C. § 1344(g), (h). . Iroquois pleaded guilty to multiple CWA felonies and agreed to pay $22 million in criminal fines. Iroquois also entered into an administrative consent order and civil consent decrees in each of the four federal jurisdictions — including the Northern District of New York — that the pipeline traverses. Iroquois was not named as a defendant in the instant indictment. . Although the Supreme Court in Touby v. United States, 500 U.S. 160, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) considered whether Congress must provide “more than an intelligible principle” when it "authorizes another Branch to promulgate regulations that contemplate criminal sanctions,” the court did not answer the question. See id. at 165-66, 111 S.Ct. 1752 (internal quotation marks omitted). The CWA does provide more than an intelligible principle to aid the Secretary or his delegee in setting permit conditions. See 33 U.S.C. §§ 1343(c), 1344(b). Therefore, delegation under the CWA would not be subject to attack even if Congress were required to provide detailed standards for permit conditions. . Defendants argue that we should not defer to the Secretary's interpretation because the Secretary shares authority to administer the CWA with the EPA Administrator. This argument fails in light of the Supreme Court’s deference to the Secretary's interpretation of the CWA in Riverside Bayview Homes. See id., 474 U.S. at 131, 106 S.Ct. 455. . Similarly, the legislative history of the statute addressed in Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895 (1942), indicated that Congress considered and rejected provisions that would have granted greater delegation authority. See id. at 366, 62 S.Ct. 651. Thus, defendants’ reliance on Cudahy also is misplaced. . This disposition allowed the government to prove these counts by establishing that defendants violated Special Condition 13 of the permit which required defendants to "remove in their entirety, any cofferdams, dewatering devices, log roads or other temporary structures or fills placed within the waters of the United States to facilitate pipeline installation, immediately upon cessation of the construction activity in that particular area.” . We reject the government's broader argument that its public interest regulations allow it to set conditions related to the entire activity involving the discharge. When properly read, the public interest regulations do not indicate an intent to regulate the entire activity rather than the permitted discharge. Although the regulation refers to the "proposed activity,” the activity that the Secretary permits pursuant to Section 1344 is the discharge. Therefore, the conditions must be related to the discharge itself.

Alaska Center for the Environment v. West

FARRIS, Circuit Judge. Alaska Center for the Environment appeals the district court’s order granting summary judgment to the Army Corps of Engineers under the Clean Water Act, 33 U.S.C. § 1251 et seq. Alaska Center argues that the Corps violated the CWA by wrongfully issuing five general permits for construction on wetlands in Anchorage. We affirm. I. BACKGROUND In 1994, the Corps announced that it would issue five general permits authorizing the filling of certain wetlands specified in the Anchorage Wetlands Management Plan. The permits allow specific discharges for five different categories of activities: GP 93-10 applies to residential fill pads, including site preparation and driveways; GP 93-11 applies to roads and other linear development; GP 93-12 applies to commercial, institutional, and community development; GP 93-13 applies to industrial developments; and GP 93-14 applies to wetlands, habitat, and water quality enhancement projects. The five-year general permits expire in late 1999 and potentially implicate 2,142 acres of wetlands. Based on analysis of pri- or years and the initial year of the present permits, however, the Corps concluded that only 360 acres would likely be affected. Alaska Center filed suit in 1995 seeking an injunction against development under the general permits. Following an initial remand to allow the Corps to reissue the permits with modifications, the district court granted summary judgment against Alaska Center. Alaska Center challenges both the Corps’ finding that the general permits authorize activities that are “similar in nature” and that the general permits authorize activities that have “minimal” individual and cumulative adverse environmental effects. Alaska Center also contends that the Corps illegally delegated regulatory authority under § 404 of the CWA to the Municipality of Anchorage. II. DISCUSSION We review de novo the district court’s grant of summary judgment. See Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1257-58 (9th Cir.1998). An agency decision should be set aside only if arbitrary and capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Review under the standard, though narrow, must be searching and careful. See Id. at 378, 109 S.Ct. 1851. The court must determine whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. See Id. The Clean Water Act is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the statute, the discharge of pollutants into navigable waters is unlawful unless authorized by permit. The term “pollutants” includes dredge or fill material. 33 U.S.C. § 1362(6). The term “navigable waters” includes wetlands. 33 U.S.C. § 1362(7); United States v. Pozsgai 999 F.2d 719, 727 (3d Cir.1993). The Corps may issue individual or general permits for the discharge of dredge or fill materials into wetlands. See 33 U.S.C. § 1344. This permit process is governed simultaneously by Corps Regulations, 33 C.F.R. §§ 320-29, and by EPA guidelines, 40 C.F.R. §§ 230.1-230.7. Individual permits for discharges issue only after notice, public hearings, and a case-by-case evaluation of a specific project. See 33 C.F.R. § 323.3(g); 33 U.S.C. § 1344(a). General permits, on the other hand, do not require the same site-specific analysis. Instead, they require a two-part inquiry into the similarity of the projects and their environmental effects. As stated by the statute, general permits may issue on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. 33 U.S.C. § 1344(e)(l)(emphasis added). The guidelines implementing this section provide that: A General Permit for a category of activities involving the discharge of dredged or fill material complies with the Guidelines if it meets the applicable restrictions on the discharge in § 230.10 and if the permitting authority determines that: (1) The activities in such category are similar in nature and similar in their impact upon water quality and the aquatic environment; (2) The activities in such category will have only minimal adverse effects when performed separately; and (3) The activities in such category will have only minimal cumulative adverse effects on water quality and the aquatic environment. 40 C.F.R. § 230.7(a). Thus, the general permits allow the Corps to circumvent the process of specific approval “where numerous applications for similar activities are likely_” 40 C.F.R. § 230.6(a). General permits may issue for only five years, and the Corps has the authority to revoke them if it determines that the environmental impact is more than minimal or that individual permits should be used. See 33 U.S.C. § 1344(e)(2). A project falling within the category of a general permit may proceed without further authorization if it meets specified conditions. 33 C.F.R. § 325.2(e)(2). The Corps also retains discretionary authority to require that any project proceed through the individual permitting process. 38 C.F.R. § 325.2(e)(2). A. SIMILAR IN NATURE Prior to issuing a general permit, the Corps must publish an evaluation including a “precise description of the activities to be permitted ... explaining why they are sufficiently similar in nature and in environmental impact to warrant regulation under a single General permit-” 40 C.F.R. § 230.7(b)(2). Alaska Center argues that the Corps failed to meet the separate “similar in nature” requirement because it considered, only the minimal environmental effects of the activities under the permits. Undoubtedly, the Corps placed great weight on ensuring that the activities allowed would each have a similar minimal effect on the environment. The Corps emphasized that “[t]he proposed GP’s are designed so that secondary impacts that might differentiate the activities proposed for authorization have been reduced such that environmental impacts would not now differ among the GPs.” Despite the apparent argument to the contrary, such considerations do not constitute arbitrary and capricious action. The regulations explicitly require the Corps to consider and explain why actions are “similar ... in environmental impact.” 40 C.F.R. § 230.7(b). The conditions satisfy this requirement. The general conditions in the permits include buffer zones to protect adjacent wetlands and waterbodies of higher environmental value; limits on the type of discharge materials; and a requirement that the applicant receive an initial opinion of compliance from the municipality. The special conditions, which make up the bulk of the permit document, provide further limitations which narrow application of the permits to a substantial degree. A brief review of various individual permits establishes this tailoring. -Permit 93-10 applies only to residential buildings. It does not allow any structure over 50 feet in height. Driveways are restricted to a maximum of 40 feet width and a length of 200 feet. -Permit 93-11 is limited to residential streets, alleys and collector streets no more than 75 feet in width. It also limits its application to linear development for items such as utility lines. Larger roads and nonlinear development are excluded. -Permit 93-12 is limited to those businesses listed in the Anchorage Municipal Code Title 21.35.020, and public and private institutions. The permit prohibits underground storage tanks; air pollutant sources other than normal heating and power; and anything above incidental use of hazardous substances for cleaning and maintenance. -Permit 93-13 applies only to industrial development whose fundamental purpose is the assembly, storage, and/or distribution of products constructed of inert materials. Activities in the open are limited to those connected with marshalling yards for storage and distribution of industrial products. Pursuant to the general conditions, the permit does not authorize natural resource processing, gravel mining, dry cleaning operations, battery transfer yards, auto repair garages, and other items. The question thus turns to whether the Corps could use the same types of conditions to satisfy the remaining “similar in nature” requirement of the regulations. There is no disagreement that the permits authorize a broad range of potential activities. For example, Permit 93-10 may be used for such items as single-family dwellings, two-family dwellings, row-houses, rooming homes, and other residential structures. See Anchorage Municipal Code Title 21.40. The parties’ dispute centers on a single issue: whether the Corps may issue a general permit to include such a range of activities it considers similar in nature, or whether the permit may only authorize a narrowly defined activity. The term “similar in nature” is undefined in the statute. In interpreting the statute, the Corps’ construction “is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Although phrased as such by Alaska Center, there is no argument that the regulations themselves are unreasonable or conflict with the intent of Congress. Instead, Alaska Center’s argument challenges the Corps’ interpretation of the implementing regulations. Alaska Center maintains that the regulations require a thorough public interest review prior to the issuance of a general permit. According to Alaska Center, the permits’ authorization of a broad range of activities precluded the Corps from making any particularized finding that a proposed activity would benefit the public interest more than it caused detriments. As with its interpretation of the statute, the court generally gives deference to the Corps’ interpretation of its own regulations. See Pyramid Lake Paiute Tribe v. Hodel, 882 F.2d 364, 369 (9th Cir.1989). The Corps’ interpretation is controlling unless plainly erroneous or inconsistent with the regulations. See Id. We cannot conclude that the Corps’ interpretation is either plainly erroneous or inconsistent with the regulations. The cdnditions stated above illustrate not only similarity of environmental effects, but also similarity in the nature of the projects. While it may be true that the regulations do not specifically distinguish between such structures as “single-family housing” and “two-family dwellings,” we are not persuaded that the general permitting process must necessarily require such fine distinctions. In terms of permitting for commercial uses, such distinctions would appear to blur the line between specific and general permits, rendering general permits virtually unavailable for commercial development. This may be a desirable result. However, such speculation does not lead to a finding that the Corps’ decision was plainly erroneous. We also reject Alaska Center’s argument that the Corps cannot make a sufficient public-interest analysis when its general permits allow a range of similarly confined activities. Such a result is belied by the record. The record reflects that the Corps did consider public interest in authorizing the activities. The permit evaluation shows that the Corps wished to provide predictability for property owners and reduce wetland processing time while simultaneously protecting higher value wetlands. Other portions of the evaluation list more specific considerations. For example, the evaluation notes the Corps’ consideration of such human-use characteristics as benefits to the local economy, impacts on traffic, and community cohesion. These considerations were clearly guided by the voluminous restrictions placed on the general permits. The Corps did not act arbitrarily and capriciously in using the restrictions to satisfy the “similar in nature” requirement. The Corps made a reasonable determination that it should consider the public interest in general types of activities and guaranteed that where the activities did differ, those differences would have a similar impact. B. MINIMAL IMPACTS Alaska Center also maintains that the Corps acted arbitrarily and capriciously by concluding that the discharges would have a minimal environmental impact. Alaska Center contends that the likely filling of 360 acres of wetlands and potential filling of over 2000 acres would harm the environment and would also break up the wetlands as a cohesive ecological unit. This is supported by letters from the EPA and studies by the Fish and Wildlife Service. The permitting process took into account the Anchorage Wetlands Management Plan. This plan was generated by the Municipality in conjunction with federal and state resource agencies. Under the plan, four wetland functions are evaluated: Hydrology, Habitat, Species Occurrence, and Social Function. The evaluation of these categories involves factors addressing a broad range of wetland functions. The Anchorage Wetlands Management Plan scored wetlands individually. Those wetlands with a high score were designated “A wetlands.” Sites with moderate scores received a “B wetland” designation. These included areas with a mixture of high and low value wetlands. Finally, the plan designates certain “C wetlands” — those in which wetland functions were not significant and were more often minimal. Although the Corps relied to some extent on the Anchorage plan, it also conducted its own analysis. The record shows that the Corps recognized that the plan graded wetlands on a large-scale basis. Thus, where the sites included an area of mixed “C wetlands” and higher value wetlands, the Corps used the higher scores for purposes of creating site-specific limitations to minimize overall impacts. After visiting the sites, the Corps determined that certain higher values could be protected by limitations such as setbacks for development. According to the Corps, most of the “C wetlands” functions had already been compromised. Overall, the Corps made efforts to designate only certain sites for development where higher value wetlands could be protected. Given this process, the Corps’ actions were not arbitrary and capricious. The record does not support Alaska Center’s allegations that the Corps simply designated whole classes of wetlands as unworthy of protection. Nor is there any allegation that the Corps ignored the reports from other agencies. It did not. Instead, the Corps considered the relevant factors and came to an opposite conclusion. Although Alaska Center disagrees with the Corps’ methodology and conclusions, such disagreement does not render the decision arbitrary and capricious. Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (1989). C. IMPROPER DELEGATION OF AUTHORITY Finally, Alaska Center claims that the Corps improperly delegated authority to the Municipality to administer the permits. Alaska Center argues that because the scope of the general permits made it impossible to predict all environmental effects, the Corps improperly established a set of subjective conditions to be considered by the Municipality. Assiniboine and Sioux Tribes v. Bd. of Oil and Gas Conservation, 792 F.2d 782, 795-96 (9th Cir.1986). The permits call for some Municipality involvement. Special condition 3 requires that before an individual may utilize any of the permits, he or she must first obtain an “opinion of compliance” from the Municipality. Upon application, the Municipality determines whether the proposed discharge affects a “C wetland” and meets the conditions in the permits. The special condition also allows the Municipality to impose additional conditions on a proposed project as long as the condition does “not conflict with or reduce the requirements” of the permits. In addition, permits 93-11 through 93-13 also require pre-construction notification to the Corps prior to certain projects. Once an applicant receives the opinion of compliance, no further action by the Corps is necessary to begin a project. The Municipality is expected to confer with the Corps on borderline proposals and shall give quarterly reports of all activities under the permits. Review of the law and the record illustrates that there was no impermissible delegation, only an attempt to coordinate activity. Once a permit is validly issued, a project complying with its terms does not require any further action by the Corps. 33 C.F.R. § 325.2(e)(2). As noted by the Corps, the provision for review by the Municipality could be eliminated altogether. Consistent with the language of the permits, the provision simply provides for additional, consistent protections by the Municipality. And the process does nothing to eliminate the ultimate responsibility of the Corps to ensure compliance. As stated in the amended permit document, the “opinion of compliance is not legally binding....” Instead, applicants proceed at them own risk. The Corps “retains its full legal authority and may suspend use of or find a violation of the [permits] at any time ... even if the Municipality has issued an ‘opinion of compliance.’ ” The Corps did not unlawfully delegate authority. AFFIRMED. . The district court limited its analysis to the potential impact of the 360 acres likely to be filled. It is unclear whether Alaska Center challenges this decision as a matter of law. Instead, Alaska Center asserts that filling of even 360 acres would cause more than a minimal cumulative impact. Limiting our analysis to the 360 acre figure, we disagree. To the extent Alaska Center argues that we must consider all 2,142 acres of wetlands potentially affected, an argument not supported with authority in its brief, we reject the contention. We note that Corps regulations provide that "[t]o predict cumulative effects, the evaluation shall include the number of activities likely to be regulated under a General permit....” 40 C.F.R. § 230.7(b)(3). The Corps followed this regulation by adopting a finding which excluded those acres unlikely to be filled from its analysis of minimal impact. The Corps’ actions were reasonable. In fact, it appears that any proper assessment of impact should automatically take into account the area likely to be affected.

Fund for Animals, Inc. v. Rice

DUBINA, Circuit Judge: The Plaintiffs-Appellants (“the Plaintiffs”), seek to prevent the construction of a municipal landfill on a site in Sarasota County, Florida, that the Plaintiffs claim is an indispensable habitat for the highly endangered Florida Panther and also home to the threatened Eastern Indigo Snake. The Plaintiffs bring this case before us to challenge the district court’s grant of summary judgment in favor of the Defendants-Appellees (“the Defendants”). The district court’s challenged judgment has thus far allowed Sarasota County to proceed with construction of the landfill. For the reasons stated below, we affirm the district court’s judgment. I. BACKGROUND A The Florida Panther and the Eastern Indigo Snake The Florida Panther (Felis concolor corgi) was listed as endangered in 1967. See 32 Fed.Reg. 4001. This panther, which is a subspecies of the cougar, “is a large, slender cat, tawny above and whitish below.” David S. Maehr, The Florida Panther, in 1 Rare and Endangered Biota of Florida 176 (Stephen R. Humphrey et al. eds., 1992) (hereinafter “Maehr”). According to the Fish and Wildlife Service (“the F.W.S.”), the Florida Panther is “one of the most endangered large mammals in the world.” F.W.S. Biological Opinion for the Sarasota Landfill Project at 10 (April 3, 1995) (hereinafter “F.W.S. Opinion”). Although the Florida Panther once ranged throughout the Southeastern United States, it has been reduced to a single population in south Florida. The “geographic isolation, habitat loss, small population size, and associated inbreeding” of the remaining population have resulted in a significant loss of health and genetic variability in Florida Panthers. F.W.S. Opinion at 10-11. According to current estimates, there are only thirty to fifty adult Florida Panthers left in the wild. Id. However, the record in this case indicates that there have been no confirmed sightings of the Florida Panther in the area in which the landfill is to be bruit. The Eastern Indigo Snake (Drymarchon corais cowperi) was listed as threatened in 1978. See 43 Fed.Reg. 4028. Measuring up to 8$ feet, this docile, nonpoisonous snake is the longest found in North America. Paul E. Mohler, The Eastern Indigo Snake, in 3 Bare and Endangered Biota of Florida 181 (Paul E. Mohler et al. eds. 1992) (hereinafter “Mohler”). Although this iridescent black snake once ranged throughout Florida, Georgia, southeastern South Carolina, southern Alabama, and southern Mississippi, its known populations are now restricted to certain areas in Florida and Georgia. F.W.S. Opinion at 24. The F.W.S. has not yet designated any critical habitat for the Eastern Indigo Snake. B. The Landfill On November 22, 1989, the United States Army Corps of Engineers (“the Corps”) received an application from Sarasota County, Florida (“Sarasota County” or “the County”) for a permit under Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. The proposed project for which Sarasota County sought a permit consists of constructing an 895-acre landfill and required ancillary structures on a 6,150-acre site known as the ‘Walton Tract.” The Walton Tract is located in west central Sarasota County, north of the Caloosahatchee River, west of the Myakka River, and just southwest of the Myakka River State Park. According to current projections, the fill material for the landfill will impact approximately seventy-four acres of isolated wetlands. The project also includes construction of a roadway extension (“the Knights Trail Road extension”), consisting of approximately 2.5 miles of new road and impacting 0.47 acres of wetlands. During June of 1990, the Corps dispersed notice of Sarasota County’s application to government agencies, private organizations, and other interested persons. The notice invited public comment on the landfill proposal. Two months later, the F.W.S. issued a Biological Opinion consenting to the project. However, the Environmental Protection Agency (“the E.P.A.”) recommended denial of the permit under Section 404(b)(1) of the guidelines promulgated pursuant to the Clean Water Act. At that time, Sarasota County projected that the landfill would affect 120 acres of wetlands. The following year, Sarasota County submitted an alternative analysis, which included modifications of the project calculated to reduce the prospective effect on wetlands. Four sites, labeled D, E, F (the Walton Tract), and G, were proposed for the landfill. During September of 1993, Sarasota County submitted a revised plan that would reduce the landfill’s effect on wetlands from 120 acres to approximately seventy-four acres. In February of 1994, the E.P.A. notified the Corps that it no longer objected to the issuance of the permit. At the end of May 1994, the Corps completed an Environmental Assessment and Statement of Findings, determining that no environmental impact statement was required. In addition, the Corps announced that a public hearing would not benefit the decision-making process. After nearly five years of administrative review, the Corps approved the requested permit on June 3, 1994. On August 10,1994, the Corps verified the applicability of Nationwide Permit No. 26 to Sarasota County’s proposal to fill 0.47 acre of wetlands as part of the Knight’s Trail Road extension project. On June 17, 1994, the Plaintiffs submitted a sixty-day notice of intent to sue. The Plaintiffs alleged violations of the Clean Water Act and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1534-44. Two months later, the F.W.S. requested resumption of § 7 consultation under the ESA to allow consideration of any potential effect on the Florida Panther and the Eastern Indigo Snake. In October of 1994, the F.W.S. issued its first Biological Opinion addressing concerns regarding the Florida Panther and the Eastern Indigo Snake. The Opinion concluded that the project was unlikely to jeopardize further the existence of either the Florida Panther or the Eastern Indigo Snake. However, it did include an “incidental take” statement for the Eastern Indigo Snake and recommendations for Florida Panther conservation, wetland preservation, and a monitoring program. The Corps incorporated the F.W.S.’s recommendations and modified Sarasota County’s permit on November 14, 1994. Two weeks later, the Plaintiffs commenced an action in federal district court against the Corps, the F.W.S., the E.P.A., and the Sarasota County Administrator. In response to the suit, the F.W.S. requested that the Corps resume § 7 consultation on the permit. The Corps suspended Sarasota County’s permit the next day, and on February 7,1995, the Corps also suspended its verification of coverage for discharge of fill associated with the Knight’s Trail Road extension project. In April of 1995, the F.W.S. issued to the Corps its second Biological Opinion addressing concerns regarding the Florida Panther and the Eastern Indigo Snake. The Opinion included both an “incidental take” statement for the Eastern Indigo Snake and conservation recommendations for the Florida Panther. This Opinion, which superseded the F.W.S.’s previous Biological Opinion, again concluded that the proposed project was unlikely to jeopardize the continued existence of either the Florida Panther or the Eastern Indigo Snake. See F.W.S. Opinion at l. On April 12, 1995, the Plaintiffs submitted comments to the Corps on the F.W.S.’s new Biological Opinion. The next day, the Corps determined, based on the F.W.S.’s Biological Opinion and the Corps’ independent environmental assessment, that reinstatement of the permit to dredge and fill seventy-four acres of wetlands with additional modifications was in the public interest. Thus, the modified permit was reinstated on April 13,1995. Following final issuance of the permit, the Plaintiffs filed their Second Amended Complaint, which raised claims under the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70d. The complaint requested declaratory and injunctive relief. Sarasota County agreed to halt construction temporarily to allow the district court time to reach a considered decision after full briefing on the merits. In return, the Plaintiffs consented to expedite the process of district court review. In particular, the parties agreed to submit the case to the court on cross-motions for summary judgment. The district court heard oral argument on June 29,1995. During oral argument, the Plaintiffs requested leave of the court, should their summary judgment motion be denied, to pursue discovery on the issue of whether United States Senator Bob Graham (D-Florida) had improperly intervened on Sarasota County’s behalf. The Plaintiffs based their discovery request on a memorandum that indicated that Senator Graham had contacted the Attorney General regarding the litigation and was working to see if the Department of Justice would withdraw a recommendation that a draft environmental assessment of the project be made available for public comment. On October 12, 1995, the district court granted summary judgment in favor of Sarasota County and denied the Plaintiffs’ contingent request for discovery. The Plaintiffs filed a notice of appeal and asked this court to grant an emergency injunction prohibiting Sarasota County from commencing construction of the new facility until resolution of the appeal. This court denied the Plaintiffs’ emergency motion for an injunction pending appeal in an order dated October 26, 1995, and set an expedited briefing schedule. II. STATEMENT OF THE ISSUES (1) Whether the district court erred in finding that the Corps did not act arbitrarily or capriciously in making the following three decisions: A to grant a permit to fill seventy-four acres of wetland on the Walton Tract for a county landfill; B. not to hold its own public hearing on the project; and C. not to prepare an Environmental Impact Statement under NEPA (2) Whether the district court erred in finding that the F.W.S. did not violate the ESA by issuing “no jeopardy” Biological Opinions and in finding that the Corps did not act arbitrarily or capriciously in relying on those Opinions. (3) Whether the district court erred in denying the Plaintiffs an opportunity to take discovery on the extent to which the Corps’ decision may have been influenced by Senator Graham’s intervention. III. STANDARDS OF REVIEW The standard of review applicable to the main issues in this case is provided by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, which states that a court may set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). On appeal, this court, in reviewing the administrative record, applies the same arbitrary and capricious standard of review utilized by the district court. North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir.1990). As we have explained, this standard is exceedingly deferential: To determine whether an agency decision was arbitrary and capricious, the reviewing 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.’ This inquiry must be ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ Aong the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal; ‘[administrative decisions should be set aside in this context ... only for substantial procedural or substantive reasons as mandated by statute, ... not simply because the court is unhappy with the result reached.’ The agency must use its best judgment in balancing the substantive issues. The reviewing court is not authorized to substitute its judgment for that of the agency concerning the wisdom or prudence of the proposed action. Skinner, 903 F.2d at 1538-40 (footnotes and citations omitted) (emphasis added). See also Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The standard of review applicable to the district court’s decision regarding discovery is the abuse of discretion standard. See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466 (11th Cir.1984). IV. DISCUSSION This court recognizes that, with respect to both the Florida Panther and the Eastern Indigo Snake, “[t]he most insidious and far reaching threat to the survival of [the] species is habitat loss or degradation.” Mohler at 184 (regarding the Eastern Indigo Snake); accord Maehr at 180 (regarding the Florida Panther). The present case, however, involves a challenge to administrative action governed by the APA. Therefore, we can set aside the federal agencies’ actions here only if we find that the agencies abused their discretion, or acted arbitrarily, capriciously, or contrary to law. See Skinner, 903 F.2d at 1538-39. In this case, it is readily apparent that in approving the landfill location the federal agencies acted in a manner that was not an abuse of discretion, arbitrary, capricious, or contrary to law. Accordingly, we will not set aside the federal agencies’ actions. A Challenges Under The Clean Water Act. The CWA prohibits the discharge of pollutants, including dredged spoil, into the waters of the United States, except in compliance with various sections of the CWA including Section 404. 33 U.S.C. § 1311(a). Section 404(a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredge or fill material into waters of the United States. 33 U.S.C. § 1344(a). The Corps may issue individual permits on a case-by-ease basis, or it may issue general permits on a state, regional, or nationwide basis. 33 U.S.C. § 1344(a), (e). The Plaintiffs allege that the Corps violated the substantive and procedural requirements of the CWA in three ways: (1) by not choosing an alternative site where the landfill would have a less adverse impact on wetlands; (2) by not considering the cumulative impact of the permitting decision; and (3) by not giving notice and an opportunity for a public hearing on the permit. We consider each of these contentions in turn. 1. Alternative Sites The Plaintiffs’ primary argument is that the Corps ignored alternative sites where the landfill would have had less of an impact on the aquatic ecosystem. Under applicable Section 404 guidelines, a discharge of dredge or fill will not be permitted if, among other things, there is a “practicable alternative” to the proposed discharge that would have a less adverse impact on the aquatic ecosystem. 33 U.S.C. § 1344(b)(1); 40 C.F.R. § 230.10(a). An alternative is considered practicable if “it is available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The guidelines create a rebuttable presumption that practicable alternatives are available where the activity associated with a proposed discharge would occur on a wetland and is not water dependent. 40 C.F.R. § 230.10(a)(3). If the Corps finds that the permit complies with the Section 404(b)(1) guidelines, the permit “will be granted unless the district engineer determines that it would be contrary to the public interest.” 33 C.F.R. § 320.4(a)(1). The public interest review evaluates “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” Id. According to the Plaintiffs, Sarasota County itself identified three such practicable alternatives, and use of any of these sites would result in less harm to the environment than use of the Walton Tract. The Plaintiffs rely heavily on a particular section of a 1991 study performed by Sarasota County in which the County considered alternatives to the Walton Tract. As part of this study, Sarasota County assigned a numerical “environmental score” to each of the four potential sites. The scoring, system was designed to give higher scores to those sites most suited for a landfill. As the following point totals illustrate, the Walton Tract received the lowest numerical score of the four tracts in the analysis: Site D — 39 points; Site E — 39 points; Site F (the Walton Tract) — 34 points; and Site G — 41 points. Nonetheless, the Plaintiffs’ argument that an alternative to the Walton Tract should have been chosen is meritless for two reasons. First, the ranking was done by Sarasota County and not the Corps, and the Corps is not bound by an applicant’s ranking system. In fact, the Corps conducts its own independent evaluation, and its practicable alternative analysis is not susceptible to numerical precision, but instead requires a balancing of the applicant’s needs and environmental concerns. See Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989); Louisiana Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985) (per curiam). Second, the Corps and Sarasota County point to numerous reasons to explain why, although the Walton Tract received the lowest environmental score, it was nonetheless the most suited for placement of a landfill. Specifically, our review of the record persuades us that the Corps did not act contrary to, but instead adhered to, the sequencing preference expressed in the CWA regulations: (1) avoidance, (2) minimization, and (3) compensatory mitigation. See 33 C.F.R. § 320.4(r); 40 C.F.R. § 230.10. As its first task, the Corps determined that there was no alternative site available that would avoid any impact on wetlands. Had a suitable upland site existed, such a site would have been entitled to a presumption that it was a practical alternative. See 40 C.F.R. § 230.10(a)(3). Each of the four highest ranking sites contain scattered, isolated wetlands: Site D is 19% wetlands, Site E is 22% wetlands, Site G is 13% wetlands, and the Walton Tract is 22% wetlands. A landfill of 895 acres in Sarasota County would involve impacts on aquatic ecosystems (i.e., filling of wetlands) and raise the same Section 404 permitting concerns no matter which of the four sites was chosen. Since the Plaintiffs have not identified an 895-acre parcel of contiguous uplands in all of Sarasota County, it is not clear that the presumption established by 40 C.F.R. § 230.10(a)(3) would ever apply in this case. The absence of a suitable upland site required the Corps to analyze all suitable alternatives. In this case, each of the alternative sites poses its own environmental problems which led the Corps to determine that it was less suitable for the landfill than the Walton Tract. Site D contains wetlands across its southern boundary, including the headwaters for a stream know as South Creek. The site contains ninety-two acres of wetlands, which is eighteen more acres of wetlands than would be filled by the project if done on the Walton Tract. Most notably, Site D is confirmed to be a nesting site for the Bald Eagle (Haliaeetus leucocephalus ). Site E borders the Myakka River State Park and contains two large wetland systems that drain to both the Myakka River and a waterway called the Cow Pen Slough. Site E contains sixty-one acres of wetlands. Presence of a state listed species, the Florida Sandhill Crane (Grus canadensis), was confirmed on the site. Moreover, any landfill located on Site G would have been within the Myakka River watershed. The Corps noted the probable presence of the Eastern Indigo Snake on Site G, and Site G was also designated a “Priority 1 Florida Panther habitat.” By contrast, the Walton Tract possesses characteristics that the Corps considered to be significant environmental advantages. Each of the other sites is considerably smaller than the Walton Tract: Site D is 2,130 acres, Site E is 3,360 acres, and Site G is 2,100 acres. The Walton Tract is 6,150 acres. Thus, the site is large enough to provide a broad natural vegetative buffer around all sides of the landfill. The large size of the tract also allows a substantial buffer between the landfill and adjoining areas. Sarasota County has zoned approximately 2,971 acres on the site as a conservation area, which includes the most valuable areas of upland wetland habitat on the Walton Tract and adjoins other preserve areas off-site. These preserved lands combine with adjacent properties to form a continuous unit of potentially suitable Florida Panther habitat and serve as a barrier between the Myakka River ecosystem and further development from the west. Where, as here, filling of wetlands cannot be avoided, then “appropriate and practicable steps” must be taken to minimize the potential adverse impacts of the discharge on wetlands. 40 C.F.R. § 230.10(d). While the original design of the landfill would have impacted approximately 120 acres, Sarasota County subsequently scaled down the project so that wetland impacts would be reduced to approximately seventy-four acres. Furthermore, although the project will eliminate approximately seventy-four acres of isolated wetlands, the large size of the Walton Tract allows on-site mitigation. Sarasota County is replacing the lost acreage with approximately seventy acres of wet prairie habitat in the northeast corner of the tract and enhancing and restoring an additional 262 acres of wetlands. While wetlands will be lost, a greater acreage of higher quality wetlands will be restored and enhanced, resulting in no net loss of wetland resources. See, e.g., National Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1346 (8th Cir.1994) (affirming permit where no net loss of nation’s wetlands); see also Town of Norfolk v. United States Army Corps of Eng’rs., 968 F.2d 1438, 1449 (1st Cir.1992); Friends of the Earth v. Hintz, 800 F.2d 822, 836 (9th Cir.1984). In discussing the alternatives analysis, the district court did not suggest, nor do we, that practicable alternatives may be ignored because of the mitigation potential of a site, as the Plaintiffs claim. To the contrary, the district court recognized, as do we, that the Corps had taken into account all the considerations which factor into the alternatives analysis. There is no substantial question as to whether Sarasota County needs a new landfill, because the County’s current landfill must close in 1999. Sarasota County, the Corps, the F.W.S., and the E.P.A. all scrutinized the project for over five years, and all agree that the Walton Tract is the most suitable site for the new landfill. Accordingly, insofar as the CWA practicable alternatives analysis is concerned, we hold that the Plaintiffs failed to demonstrate that the Corps acted arbitrarily and capriciously in granting a permit to fill seventy-four acres of wetlands on the Walton Tract. 2. Cumulative Impacts Secondarily, the Plaintiffs claim that the Corps failed to take into account the impact of its decision on the survival and recovery of the Florida Panther “in light of the many other projects that are currently under way or planned in South Florida.” Appellant’s Br. at 40-41. This argument is meritless. The Corps’ Statement of Findings clearly indicates that the Corps gave full consideration to all pertinent cumulative impacts. See A.R. 149 at 48-51. While recognizing that the project will eliminate some potential Florida Panther habitat, the Corps also determined that the “proposed project will not have an adverse impact on this unoccupied habitat” because the “preservation of 2,970 acres of land as part of the compensation for wetland impacts will preserve the option to provide for future Florida Panther habitat [should Florida Panthers be relocated there].” Id. The Plaintiffs’ assertion that destruction of Florida Panther habitat south of the Caloosahatchee River increases the need to preserve it in another region is thus met by the commitment of the 2,970 acres for future Florida Panther habitat. In sum, the Plaintiffs have failed to demonstrate that the Corps acted arbitrarily and capriciously in analyzing the cumulative effects of the proposed landfill. 3. Public Hearings The Plaintiffs’ third argument under the CWA is that the Corps violated requirements by failing to provide the public “any hearings” on the landfill project and by failing to provide the public with information regarding possible effects of the project on the Florida Panther and the Eastern Indigo Snake. The CWA mandates an “opportunity for public hearings.” See 33 U.S.C. § 1344(a). However, the statute does not state that the Corps itself must hold its own public hearings regardless of how many other hearings have been held on a project. The applicable regulations provide the Corps discretion to hold hearings on permit applications on an “as needed” basis. 33 C.F.R. § 327.4. If the Corps determines that it has the information necessary to reach a decision and that there is “no valid interest to be served by a hearing,” the Corps has the discretion not to hold one. Id. § 327.4(b). Here, the Corps recognized that two public hearings on the project had already been conducted under the state process. Given the information generated from these hearings and the voluminous written information submitted to the Corps by opponents of the project, including the Plaintiffs, the Corps concluded that holding its own additional public hearing was unlikely to generate any new information that was not already in the Corps’ possession. Moreover, the Plaintiffs point to no such information. Under these circumstances, we are persuaded that the Corps did not act arbitrarily or abuse its discretion in deciding to forego further public hearings on the matter. The Plaintiffs also argue that the public notice provided by the Corps was defective because: (1) it failed to specifically state that the project could potentially affect the Florida Panther and the Eastern Indigo Snake; and (2) it did not mention or illustrate the creation of a three-mile access road on the Walton Tract. These arguments are meritless. First, the notice of the permit application was widely disseminated in June of 1990 as required by 33 C.F.R. § 325.3(a). The notice informed the public that “several threatened or endangered species may be expected to be present on the site” and invited comment. Nothing in the applicable statutes or regulations requires a speeies-byspecies listing in the notice, and no further notice is required by statute or regulation. Second, while the Plaintiffs are correct that the public notice did not mention the access road, the applicable regulations give the Corps discretion about whether to issue supplemental public notice about such matters. Such notice is to be distributed by the district engineer “if in his view there is a change in the application data that would affect the public’s review of the proposal.” 33 C.F.R. 325.2(a)(2). The Corps considered the road to be a minor change in the application data and declined to issue supplemental notice. Given that the road’s construction affects less than one-half acre of additional wetlands, this conclusion was not arbitrary or capricious. B. Preparation of Environmental Impact Statement Under the National Environmental Policy Act. The Plaintiffs allege that the Corps’ decision not to prepare an Environmental Impact Statement violated NEPA and its implementing regulations by ignoring evidence of the project’s harmful effects. The NEPA requires a federal agency to prepare an Environmental Impact Statement if the agency proposes to undertake a “major federal action[ ] significantly affecting the quality of the" human environment.” 42 U.S.C. § 4332(2)(C). The statute imposes procedural but not substantive requirements on the agency. “NEPA does not work by mandating that agencies achieve particular substantive environmental results.” Marsh v. Oregon Natural Resources Council, 490 U.S. at 371, 109 S.Ct. at 1858. Instead, NEPA “works” by requiring that the environmental consequences of an action be studied before the proposed action is taken. Id. In deciding whether to prepare an Environmental Impact Statement for a proposed action, an agency must initially determine if the action is of a type that (1) normally requires the preparation of an Environmental Impact Statement, or (2) normally does not require either an Environmental Impact Statement or an Environmental Assessment. 40 C.F.R. § 1501.4(a). If the proposed action falls into neither category, the agency must prepare an Environmental Assessment. 40 C.F.R. § 1501.4(b). The Environmental Assessment is expected to be a brief and concise document containing sufficient evidence and analysis for the agency to determine whether to prepare an Environmental Impact Statement or a Finding of No Significant Impact (“FONSI”). “The purpose of an [Environmental Assessment] is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement.” River Road Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 449 (7th Cir.1985), cert. denied, 475 U.S. 1055, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986). The role of the court in reviewing the sufficiency of an agency’s consideration of environmental facts is limited both by the time in which the decision was made and by the statute mandating review. Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc., 435 U.S. 519, 555, 558, 98 S.Ct. 1197, 1217, 1219, 55 L.Ed.2d 460 (1978). Moreover, this Circuit has stated that a court’s “only role [under NEPA] is to ensure that the agency has taken a ‘hard look’ at the environmental consequences of the proposed action.” Druid Hills Civic Ass’n v. Federal Highway Admin., 772 F.2d 700, 709 (11th Cir.1985) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). The Plaintiffs contend that the Corps’ decision not to prepare an Environmental Impact Statement in this case fell short of the requisite “hard look” and that the Corps’ actions were a mere “paperwork exercise.” Appellants’ Br. at 43. In response, the Corps and Sarasota County argue that the Environmental Assessment prepared in this case satisfied the need for a hard look at the project and that the Environmental Assessment supported the Corps’ FONSI, which obviated the need to prepare an Environmental Impact Statement. The Corps prepared its Environmental Assessment for the project in April of 1995. The Environmental Assessment resulted in a FONSI, meaning that the Corps concluded that no Environmental Impact Statement was required for the project. At this point, the Corps had the benefit of two separate “no jeopardy” F.W.S. Biological Opinions regarding the Florida Panther and the Eastern Indigo Snake, approval by the E.P.A., voluminous information (including expert opinions) provided by the Plaintiffs, and information resulting from the two public hearings the state had held on the project. In light of the five preceding years of extensive administrative review, it would be difficult for us to conclude that the Corps failed to take a hard look at the project before deciding to forego the time and administrative costs of preparing an Environmental Impact Statement. Instead, we hold that the Corps did not act arbitrarily or capriciously by concluding that it had before it sufficient information to determine that the project would not significantly affect the quality of the human environment and that preparation of an Environmental Impact Statement was therefore unnecessary. As explained by the Supreme Court: [Ojnee 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. Stryker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979) (citation and internal quotation marks omitted). C. Challenges Pursuant to the Endangered Species Act. The Plaintiffs claim that § 4(f) of the ESA requires the Corps and the F.W.S. to implement the 1987 Recovery Plan for the Florida Panther and that the Corps and the F.W.S., in violation of the ESA, are failing in that regard. The Plaintiffs’ reasoning can be summarized as follows: (1) the ESA requires that recovery plans shall be developed and implemented for endangered species; (2) the F.W.S.’s 1987 Recovery Plan for the Florida Panther includes a “Habitat Preservation Plan” stating that “areas proposed for habitat preservation,” which include the Walton Tract, “should be monitored to the maximum extent possible to obviate adverse habitat modifications;” (3) the F.W.S. fails to “implement” the Recovery Plan if it issues a “no jeopardy” opinion for a suitable Florida Panther habitat as specified by the Recovery Plan; and (4) the Corps acted arbitrarily and capriciously in relying on the F.W.S. “no jeopardy” Opinions in granting a permit to Sarasota County. The Plaintiffs’ line of reasoning is flawed in several respects. First, the practical effect of the Plaintiffs’ position would be to elevate the 1987 Recovery Plan into a document with the force of law. We cannot take such an approach. Section 1533(f) makes it plain that recovery plans are for guidance purposes only. See 16 U.S.C. § 1533(f). By providing general guidance as to what is required in a recovery plan, the ESA “breathefs] discretion at every pore.” Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975). Second, the Plaintiffs’ position cannot be reconciled with the Corps’ statutory duty under § 7 of the ESA to consult with the F.W.S. about the environmental impact of proposed agency actions and the F.W.S.’s duty to arrive at a biological opinion based upon the best scientific data available. There would be absolutely no point to the consultation and preparation of a biological opinion if the F.W.S.’s opinion were predetermined based upon whether proposed project lands fell within the borders of properties discussed in one of any number of recovery plan documents. The Plaintiffs thus misconstrue the interrelationship and legal effect of the 1987 Recovery Plan on the 1995 F.W.S. Biological Opinion. Third, the F.W.S. identified reasonable justifications for issuing its “no jeopardy” Biological Opinions. To begin with, there have been no verified Florida Panther sightings either on the Walton Tract or near it within the last ten years. According to the Florida Panther Habitat Protection Plan (“HPP”), there is no occupied Florida Panther territory anywhere in Sarasota County. The HPP concludes, some anecdotal evidence notwithstanding, that no occupied Florida Panther habitat exists in Sarasota County or, for that matter, anywhere north of the Caloosahatchee River. Moreover, the contested land has not been designated as critical habitat under the ESA. It is a major flaw in the Plaintiffs’ argument to assume that the project will destroy or adversely modify the Florida Panther’s “critical habitat” when it has not been determined that this particular site is a critical habitat. The land included in the HPP’s recommendation for a critical habitat designation area is not anywhere in Sarasota County. In addition, the Walton Tract has not been identified as a reintroduction site for Florida Panthers, nor is it adjacent to any such sites. See F.W.S. Opinion at 20-21. Because the Walton Tract is not in proximity to areas of known Florida Panther use, it does not possess an important characteristic of areas suitable for Florida Panther reintroduetion. In summary, because the Recovery Plan is not a document with the force of law divesting all discretion and judgment from the F.W.S., and because the F.W.S. identified reasonable justifications for issuing “no jeopardy” Biological Opinions with respect to the Walton Tract, we hold that the Plaintiffs have failed to meet their burden of demonstrating that the F.W.S. acted arbitrarily and capriciously by issuing the Opinions. Likewise, we hold that the Plaintiffs have failed to show that the Corps acted arbitrarily and capriciously by relying on these Opinions when consultation with the F.W.S. is exactly what is required by the relevant statutory scheme. D. Disallowing Discovery. At oral argument on the cross-motions for summary judgment, the Plaintiffs presented a government document demonstrating contact between Senator Bob Graham and the United States Department of Justice. The document is a memorandum providing an account of a meeting that was held between the Corps and Sarasota County during the time that the landfill permits were suspended while the F.W.S. and the Corps completed the new § 7 consultation that was initiated as a result of the Plaintiffs’ lawsuit. The memorandum states that Senator Graham “had contacted the Attorney General” with regard to the litigation, and that “Sen. Graham was working to see if [the Department of] Justice would withdraw [a] recommendation” that a draft environmental assessment be made available for public comment. See A.R. Tab 137. At oral argument, the Plaintiffs’ counsel brought this document to the attention of the district court and requested that, should the court deny the Plaintiffs’ motion for summary judgment, the Plaintiffs be permitted to take discovery on the extent to which Senator Graham’s involvement may have influenced the agencies’ decisions in this case, particularly the Corps’ decision not to prepare an Environmental Impact Statement. The district court denied this discovery request. The Plaintiffs claim that this denial was improper. We conclude that the district court’s order denying discovery must stand because it was not an abuse of discretion. None of the cases upon which the Plaintiffs rely provides a basis for permitting discovery on the issue involving the memorandum from Senator Graham. For example, in ATX, Inc. v. United States Department of Transportation, 41 F.3d 1522, 1527 (D.C.Cir.1994), members of Congress strongly voiced opposition to ATX’s airline application to the Department of Transportation (“D.O.T.”). Several members of Congress wrote letters directly to D.O.T. Secretary Federico Pena urging him to deny the ATX application, and the record contained letters from over 125 members of Congress to other transportation department officials. Id. In holding that the congressional pressure was insufficient to invalidate D.O.T.’s adjudication, the D.C. Circuit noted that “ ‘the proper focus is not on the content of congressional communications in the abstract, but rather upon the relation between the communications and the adjudicator’s decision-making process.’ ” Id. (citation omitted). There, as here, “congressional input neither created an appearance of impropriety nor actually affected the outcome.” Id. As discussed in Section IV.B of this opinion, it is clear that the Corps’ decision not to complete an Environmental Impact Statement was based on the merits of this case. Furthermore, the legal issue raised in the controversial memorandum — whether to circulate a draft Environmental Assessment for public comment — is irrelevant. Even if such a recommendation had been made and withdrawn, there is no legal requirement that an Environmental Assessment be circulated publicly and, in fact, they rarely are. Thus, the district court did not abuse its discretion when it disallowed discovery on this issue. V. CONCLUSION Based upon the foregoing, we hold that the Corps and the F.W.S. did not act arbitrarily and capriciously in any of their decisions in this case, and that the district court did not abuse its discretion in disallowing discovery on the issue involving the memorandum from Senator Graham. Accordingly, we affirm the district court’s grant of summary judgment in favor of the Defendants. AFFIRMED. . "F.W.S. Opinion” refers only to the 1995 Biological Opinion. As discussed infra, the F.W.S. completed three separate Biological Opinions for the Sarasota landfill project. However, the first one, completed in 1990, did not concern either the Florida Panther or the Eastern Indigo Snake. The second one, completed in 1994, addressed concerns regarding the Florida Panther and the Eastern Indigo Snake, but was superseded by the third opinion, the "F.W.S. Opinion,” completed in 1995. . It is unknown how many Florida Panthers once roamed the Southeastern United States. Theoretical estimates place approximately 1,360 Panthers in what is now Florida. Ken Alvarez, Twilight of the Panther 35 (1993). Anecdotal evidence from early American history suggests the presence, at one time, of large panther populations in the American South. For example, a narrative of Hernando deSoto's 16th Century expedition to Florida told of “many lions and bears ...” Id. at 36 (citations omitted). While traveling through Georgia during Colonial times, naturalist William Bartram observed that "bears, tygers [panthers], wolves and wild cats ... are numerous enough.” Id. (citation omitted). .The landfill site is located fifty miles north of the Caloosahatchee River. Florida Panthers have not been documented north of this river, which proceeds inland from Fort Myers and then generally northeast. The Plaintiffs’ allegation that anecdotal evidence proves that there are now Florida Panthers north of the Caloosahatchee River is not persuasive. While anecdotal sightings of Florida Panthers have been reported, such information is generally unsupported by verifiable documentation. Florida Panthers by nature are "secretive and illusive and seldom observed,” and "confusion and misidentification with the more widely distributed bobcat” is common. F.W.S. Opinion at 18. The very expert upon whom the Plaintiffs rely has indicated to the F.W.S. that “the fact that there are no records of road kills is compelling evidence that Panthers are not present [in or around the landfill site].” F.W.S. Opinion at 17 (referencing Maehr, emphasis supplied). . For purposes of the CWA, the Corps defines wetlands as: [T|hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a revalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 40 C.F.R. § 232.2(r); see Sheldon M. Novick et al. eds., Environmental Law Institute, 2 Law of Environmental Protection § 12.06[1][b] (1994). . In consenting to the project in 1990, the F.W.S. indicated that the landfill would not affect the Wood Stork (Mycteria americana). The F.W.S. did not, at that time, consider the effects that the landfill would have on the Florida Panther and the Eastern Indigo Snake. . Section 7 of the ESA requires that federal agencies consult with the F.W.S. to ensure that actions the agency authorizes are not likely to jeopardize the continued existence of species listed as "threatened" or “endangered," or adversely modify or destroy habitat designated as critical to the survival of a listed species. 16 U.S.C. § 1536. If the proposed action may affect a listed species, formal consultation between the agency and the F.W.S. is required. Id.; 50 C.F.R. § 402.14. When formal consultation is initiated, the agency is required to provide the F.W.S. information about the proposed project and the "best scientific and commercial data available." 50 C.F.R. § 402.14(d). The F.W.S. then prepares a biological opinion including: (1) a conclusion regarding whether the proposed action is likely to jeopardize the continued existence of a listed species or adversely modify critical habitat; (2) when necessary, an “incidental take” statement regarding animals likely to be killed by the project; and (3) reasonable and prudent alternatives to the action if the proposed action is likely to jeopardize a species. Id. The phrases “jeopardize the continued existence of,” "destruction or adverse modification,” and "incidental take” are defined by regulation at 50 C.F.R. § 402.02. . The E.P.A. was later omitted in the Plaintiffs’ Second Amended Complaint. . This "incidental take” statement permits Sarasota County to kill up to fifty-two snakes within "the footprint of the landfill” and to “take" an additional two snakes per year in connection with the construction and use of the access road during the life of the project. Assuming the life of the project is thirty-nine years, as projected, the F.W.S. will thus allow the Counfy to kill up to 130 Eastern Indigo Snakes as "incidental" to the landfill project. However, the F.W.S. specifically determined that this level of take would not jeopardize the existence of the Eastern Indigo Snake due to the remaining level of population elsewhere in the snake’s range. See F.W.S. Opinion at 26, 28-29. . This Opinion, as well as the previous one, are referred to as “no jeopardy” opinions. A "no jeopardy” biological opinion is a scientific determination by the F.W.S. that the proposed action is "not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(h)(3). A “jeopardy” opinion can be issued only when the proposed federal action is expected "to reduce appreciably the likelihood of both the survival and recovery” of a listed species. Id. at § 402.02. . "Waters of the United States" is defined by regulation to include wetlands. 33 C.F.R. § 328.3(a), (b). . The Corps also considered a no-action alternative, which was rejected because the County's existing landfill capacity is expected to be reached by 1999. . At the time the prospect sites were being evaluated, the Bald Eagle was listed as an endangered species. However, on July 12, 1995, the Bald Eagle was formally removed from the endangered species list and is classified as threatened. . "Priority 1 Panther habitat” means that the F.W.S. has identified the area as containing "those lands that should be preserved first and are characterized as areas most frequently used by panthers and/or land of high quality suitable native habitat.” F.W.S. Opinion at 13. . The Plaintiffs argue that the Okeechobee landfill, which is outside Sarasota County, is a practical alternative. The Corps disagrees. It appears that the Okeechobee landfill lacks sufficient capacity to handle the amount of waste anticipated to be generated in Sarasota County and, indeed, even today has not been expanded by its developers and cannot yet accommodate inter-county waste. . Section 4 of the ESA addresses "recovery plans," which formulate actions designed to enhance species recovery to the point where ESA protection is no longer needed. 16 U.S.C. § 1533(f). The Secretary is required to “develop and implement” such plans "unless he finds that such a plan will not promote conservation of the species.” Id. . The HPP was developed and approved in November, 1993, to implement the Florida Panther Recovery Plan. . We deny the plaintiff’s request for reassignment as moot.

California Trout v. Schaefer

DAVID R. THOMPSON, Circuit Judge: California Trout (CalTrout), a nonprofit environmental organization, challenges the United States Army Corps of Engineers’ (the Corps) decision to approve an application by the Stockton East Water District (SEWD) for a permit under section 404 of the Clean Water Act, 33 U.S.C. § 1344. SEWD sought a permit to discharge fill material into wetlands under the jurisdiction of the United States in conjunction with SEWD’s construction of a larger project to divert water from the Stanislaus River in California’s Central Valley. CalTrout contends the Corps violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331, et seq., and the Clean Water Act, 33 U.S.C. § Í344, by, inter alia, excluding from the scope of its permit review the entire project’s environmental effects on fisheries downstream in the Stanislaus River. The district court granted the Corps’s and SEWD’s motions for summary judgment, and this appeal by CalTrout followed. We affirm. FACTS SEWD has constructed a 41-mile long project to divert water from the Stanislaus River in the northern portion of California’s Central Valley to SEWD’s water treatment plant east of Stockton, California. The New Melones Reservoir, which is the source of the water to be diverted, is controlled by the Bureau of Reclamation, United States Department of Interior (the Bureau). As part of its oversight, and pursuant to congressional direction, the Bureau has conducted studies and prepared environmental impact statements (EIS) to ensure that the allocation of New Melones water is “at all times ... subordinate” to the quantities of water required “to satisfy all existing and future needs within [the Stanislaus River] basin,” and that “appropriate measures” are adopted to “insure the preservation and propagation of fish and wildlife.” Flood Control Act of 1962, Pub.L. No. 87-874, 76 Stat. 1180, 1191. These studies include an EIS issued in 1972, and a supplemental EIS issued in 1980. In addition, several studies are currently examining the impact on Stanislaus River fisheries of water allocations from the New Melones Reservoir. The Bureau, along with the U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG), is conducting a multi-year study of the instream flow requirements and other needs of the fisheries. In addition, the Bureau and DFG are jointly developing a long-term water use plan for the Stanislaus and Calaveras Rivers that will, in part, “[p]rovide increased instream flows for fishery and wildlife needs” in those rivers. The Bureau and DFG are preparing an EIS in conjunction with that study, as required by the Central Valley Project Improvement Act (GVPIA). See Pub.L. No. 102-575, § 3406(e)(2), 106 Stat. 4706, 4722 (1992) (requiring that the Bureau complete the EIS by September 30,1996 and in so doing “evaluate and determine existing and anticipated future basin needs in the Stanislaus River Basin,” including “fish and wildlife resources”). In 1983, SEWD entered into an interim water supply contract with the Bureau. The Bureau agreed to provide SEWD with a maximum of 75,000 acre-feet of water annually, subject to availability after the Bureau satisfied the water needs of in-basin users and higher priority out-of-basin users. In early 1988, the California State Water Resources Control Board (State Water Board) approved the Bureau’s application to divert water at New Melones and downstream on the Stanislaus River for diversion by SEWD. As a condition of approving the Bureau’s water contracts, the State Water Board required the Bureau to maintain in-stream flow needs to protect fisheries and instructed the Bureau to conduct instream flow and fisheries studies. The Board retained jurisdiction over the Bureau’s permit in order to revise instream flow requirements for water quality objectives and fishery purposes. In 1989, SEWD started building its 41-mile conveyance system to divert water from the Stanislaus River. The conveyance system consists of a diversion structure at Goodwin Dam, a 3.3-mile tunnel, a 10-mile Upper Farmington Canal, improvements in Shirley, Hoods, and Rock creeks to utilize their 16 miles of natural watercourses, a rediversion structure at Rock Creek, the 8.6-mile Lower Farmington Canal, and a 3.2-mile buried pipeline. Prior to commencing construction, SEWD issued an Environmental Impact Report for the “Farmington Canal Project,” as required by California state law, which encompassed the Farmington Canal, as well as other features of the project. In 1990, SEWD applied to the Corps for a permit under section 404 of the Clean Water Act to discharge fill material into water of the United States (wetlands), in connection with building one of the conveyance system components — the rediversion structure within Rock Creek, just below the Farmington Dam. No other portion of the project required federal approval. The Corps determined that 4.18 acres of wetlands within the Corps’s jurisdiction would be affected by the construction of the Rock Creek facility. Pursuant to NEPA, the Corps prepared an Environmental Assessment (EA), granting the permit to SEWD and responding to concerns from third parties. The Corps’s sister agencies, including FWS, the Environmental Protection Agency (EPA), and the National Marine Fisheries Service (NMFS), were initially concerned about the impact the water diversion might have on the fisheries in the Stanislaus River. The Corps explained that SEWD’s permit application was not the appropriate forum for resolving the fishery issues, based on (1) the Bureau’s control over the allocation of water; (2) the separate contracts between the Bureau and SEWD governing water allocation; (3) and the environmental impact statements and other studies the Bureau had performed in the past, and currently was performing, concerning the fisheries. The Corps concluded that “[sjuffi-cient guarantees are in place to ensure that if studies indicate that additional flows are needed in the Stanislaus River, the Bureau will operate the New Melones reservoir accordingly.” On October 26, 1992, CalTrout filed this lawsuit claiming that the Corps violated NEPA and the Clean Water Act when it issued the section 404 permit to SEWD. The Corps and SEWD’ moved for summary judgment, which the district court granted on August 27, 1993. This appeal followed. In the meantime, construction of the entire project, including the Rock Creek facility, has been completed. However, to date, the Bureau has denied SEWD’s requests for water, in order to preserve supplies for higher-priority users, and no water has been diverted from the Stanislaus River to East Stockton. The 41-mile conveyance system, although completely built, remains dry. DISCUSSION 1. Did the Corps arbitrarily and capriciously limit the scope of its NEPA analysis? “The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decisions on the environment.” Friends of the Earth v. Hintz, 800 F.2d 822, 836 (9th Cir.1986) (citing Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985)). To fulfill that purpose, NEPA requires all federal agencies to prepare an EIS for “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To determine whether an EIS is necessary, the agency first prepares an EA, which briefly describes the need for, alternatives to, and environmental impacts of the proposed federal action. 40 C.F.R. § 1508.9 (1994). If the agency determines in the EA that the federal action will not significantly affect the environment, it makes a “finding of no significant impact” (FONSI), and its NEPA review ends. Id. § 1508.13. However, if the agency determines that the proposed action will significantly affect the environment, it then prepares a more thorough EIS concerning the project. Id. pt. 1502. When the federal action is merely a component of a larger nonfederal project, the process becomes more complicated, because NEPA does not specify the scope of an agency’s EA analysis.. Sylvester v. U.S. Army Corps of Engineers (Sylvester I), 884 F.2d 394, 398 (9th Cir.1989). In the present case, the Corps determined that its jurisdiction did not extend beyond the Rock Creek rediversion structure. Accordingly, , the Corps looked only, at the environmental impacts resulting from SEWD’s application to fill 4.18 acres of wetlands in constructing the Rock Creek facility. The, Corps determined the environmental impacts were not “significant,” and that an EIS was not necessary. , CalTrout contends the Corps should not have limited its review to the environmental impacts of filling the 4.18 acres of wetland, the only portion of the 41-mile diversion project that required federal approval. CalTrout contends the Corps should have analyzed the environmental effects caused by the project as a whole; specifically, the effects on the fisheries in the lower Stanislaus River. CalTrout reasons that because the nonfederal portions of the project are dependent on the Rock Creek facility, the entire project constitutes a single federal action, and should be analyzed as such. We review the Corps’s decision- not to prepare an EIS under an “arbitrary and capricious” standard of review. Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.1992). Using this standard, we consider only whether the Corps’s decision is based on a “reasoned evaluation of the relevant factors.” Id. at 1332. We will overturn the Corps’s decision only if the Corps committed a “clear error of judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 385, 109 S.Ct. 1851, 1865, 104 L.Ed.2d 377 (1989). As both CalTrout and the Corps point out, the eases on which they rely are not on all fours with our facts, primarily because these cases lack the presence of a second, more involved federal agency. Compare, e.g., Sylvester v. U.S. Army Corps of Engineers (Sylvester I), 884 F.2d 394, 398 (9th Cir.1989) (relied on by the Corps); Thomas v. Peterson, 753 F.2d 754 (9th Cir.1984) (relied on by CalTrout). However, North Carolina v. City of Virginia Beach, 951 F.2d 596 (4th Cir.1991), is a strikingly similar case, and its reasoning, which we find persuasive, disposes of the central issue in this case. In North Carolina, the City of Virginia Beach sought to build an 85-mile pipeline to divert water from Lake Gaston. Id. at 598. Virginia Beach had already obtained a permit from the Corps. The Corps issued an EA and a FONSI; an EIS was never prepared. Id. at 599. The City still needed approval from the Federal Energy Regulatory Commission (FERC), which is the licensor of the hydro-power facility at Lake Gaston. Id. The plaintiffs sued to enjoin the project, contending that FERC could not issue the necessary approvals until it reviewed the entire pipeline project under NEPA, because the approvals were a condition precedent to the pipeline. Id. at 604. Framing the issue in the case as “whether the NEPA assessment conducted by the Corps must be repeated by FERC,” the Fourth Circuit examined whether FERC had “veto” power over other parts of the pipeline. Id. at 604. The court concluded FERC did not, noting that “[ijndeed, if Virginia Beach were to build a pipeline, or any structure for that matter, up to the edge of Lake Gaston, it is doubtful that FERC would have any say in the matter.” Id. The court also noted the lack of federal funding and that apart from FERC’s permitting decision, the only federal involvement was the Corps’s, “which ha[d] already provided an environmental assessment to the fullest extent required by NEPA.” Id. at 604-05. The North Carolina court emphasized what the case was not about: This is not a ease in which we are asked to permit construction on property under FERC jurisdiction without a NEPA review; nor has Virginia Beach sought to initiate construction to bypass a NEPA review. On the contrary, ... FERC will and should conduct a NEPA review in connection with [its portion of the project]. Moreover, [for the rest of the property], over which FERC has no jurisdiction, the NEPA requirements were previously satisfied by the Corps. Id. The court concluded that FERC’s limited analysis was “consistent with the authority exercised by the Corps.” Id. at 605. We adopt the view of the Fourth Circuit in North Carolina, and hold that in this case the Corps properly limited its scope of review to SEWD’s activities in filling in the 4.18 acres of wetlands. The Corps’s justification for limiting its review in this case is substantially the same as FERC’s justification for limiting its review in North Carolina. See id. at 604. In North Carolina, it was the Corps, not FERC, that had the right and the obligation to protect the environment. Here, it is the Bureau, not the Corps, which has the contractual right, and statutory obligation, to curtail SEWD’s contractual allocations as necessary to protect the needs of the fisheries. The Corps has no jurisdiction over the amount of water, if any, the Bureau may decide to divert. Moreover, the entire project in the present case is privately funded just as it was in North Carolina. See id. Most important, the Bureau has already fulfilled the NEPA mandate by preparing an EIS “to the fullest extent required by NEPA.” See id. at 604-05; see also Environmental Defense Fund, Inc. v. Armstrong, 356 F.Supp. 131, aff'd, 487 F.2d 814 (9th Cir.1973) (upholding Bureau’s EIS). The SEWD project, and its effects on the downstream fisheries, have been the subject of at least four in-depth governmental studies, all of which were followed by extensive public review and comment. Moreover, those studies, at congressional behest, are currently being updated by the Bureau. Requiring the Corps to duplicate these efforts would be nonsensical. See Enos v. Marsh, 769 F.2d at 1371 n. 10 (finding fact that state prepared an EIS for its shoreside facilities persuasive in affirming Corps’s review of only the federal harbor aspect of the project); cf. Sylvester I, 884 F.2d at 401 (“[Ojrdinary notions of efficiency suggest a federal environmental review should not duplicate competently performed state environmental analyses.”). Our holding does not conflict with Ninth Circuit precedent. Sylvester I, supra, and Thomas v. Peterson, supra, are inapposite, because neither involved the concurrent yet independent jurisdiction of two federal agencies. Unlike Sylvester, here CalTrout is not concerned that the nonfederal aspects of the project will escape NEPA scrutiny. Instead, it seeks “a second bite” at NEPA by requiring the Corps to reprise the Bureau’s EIS. Also, unlike Thomas, here the Corps does not control the entire project, nor does it seek to segment the project to avoid an EIS — an EIS has already been performed, as have a number of other studies. Focusing on the limited review the Corps did perform, CalTrout argues the Corps failed to use the same “scope of analysis for analyzing both the impacts and alternatives [as it] used for analyzing the benefits of’ the SEWD project. Corps NEPA Regulations, ¶ 7(b)(3). We rejected a similar argument in Sylvester v. U.S. Army Corps of Engineers (Sylvester II), 882 F.2d 407 (9th Cir.1989). In Sylvester I, we upheld the Corps’s decision to review the environmental impact of a golf course, and to exclude the impact of an adjoining resort complex. See 884 F.2d at 400-01. Then, in Sylvester II, the same plaintiff contended the Corps violated paragraph 7(b)(3) when it “limited its consideration of the impact of the proposed development to only those of the golf course while simultaneously including the benefits from the entire resort complex.” 882 F.2d at 410. We upheld the Corps, because “[t]he EA makes plain that the Corps followed its regulations and weighed only the benefits of the golf course to the resort.” Id. We found that “[t]he Corps quite properly did measure the benefit of the golf course in terms of its contribution to making the resort an economically viable year-round facility with all of its attendant advantages.” Id. As in Sylvester II, here the Corps did not violate paragraph 7(b)(3). The Corps did not “weigh the benefits of the entire project against the environmental impacts of the” Rock Creek facility. See id. Rather it simply weighed the benefits of the Rock Creek facility to the water diversion. See id. CalTrout’s last argument, that the Corps failed to analyze the impact of the diversion on growth in the Stockton area, also fails. CalTrout disregards the findings supporting the Corps’s conclusion that no significant growth would result from the diversion and fails to explain how the Corps “committed a clear error of judgment.” Accordingly, we defer to the Corps’s “reasonably thorough” findings that no growth would result from the project. Laguna Greenbelt, Inc. v. U.S. Dept. of Transportation, 42 F.3d 517, 526 (9th Cir.1994). 2. Did the Corps violate the Clean Water Act? CalTrout contends the Corps failed to consider the views of the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and state fish and game officials. See 33 C.F.R. § 320.4(c) (1994). We disagree. In contrast to Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1031 (2d Cir.1983), cited by CalTrout, here the Corps responded to the agencies’ concerns. Compare Sierra Club, 701 F.2d at 1031 (criticizing the Corps for failing “to react in any way to sister agencies’ pointed comments that the draft EIS did not provide adequate information”). Moreover, CalTrout exaggerates the level of interagency disagreement. The U.S. Fish and Wildlife Service eventually agreed that the Corps should limit its review to the Rock Creek impacts. In addition, neither the Environmental Protection Agency nor the National Marine Fisheries Service administratively challenged the Corps’s scope of review. As required, the Corps considered these agencies’ initial concerns, addressed them, and “explained why it found them unpersuasive.” Roanoke River Basin Assoc. v. Hudson, 940 F.2d 58, 64 (4th Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992). CalTrout has failed to show the Corps acted arbitrarily or capriciously in doing so. Compare Sierra Club, 701 F.2d at 1023-24 (agencies requested reconsideration of the permitting decision multiple times, and appealed the decision administratively). CalTrout also criticizes the Corps’s finding that SEWD’s fill activities would not cause or contribute to significant degradation of the waters of the United States. 40 C.F.R. § 230.10(c) (1994). We understand CalTr-out’s argument but reject it. CalTrout may disagree with the Corps’s finding, but there is nothing in the record to suggest that finding resulted from any clear error of judgment. The Corps’s action in issuing the permit to SEWD under the Clean Water Act was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Friends of the Earth, 800 F.2d at 831. AFFIRMED. . CalTrout never sought to preliminarily enjoin construction of the project. . As a condition to the permit, the Corps required SEWD to mitigate any adverse environmental effects caused by filling in the wetlands. These requirements included creating nine acres of replacement wetlands — more than twice the amount that would be lost from the Rock Creek project. . Other NEPA issues CalTrout raises, including its contentions that the Corps (1) improperly relied on obsolete fisheries data in preparing the EA; (2) disregarded the cumulative impact of the water diversion; and (3) improperly relied on the Bureau's EIS, are mooted by our resolution of the broader scope of review issue.

City of Waltham v. United States Postal Service

BREYER, Chief Judge. In November 1990, the United States Postal Service decided to buy a 36 acre parcel of land, located in Waltham, Massachusetts, just south of Lexington, near the intersection of two busy highways, Route 128 and Route 2. The Service intends to convert the three buddings now on the property into a 400,000 square foot mail distribution facility. Both Waltham and Lexington oppose the project. In May 1991, Waltham filed this lawsuit (in which Lexington later intervened). The towns pointed out that the Service must prepare an Environmental Impact Statement (an “EIS”) — a detailed statement on the environmental impact of the proposed project— unless a preliminary assessment allows the Service to find that the project will have “no significant impact” on the environment. National Environmental Policy Act of 1969 (“NEPA”) § 102, 42 U.S.C. § 4332(C); 40 C.F.R. §§ 1501.4, 1508.13; 39 C.F.R. § 775.-6(a)(2). The towns claimed that the Service’s finding of “no significant impact” was faulty. And, they asked the district court to enjoin the Service from proceeding further until it prepared an EIS (and complied with several other statutes and regulations). On cross motions for summary judgment, the district court denied the injunction. The court reviewed the Service’s several “assessments” of the project’s potential environmental impacts, and it concluded that those assessments, taken together, provided adequate factual support for the Service’s “no significant impact” conclusion. It rejected the towns’ other claims. The towns now appeal the district court’s decision. Waltham, in particular, in its brief, makes a vast number of claims and arguments, many of them highly factual and record-based in nature. We have dealt with the claims and arguments as follows. First, we have evaluated what seem to us the most important factual claims — those most likely to suggest the existence of a significant environmental effect — in light of a rather thorough, and independent, reading of the 3800 page record (which includes about 1800 pages of “environmental assessments”). Second, we have considered in depth what seem to us the most important non-fact-related legal claims, particularly a question that the towns raise about the composition of the record. Third, in evaluating the towns’ many other claims (less significant claims that, once we had read the record, seemed unlikely to have legal merit), we did not go beyond the record citations and the arguments contained on the pages in the briefs where the towns raise those claims. We mention our approach to the case because we wish counsel to understand how a fairly lengthy process of review led to a fairly simple ultimate conclusion, namely, that the district court was correct, and basically for reasons set forth in its ninety-five page opinion. We see no need to rewrite that same opinion. Rather, we shall first explain why we reject the towns’ main procedural argument (dealing with the composition of the record). We shall then discuss the main fact-related claims. But, subsequently, we shall indicate only briefly why we reject the other arguments that the towns have made. Counsel should take our statement of reasons throughout as supplemented by those of the district court and by our conclusion that, in respect to each of the fact-related claims, the towns have not pointed to sufficient eviden-tiary support to create a triable issue. I The Scope of the Record The Service’s consultants, Rizzo Associates, completed three studies of the project’s likely environmental effects. The Service published the first “environmental assessment” in May 1990. After a public hearing, it commissioned a second “assessment,” which it published in September. Two months later, at the beginning of November, the Service issued its “finding of no significant impact” (which it conditioned on the assumption that “all proposed mitigation measures are implemented”). Shortly thereafter, the Service asked Rizzo to perform a third study of the site. The third assessment analyzed the potential environmental impact of proposed changes, including new mitigation measures, that the Service intended to make. It also investigated more thoroughly some of the environmental concerns that the towns had expressed. The assessment concludes that its findings “support[] the [finding of no significant impact] issued by the Postal Service” in November. The Service published this third assessment in June 1991 (a month after Waltham brought this lawsuit) as an “amendment” to its earlier assessments. The towns’ most important argument on appeal concerns this third study. The towns believe that, without the third study, the district court would have reached a different conclusion about the project’s likely environmental impact. And, they argue that the district court should not have taken the third study into account because Rizzo developed it after the Service made its “no significant impact” finding. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971) (warning against accepting an agency’s “post hoc rationalizations”). Cast in its best light, the towns’ argument amounts to both a logical claim, namely, that information developed after the November 1990 “no significant impact” finding cannot help show that the Service’s finding was lawful earlier when made, and a practical claim, namely, that the court, at least, should remand the case to the Service so that it, not the court, can reassess its November 1990 decision in light of the new information. We agree with the towns about the importance of the third study. Without that study, one might find a “substantial possibility” that the project “could significantly affect the quality of the human environment”; and, such a finding would show the need to perform an environmental impact statement. Quinonez-Lopez v. Coco Lagoon Dev. Corp., 733 F.2d 1, 2 (1st Cir.1984). Once one considers the third assessment, however, the “substantial possibility,” and the consequent need for an EIS, disappear. See supra p. 239; infra part II. We nonetheless disagree with the towns about court consideration of the third assessment. We are unaware of any hard and fast legal rule forbidding a court’s consideration of a subsequently made assessment and project modifications. The district court independently reviewed the third assessment (as have we). We conclude that, in doing so, the court acted lawfully, in light of the following considerations. First, the towns seek more than a simple judicial declaration that the November 1990 decision was inadequately supported when made. (In fact, the district court basically conceded that it was not.) Rather, they seek an injunction requiring, among other things, preparation of an Environmental Impact Statement. The third assessment is highly relevant to the ultimate legal question in the case, namely, the equitable question of whether or not the district court should issue that injunction. It offers strong evidence that the project will have no significant, adverse environmental effects. See supra pp. 239; infra Part II pp. 24(M2. It thereby indicates that the relief sought is unnecessary, that an injunction would not serve the public interest, and that one could not justify injunction-related project delays through reference to eventual statutorily-related environmental benefits. Second, the record indicates that remand of the case to the Service for further consideration of the third assessment would serve no useful purpose. The assessment reveals no new environmental harms, nor does it provide evidence that any already considered harm is more likely than previously thought. Compare Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983) (requiring development of a supplementary EIS where new evidence significantly changes previous factual assumptions). Furthermore, the towns have not cast any significant doubt on the reliability of the third assessment’s facts or its analysis. Finally, there is no reason to believe that the Service’s further consideration of this third, Service-commissioned, assessment would change the mind of a Service that found “no significant impact” upon the bases of two, less convincing, analyses. Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 1430 n. 6, 22 L.Ed.2d 709 (1969) (“[W]e [need not] convert judicial review of agency action into a ping-pong game.”). Third, the district court considered the third assessment independently (as have we), without giving the benefit of any particular doubt to the agency in light of any presumed agency expertise, or special legal authority, to resolve such matters. In this way, it guarded against what courts have sometimes called “post hoc rationalization,” namely, an effort by agency staff, after an agency has made a decision, to find supporting reasons and data that the agency itself, before the event, might have considered irrelevant or unpersuasive. See Overton Park, 401 U.S. at 419, 91 S.Ct. at 825. The risk of “post hoe rationalization” is particularly small in this case, for the document contains the same kind of analysis that the Service earlier found persuasive. It differs from the first two assessments only in that it is more thorough and it considers in detail mitigation measures of the sort that the Service had earlier “assume[d]” would be “implemented.” The upshot is that the third assessment is unlike, say, late developed evidence of significant, previously uneonsidered environmental harm—evidence that may require further agency consideration, particularly in a legal context that offers the environment only procedural protection. See Watt, 716 F.2d at 952 (requiring preparation of a supplementary EIS). Rather, the third assessment arises in a legal context in which further environmental investigation and additional mitigation measures may help an agency produce a project that better meets a substantively protective environmental standard (i.e., “no significant impact”). The third assessment provides evidence of increased mitigation and diminished environmental harm. The third assessment is directly relevant to the basic question of court-mandated relief. By itself (and in context) the third assessment indicates that neither an injunction nor remand to the agency is warranted. And (as independently reviewed), the assessment comes unaccompanied with “post hoc rationalization” risks. In this context, we can find no convincing legal reason why the district court should not (independently) have considered the third assessment in reaching its decision not to grant the towns the relief they requested. II The Merits The basic legal question, on the merits, is whether or not the Postal Service could lawfully conclude that its project will not “significantly affect[] the quality of the human environment.” NEPA § 102, 42 U.S.C. § 4332(2)(C)(i). The district court, applying standards at least as stringent as those our cases have proposed, see, e.g., Sierra Club v. Marsh, 769 F.2d 868, 870-71 (1st Cir.1985), found the Service’s determination lawful. We too have reviewed the record. We have taken what we described in Marsh as the “practical approach” to review, avoiding verbal formulas, but giving the record the type of scrutiny for which the circumstances call. In this ease, for the reasons discussed in Part I, that scrutiny, in respect to the third assessment, has been strict. We have reached the same conclusion as the district court, namely, that the record does not show a “substantial possibility” that the project “could significantly affect the quality of the human environment.” Quinonez-Lopez, 733 F.2d at 2. Our conclusions about the record, and our reasons for affirming the district court’s decision, are basically those the district court itself described in its ninety-five page opinion, supplemented as follows: 1. Lexington, located just north of the project, says that the project might injure its environment by generating additional truck traffic, at least if postal trucks tend to enter or leave the project from the north. The basic problem with this argument lies in a record that indicates significant numbers of postal trucks will not tend to enter or leave the project from the north. The project is just east of Route 128. Trucks may easily drive from that expressway to the project by way of a road to the south, and they may then turn left and left again, entering the project by means of its southern driveway. (See Appendix for diagrams.) Physical barriers in the road will prevent trucks from turning left (north) as they leave the project along this southern driveway or from turning right into this driveway, should they try to approach the project from the north. Lexington points out that there is also a northern driveway, and it asks, what is to prevent a truck from approaching the project from the north and entering (or leaving) the project along this northern driveway? Although the first two environmental assessments contained diagrams that showed that the northern entry would do the trucks no good (for the northern driveway would not give them access to the truck parking area), the third environmental assessment contains a slightly different diagram that suggests that a truck might enter the project through the northern driveway and drive to the truck parking area. In our view, however, the third assessment’s northern-driveway-truek-parking-area connection is not sufficient to show a “substantial possibility” of an adverse environmental impact in Lexington. The government, in its brief, says that the Service “has designated a physical barrier that will prevent trucks from entering or leaving” the project “from the North.” The Service says, in its second environmental assessment, that it will enforce a traffic pattern on Postal Service trucks and contract trucks so that they will not enter from, or leave, the facility via the North. The Postal Service’s regulations create a binding obligation to implement “ [practicable mitigation measures identified in an environmental assessment.” 39 C.F.R. § 775.6(a)(7). And, the district court, in its opinion “expressly rule[d] that the judgment entered ... is dependent upon the ... implementation of the ... traffic design plan_” We interpret the district court’s words “traffic design plan” to include a plan that effectively assures that trucks will not enter or leave the facility by means of the northern driveway. That being so, we can find no substantial possibility of an adverse truck traffic impact in Lexington. 2. Lexington also argues that the Service’s planned improvement of a roadway intersection near Lexington will mean more traffic traveling through the town, as drivers will choose the improved route over other, more congested, routes. Lexington, however, has produced no factual data that suggests this possibility is other than speculative. Nor can Lexington plausibly argue that the Service should have investigated further and found the relevant data, for Lexington initially implied that it liked the idea of an intersection improvement, not that it opposed the idea. Lexington wrote the Service that it wanted to “understand the anticipated benefits of the intersection upgrade,” and it asked the Service for an analysis of “what the impact on Lexington’s streets would be if [the] intersection upgrade does not occur.” (App. Yol. 2, p. 646, emphasis added). We have found nothing in the record to suggest that anyone thought the intersection might cause added-car-traffie harm of the sort that Lexington now mentions. And, Lexington does not have the right to make new arguments about this problem at this stage of the proceeding. Valley Citizens for a Safe Environment v. Aldridge, 969 F.2d 1315, 1317 (1st Cir.1992); Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). 3. Waltham argues that the project will significantly and adversely affect a nearby wetland, basically by reducing the amount of rainwater that would run off the site into the wetland. Its expert points to certain Postal Service figures that, the expert says, indicate that the project would reduce, by about 25% to 30%, the amount of water that, during a rainstorm, now runs off the buildings and onto the wetlands. The third environmental assessment indicates, however, that rainwater runoff will not decline significantly. The third assessment, in responding primarily to Waltham’s earlier claim that the project would discharge too much, not too little, rainwater onto the wetlands (threatening them with additional pollutants), sets forth a detailed stormwater management plan, and, in doing so, discusses the amount of rainwater that will leave the project. It describes water detention basins that keep, but then discharge, water by means of what it calls a “flow-dispersing swale,” which discharge will “replicat[e] the sheet flow occurring in a predeveloped condition.” The plan, it says, includes methods for encouraging “[g]roundwater recharge.” The description indicates that the project will not affect drainage from the existing roof area. It adds that water running off the new roof area.will be directed partly to a similar “flow-dispersing swale,” and partly to a “subsurface recharge system” that will “replenish the groundwater, avoiding indirect hydrological impacts on the nearby wetlands and stream.” Given this discussion of the storm water management plan, taken together with the fact that the district court explicitly conditioned its judgment “upon ... implementation of the amended stormwater management ... plan,” Waltham, its expert notwithstanding, has failed to show any substantial likelihood that an environmentally significant lessening of rainwater runoff will occur. 4. Waltham says that the Service will build the project in a wetland area, without complying with “wetland construction” legal requirements. The district court, however, found to the contrary. The record shows that the Service collected relevant information about the wetlands. See 39 C.F.R. § 776.5(a). Furthermore, the third assessment says that the project will not involve wetland construction. The site plans, as far as we understand them, confirm the assessment’s statement. And, Waltham points to no specific evidence that might refute the statement. Regardless, the district court explicitly made its judgment “dependent upon ... the avoidance of construction in floodplain or wetlands or the discharge of fill into wetlands.” 5. Waltham says that the Service’s proposed addition to the existing buildings, as described in the third assessment, is twice the size of that addition described in the earlier assessments, which fact (Waltham adds) “raises a number of issues which must be addressed” by the Service. One problem with this argument lies in our inability to understand (despite our examination of the various relevant diagrams) how Waltham reached its “enlarged building” conclusions. Regardless, Waltham does not specifically or convincingly explain why any diagrammatic inconsistency between the earlier and later assessments would make a relevant legal difference. A change in size does not automatically mean greater, or different, environmental effects than the record describes. The third assessment’s environmental analysis, after all, concerns the (allegedly bigger) building project described in the third assessment. Thus, the analysis of groundwater runoff, for example, that we find adequate (for reasons set out at pp. 241-42, supra) also seems adequate in respect to whatever “enlarged” building that the third assessment describes. Waltham’s brief, in the portion devoted to its “enlarged building” claim, refers generally to toxic waste and to the general appearance of the building. But, it provides neither record citations nor specific arguments that could lead us to conclude that whatever changes it has deduced from the diagrams make a relevant difference in these, or other, relevant environmental respects. We therefore cannot accept its “enlarged building” argument. 6.Waltham mentions the project’s impact on noise. The district court, however, pointed out that the third assessment thoroughly analyzed the noise problem. The court concluded that, even without the various mitigation measures proposed (measures that postal regulations require the Service to implement, 39 C.F.R. § 775.6(a)(7)), the environment will suffer no significant impact on noise. The studies support that conclusion. And, Waltham points to no significantly conflicting evidence. Ill Procedural Claims Waltham objects to several of the district court’s procedural rulings. We shall briefly explain why we find these objections without legal merit. 1. The district court’s decision not to grant the injunction was embodied in its grant of the Service’s motion for summary judgment and its accompanying denial of Waltham’s converse summary judgment motion. Waltham says that the district court’s own summary judgment rule, Local Rule 56.1, required the court to grant the Wal-tham motion. It points to three parts of the rule: a. The rule says that a party moving for summary judgment must attach “a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried.” b. The rule adds that the opposing party must then include “a concise statement of material facts of record as to which it is contended that there exists a genuine issue to be tried.” c. The rule concludes that any fact “set forth” in the moving party’s statement, unless “controverted ” in the opposing party’s statement, “will be deemed for purposes of the motion to be admitted by opposing parties.” Local Rule, D.Mass. 56.1 (emphases added). Waltham points out that it attached a long statement of facts to its motion for summary judgment, but the Service did not attach a list of facts to its opposition. Hence, says Waltham, the court should have considered its list of facts “to be admitted,” and those facts, it believes, entitled it to summary judgment (and the injunction). The problem with this argument is that the Service did submit a “concise statement of material facts” that (despite Wal-tham’s own opposing statements, and for reasons set out here and in the district court’s opinion) adequately supported judgment in its favor—though the Service physically attached that statement only to its own motion for summary judgment without also physically attaching it to its opposition to Waltham’s motion. The district court held that the Service’s failure also to attach a duplicate of the document to its opposition made no legal difference (even though the Service did not literally comply with the rule). And, that holding makes perfect sense to us. After all, the Service’s error (failing to make an additional copy of a document already in the record) was highly technical and nonprejudicial. Waltham, and the court, were fully aware of the Service’s view about the facts. Were one to accept Waltham’s literal interpretation of the local rule, it could require the district court, nonsensically, to grant both the Service’s motion (which all factual statements adequately support) and Waltham’s conflicting motion. The district court has authority to interpret its own local rules in nontechnical ways and to avoid such results. United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). The district court’s nonliteral reading of the summary judgment rule, creating an exception for the present circumstances, falls'well within the scope of that legal authority. 2. Waltham argues that the- district court should have granted its discovery request for “two filing cabinets full” of material that the Service compiled during the course of its environmental investigations. The court denied the request because it accepted the Service’s statement that it had not relied upon any of this material in reaching any of the here-relevant conclusions. The court has broad power to control discovery. Santiago v. Fenton, 891 F.2d 373, 379 (1st Cir.1989). In doing so, it can weigh discovery burdens against the likelihood of finding relevant material. Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 186-87 (1st Cir.1989). We will overturn a discovery decision of this sort only when we find it plainly wrong and substantially prejudicial. Santiago, 891 F.2d at 379; Mack, 871 F.2d at 186. Waltham has not provided us with any basis for finding a violation of these legal standards. 3. Waltham argues that the court should have ordered the Service to provide it with a document called the “Berger assessment”—a document that apparently discusses the environmental effects of choosing other sites for the new facility. Waltham, however,, has not convincingly explained why the document is relevant to the legal issues before us in this ease. And, it provides us with no basis for finding that the district court violated any of the legal standards described in the preceding paragraph. 4. Waltham asked the district court not to admit in evidence a letter from the Service proposing to pay Waltham $1.6 million for roadway improvements. The district court did not rule on Waltham’s claim that the letter was not properly authenticated. The letter, in our view, has no significance. Other documents, properly admitted, say that the Service was willing to pay Waltham $1.5 million for roadway improvements. And, we do not see how the $100,000 difference (between the $1.6 million and $1.5 million offers) could make any difference to the outcome of this case. We have not considered the $1.6 million letter in reaching our decision. Insofar as the district court may have done so (say, in respect to traffic impact), any error is harmless. United States v. Pisari, 636 F.2d 855, 859 (1st Cir.1981). 5. Waltham has made various claims to the effect that the Postal Service has acted in “bad faith.” We have not found in the record, however, specific evidence of “bad faith” sufficient to invalidate the Service’s finding in respect to the lack of adverse environmental impact or to demonstrate a violation of any other relevant law that Waltham has mentioned. IV Adequate Consultation 1. The law requires the Service to consult with local authorities about its project. The Intergovernmental Cooperation Act (“ICA”), for example, says that [t]o the extent possible, all ... local viewpoints shall be considered in planning development programs and projects.... ICA § 401(c), 31 U.S.C. § 6506(c). An Executive Order, elaborating this requirement, says [fjederal agencies shall provide opportunities for consultation by elected officials of those State and local governments ... that would be directly affected by ... direct Federal development.... Moreover, [f]or those cases where the concerns cannot be accommodated, Federal officials shall explain the bases for their decision in a timely manner. Exec.Order No. 12,372, 47 Fed.Reg. 30,959 (1982). Waltham claims that the Service violated these legal obligations. It concedes that Service employees met with Waltham officials many times. It does not deny, for example, the accuracy of an affidavit that refers to such meetings in October 1989, January, March, June (two), July, September, October, November and December 1990, and March and May 1991. But, says Waltham, all pre-May 1990 meetings concerned other possible project sites, and all post-May 1990 meetings took place only after the Service had developed a “bureaucratic commitment” to the present site — which fact, in Waltham’s view, makes the post-May 1990 meetings irrelevant. In our view, neither the Act nor the Order requires a federal agency to begin consultations before the agency makes any commitment to a particular project or takes any steps towards carrying out such a project. Nothing in the Act or Order suggests an intent to integrate federal, state, and local bureaucracies to the extent that any such interpretation would require. Nor does the language of the Act or Order suggest an intent to give state or local officials the right to veto federal projects, where, say, speed is important or practical considerations indicate that a degree of pre-consultation federal bureaucratic activity is desirable. Rather, the relevant statutory language simply requires “consider[ation]” of “local viewpoints” during the “planning” stages of a project. In these respects it is quite different from the language of, say, NEPA, a statute that insists that “a detailed statement by the responsible official on the environmental impact of the proposed action” be included in “every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment,” that is, at the time when the decision to which NEPA obligations attach is made. NEPA § 102, 42 U.S.C. § 4332(C)(i); see also Watt, 716 F.2d at 952. With these provisions in mind, we have examined the record. We find the record indicates that the Service provided meaningful consultation, considered local points of view, and made reasonable efforts to accommodate local concerns. Publication of the first environmental assessment in May 1990 did not preclude subsequent, meaningful, consultation, consideration, and accommodation. The development of further assessments, the changes subsequently made to mitigate potentially adverse environmental effects, and other related changes, all show that the Service listened to local viewpoints and made reasonable accommodation efforts. Waltham strongly states the contrary, but it does not point to record evidence sufficient to show either a lack of meaningful consultations or a failure to take local points of view into account, whether those consultations and accommodations took place before, or only after, May 1990. 2. Waltham says that the Service has violated the Executive Order (or the Act) because the project will diminish local tax revenues by $560,000, and the Service did not adequately address these tax consequences. We are willing to assume, for argument’s sake, that the Executive Order imposes upon the federal government an obligation, legally enforceable in present circumstances, to make “efforts to accommodate” local concerns and “to explain the bases for their decision” when they do not accommodate local concerns. But still, the Executive Order would not prohibit the federal government from removing local property from state and local tax rolls. It would simply require the government to have a sensible, understandable reason for doing so. In this case, the adverse local tax consequences understandably flow from the federal government’s need for a new postal facility and its decision to build that facility in Waltham. More importantly, the Service did consider the tax consequences of its action. The initial environmental assessment identifies the issue and says that the Service had “agreed to provide infrastructure improvements in lieu of taxes,” as does the second assessment. Waltham points to no specific evidence that might show, in this respect, a violation of the Act or Order. 3. Waltham makes a similar complaint about the Service’s consideration of zoning issues. Both the first and second environmental assessments, however, discuss zoning issues. The assessment notes that the new facility would technically be a nonconforming use, but that it would “not significantly change the existing land use from an aesthetics perspective” and that the previous owner’s use of the property was similar to the Service’s proposed use. Waltham has not pointed to any specific zoning-related problem that might show a violation of the Act or the Order. 4. Lexington points to Postal Service regulations that require the Service to notify it of any proposed environmental assessment before the Service makes that assessment. 39 C.F.R. §§ 775.7(b), 775.10(a). Lexington adds that it did not receive notice prior to publication of the first environmental assessment in May 1990. Assuming (as did the district court) for summary judgment purposes that this is so, the notice failure still does not make a significant legal difference. That is because the Service, after May 1990, provided Lexington with an adequate opportunity to comment, particularly about the potential traffic problems that concerned the town. And, subsequent to May 1990 the Service prepared additional environmental assessments and consulted with Lexington. Because meaningful consultation subsequently took place, any notice violation, in the district court’s view, was harmless and did not warrant an injunction. The record adequately supports the conclusion that any such violation would not significantly affect the quality of the environment. V The Clean Water Act Waltham argues that the Service has violated the Clean Water Act, 33 U.S.C. §§ 1342,1344, by failing to obtain two necessary permits: 1) a permit that allows the discharge of material onto wetlands and 2) a permit that allows the discharge of pollutants. We do not believe the Clean Water Act requires the Service to obtain the first permit because the third assessment makes clear that there will not be sufficient discharge of material onto wetlands to trigger the permit requirement. See p. 242, supra. The Service concedes that it needs the second permit, and it is in the process of obtaining it. The district court specified that its “judgment ... is dependent upon the issuance of [that] permit.” We therefore see no need for an injunction. Weinberger v. Romero-Barcelo, 456 U.S. 305, 316, 320, 102 S.Ct. 1798, 1805, 1807, 72 L.Ed.2d 91 (1982); United States v. Metropolitan Dist. Comm’n, 930 F.2d 132, 135 (1st Cir.1991). VI Conclusion We have found none of appellants’ arguments of sufficient legal merit to undermine the district court s ultimate determination. We find any remaining arguments without legal merit. For these reasons, the judgment of the district court is Affirmed. APPENDIX

Sasser v. Administrator, United States Environmental Protection Agency

OPINION BUTZNER, Senior Circuit Judge: The primary issue in this petition for review is whether a person who is charged in an administrative complaint with discharging pollutants into the waters of the United States is entitled to be tried by a jury. Dr. Marshall C. Sasser seeks to set aside a final order of the Administrator of the Environmental Protection Agency assessing Class II penalties for reimpounding freshwater tidal wetlands without a permit. 33 U.S.C. § 1311(a). Dr. Sasser complains that the Administrator lacked subject matter jurisdiction over his case, that the administrative proceedings violated his Seventh Amendment right to a jury trial, and that the Administrator failed to consider his good faith. We deny the petition for review. I Located on Dr. Sasser’s plantation adjacent to the Pee Dee River in South Carolina are long-abandoned rice fields whose dikes have been breached creating tidal freshwater wetlands. In 1981, Dr. Sasser applied to the Corps of Engineers for a permit to restore the dikes around a 76-acre field in order to impound water for duck hunting. He sought to reconstruct approximately 4,800 linear feet of an existing embankment, repair six breaks, and install a water gate. Various state and federal agencies objected to the project, and the Corps denied the permit. Several years later, acting on the assumption that a nationwide permit authorized the work, Dr. Sasser constructed a new embankment inside of an old, deteriorated embankment. The work involved filling the breaks in the old embankment, installing a water gate, and discharging dredged or fill material into the wetlands. After the Corps discovered the project in 1987, Dr. Sasser declined to restore the property to its previous condition as wetlands. The Corps then referred the matter to the Environmental Protection Agency (EPA). The EPA issued an administrative order requiring Dr. Sasser to cease and desist his activities and to submit a restoration plan. Upon Dr. Sasser’s failure to comply, the EPA again requested the plan. In June 1988, the EPA issued an administrative consent order containing a restoration plan. Dr. Sasser’s refusal to comply with these orders led to the issuance of a complaint charging violation of 33 U.S.C. § 1311 by discharging a pollutant from a point source into a tributary of the navigable Pee Dee River, which is a water of the United States. See United States v. Sasser, 967 F.2d 993, 995-96 (4th Cir.1992) (holding that waterway in question is navigable), petition for cert. filed, (Oct. 29, 1992). An administrative law judge found facts sufficient to sustain the allegations of the complaint, imposed a $125,000 fine, and directed Dr. Sasser to submit and implement a restoration plan. On appeal, the agency’s chief judicial officer reimposed the fine and affirmed.. This decision became the Administrator’s final order which is the subject of this petition. II Dr. Sasser protests the Administrator’s order on the ground that the Administrator lacked subject matter jurisdiction to determine liability and assess a civil penalty. An action in the district court, he asserts, was the only means of imposing a civil penalty for discharging pollutants into wetlands without a permit. Dr. Sasser first raised this issue in his reply brief , on appeal. A motion to dismiss for lack of subject matter jurisdiction may be raised at any time. Fed.R.Civ.P. 12(h). Accordingly, Dr. Sasser’s claim is timely, and the issue is properly before this court. The parties have thoroughly briefed and argued the question. Material facts are not in dispute, and the agency is precluded from deciding the constitutional issue. See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975). The administrative complaint charges that in December 1986 Dr. Sasser discharged pollutants into the wetlands without a permit. At that time, EPA’s sole means of recovering a civil penalty was through proceedings in the district court. 33 U.S.C. § 1319(b). If matters had remained in this posture, Dr..Sasser’s jurisdictional challenge would have merit, but two additional circumstances must be taken into account. By an amendment to the Act in February 1987, Congress authorized the Administrator to assess civil penalties. Assessment of a Class II penalty requires the Administrator to conduct proceedings in accordance with the Administrative Procedure Act, 5 U.S.C. § 554. An aggrieved person is entitled to judicial review. See 33 U.S.C. § 1319(g)(1), (2KB), and (8). The Administrator acted pursuant to the amendment. Dr. Sasser contends that administrative assessment of the penalty constitutes an unlawful retroactive application of the amendment. If the only violation of the Act had occurred in December 1986, Dr. Sasser would have at least a colorable argument against retroaction, but it is an argument which we need not address. Dr. Sasser’s violation of the Act is a continuing one. Each day the pollutant remains in the wetlands without a permit constitutes an additional day of violation. See United States v. Ciampitti, 669 F.Supp. 684, 700 (D.N.J.1987); United States v. Cumberland Farms, 647 F.Supp. 1166, 1183-84 (D.Mass.1986), aff'd 826 F.2d 1151 (1st Cir.1987). The administrative complaint appropriately charged a continuing violation. The Act, both before and after the 1987 amendment, authorized the imposition of a civil penalty not to exceed $10,000 for each day of the continuing violation, subject in the case of an administrative assessment to a maximum penalty of $125,000. See 33 U.S.C. § 1319(d) and (g)(2)(B). Since Dr. Sasser’s violations continued long after the enactment of the 1987 amendment, the Administrator acted within the jurisdiction that Congress conferred on him in 33 U.S.C. § 1319(g), and this court has jurisdiction to review the Administrator’s assessment. See § 1319(g)(8)(B). Ill Closely related to Dr. Sasser’s contention about lack of jurisdiction is his claim that the Seventh Amendment entitles him to a jury trial. He relies primarily on Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). The Seventh Amendment preserves the right to a jury in “[sjuits at common law, where the value in controversy shall exceed twenty dollars.” U.S. Const. Amend. VII. Tull dealt with a civil action brought by the United States against a person who dumped fill in wetlands without a permit. The government commenced the action before enactment of the 1987 amendment. The Court held that the Seventh Amendment afforded the defendant a jury on the issue of liability. 481 U.S. at 417-25, 107 S.Ct. at 1835-39. The Court also held that the defendant did not have a Seventh Amendment right to have the jury assess the civil penalty and that Congress intended trial judges to determine the amount of the penalty. 481 U.S. at 425-27, 107 S.Ct. at 1839-40. The Court had no occasion to decide in Tull the issue of Congress’s authority to assign enforcement of the Act to an administrative agency without the intervention of a jury. But it noted precedent “holding that the Seventh Amendment is not applicable to administrative proceedings.” 481 U.S. at 418 n. 4, 107 S.Ct. at 1835 n. 4. Generally speaking, the Seventh Amendment does not apply to disputes over statutory public rights, “those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U.S. 22, 50, 52 S.Ct. 285, 292, 76 L.Ed. 598 (1932); see Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-55, 109 S.Ct. 2782, 2795-97, 106 L.Ed.2d 26 (1989); Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 449-61, 97 S.Ct. 1261, 1266-72, 51 L.Ed.2d 464 (1977). The dispute between Dr. Sasser and the Administrator clearly involves statutory public rights. Authority for this proposition is found in the congressional declaration that the goals of the Act are the restoration and maintenance of the integrity of the nation’s waters. 33 U.S.C. § 1251 (Supp.1992). Consequently, we conclude that the Seventh Amendment did not prohibit the assessment of a civil penalty against Dr. Sasser without the intervention of a jury. IV Contending that his good faith reliance on the advice of counsel obviates a finding of willfulness, Dr. Sasser protests that the administrative judge erred in imposing the maximum penalty allowed by the Act. We review the penalty under the abuse of discretion standard. 33 U.S.C. § 1319(g)(8). At the time pertinent to this case, the Corps of Engineers was authorized to issue two types of permits for the discharge of dredged or fill materials. The first type was an individual permit which was issued on a case-by-case basis after public comment about the project. See 33 CFR Part 325 (1986). Dr. Sasser applied for an individual permit, but the Corps denied it after state and federal agencies opposed it. The Corps also issued nationwide permits, which allowed work to be undertaken without an individual permit. See 33 CFR § 330.5. A neighbor of Dr. Sasser asked the Corps about rehabilitating an existing embankment. After an aerial inspection, the Corps responded by stating in a letter that topping existing embankments was permissible under a nationwide permit that allowed the following work: The repair, rehabilitation or replacement of any previously authorized, currently serviceable structure and/or fill or any currently serviceable structure and/or fill constructed or deposited prior to the requirement for authorization provided such repair, rehabilitation, or replacement does not result in a deviation from plans of the original structure, and/or fill.... See 33 CFR § 330.5(a)(3) (1986). Dr. Sasser did not ask the Corps whether he could do his work under a nationwide permit. Instead, he showed a copy of his neighbor’s letter to his attorney who was not familiar with the permit process. The attorney did not inspect the rice fields that Dr. Sasser proposed to enclose. Nevertheless, relying on Dr. Sasser’s description of the project, the attorney said Dr. Sasser could proceed under the nationwide permit. He made no charge for this offhand advice. As described in Part I of this opinion, Dr. Sasser’s project involved much more than topping an existing embankment or the rehabilitation of a currently serviceable structure. Although persons operating under a nationwide permit generally need not obtain specific approval from the Corps before discharging dredged materials, “if a private party, acting under the assumption that its discharge is allowed under a nationwide permit, makes a discharge, that party bears the risk of liability for rectifying the harm done if in fact the discharge is not permitted.” Orleans Audubon Soc’y v. Lee, 742 F.2d 901, 909-10 (5th Cir.1984) (dictum). The Administrator concluded that Dr. Sasser’s knowledge of the circumstances of his attorney’s opinion and his consistent refusal to comply with the orders of the Corps and the EPA failed to prove good faith. Denial of Dr. Sasser’s claim of good faith reliance on his attorney’s advice was not an abuse of discretion. In addition, the degree of culpability is but one factor pertinent to assessment of civil fines for violations of the Act. 33 U.S.C. § 1319(g)(3). When determining the level of the fine, the Administrator also found that the offense was serious and Dr. Sasser was able to pay the penalty. Substantial evidence supports these findings, and the Administrator’s imposition of the penalty was not an abuse of discretion. Dr. Sasser’s petition for review is denied.

Friends of the Payette v. Horseshoe Bend Hydroelectric Co.

EUGENE A. WRIGHT, Senior Circuit Judge: Two environmental groups allege that the Army Corps of Engineers violated the National Environmental Policy Act by issuing a dredge-and-fill permit for a hydroelectric project without preparing an environmental impact statement. Because we conclude that the Corps’ action was not arbitrary and capricious, we affirm the district court’s dismissal of the action. I On March 10, 1992, the Horseshoe Bend Hydroelectric Company began construction of a 9.5-megawatt hydroelectric generating facility on the Payette River near Horseshoe Bend, Idaho. When completed, the facility will work as follows: An inflatable bladder diversion dam will divert up to 3,500 cubic feet of water per second from a four-and-a-half-mile stretch of the river, routing the water down a diversion canal to a power house. The water will then pass over the powerhouse turbines before returning to the river. A minimum flow of 400 cfs will remain in the river channel, also known as the bypass stretch. The facility is being built at the site of a decommissioned run-of-the-river hydroelectric project, which operated from 1902 to 1954. The new project will expand and use the old project’s diversion canal, which had contained valuable wetlands. Project construction has almost completely destroyed those wetlands. Before starting construction, HBHC and its predecessor in interest, the Boise Cascade Corporation, had to obtain the approval of several state and federal agencies. In July 1986, the Federal Energy Regulatory Commission issued a license for the project to Boise Cascade. Before doing so, FERC prepared an environmental assessment in August 1984 and a supplemental EA in April 1986. Both concluded that the project would not significantly affect the environment. In April 1987, FERC approved Boise Cascade’s transfer of its license to HBHC. HBHC then obtained the necessary state permits allowing it to appropriate water from the river, gain construction access to state-owned lands and build the dam. Lastly, HBHC needed to secure a dredge- and-fill permit from the Army Corps of Engineers. The permit, required by section 404 of the Clean Water Act, would allow HBHC to place dredged or fill material in the river. See 33 U.S.C. § 1344 (1988). HBHC applied for the permit on December 9, 1991. The Corps issued it on March 30, 1992. Although interested parties requested a public hearing, the Corps did not hold one. Like FERC, the Corps found that the project would not significantly impact the environment within the meaning of the National Environmental Policy Act. Therefore, the agency did not prepare an EIS, but issued instead an EA and a finding of no significant impact. The § 404 permit has 17 conditions designed to mitigate environmental harm. Friends of the Payette and Idaho Rivers United, Inc., two environmental organizations, filed suit, claiming that the Corps’ actions violated NEPA and the Clean Water Act. They sought a declaration that the Corps had not complied with NEPA and the CWA and an injunction halting the project pending preparation of an EIS. The district court set the case for trial. Because it found that admission of almost all extra-record evidence was unwarranted, however, the court disallowed the testimony of 13 of Payette’s 14 proposed witnesses. It reviewed the Corps’ actions based solely on the administrative record and the testimony of William McDonald, the Corps employee who prepared the EA. The court dismissed the suit, holding that the Corps’ decision was reasonable. Payette raises four issues on appeal: (1) whether the Corps’ failure to prepare an EIS was reasonable, (2) whether the court erred in holding that the agency’s jurisdiction over wetlands in the diversion canal was moot, (3) whether the Corps’ permit-granting procedure was flawed for failure to allow adequate public comment and (4) whether the court erred by refusing to allow extra-record evidence. Payette also asks for attorneys fees. II A. Decision Not to Prepare EIS NEPA requires federal agencies to prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (1988). The Corps concedes that the project constitutes a major Federal action. The issue is whether the Corps properly determined that the project will not significantly affect the environment. After the district court's June 1992 order dismissing the action, we adopted a new standard for reviewing an agency's decision not to prepare an EIS. We no longer employ a "reasonableness" standard. In Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992), we held that "when a litigant challenges an agency determination on grounds that, in essence, allege that the agency's `expert review ... was incomplete, inconclusive, or inaccurate,' ... the arbitrary and capricious standard is appropriate." (quoting Marsh v. Oregon Natural Resources Council, 490 U.s. 360, 376-77, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989)). We still must ensure that an agency has taken a "hard look" at the environmental consequences of its action and that its decision is "founded on a reasoned evaluation `of the relevant factors.'" Id. at 1350 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. at 1861). If we are convinced that its discretion is truly informed, however, we must defer to that discretion. Id. Fayette cites ten bases for its contention that the Corps' decision not to prepare an EIS was erroneous. We reject the contention, but will discuss each basis in turn. 1. Wetlands Fayette contends that the Corps erroneously determined that wetlands will not be affected significantly. The Corps concluded that the mitigation measures required by the permit compensated for any adverse impacts. We can consider the effect of mitigation measures in determining whether preparation of an EIS is necessary. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). If significant measures are taken to "`mitigate the project's effects,' they need not completely compensate for adverse environmental impacts." Id. (quoting Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1982)). The Corps verified an environmental consultant's estimate that 69.45 acres of wetlands were within the project area. Without mitigation, 30.99 acres of riparian habitat would be lost. Strategic placement of boulders to raise the river stage and irrigation flows from uphill mitigation lands would reduce the loss to 24.69 acres. To compensate for this loss, the Corps required HBHC to implement a mitigation plan that would create 66.64 acres in new wetlands through use of water channels, grass seeding, and tree and shrub planting. The plan also requires monitoring and supplemental mitigation measures if revegetation goals are not met. Although the measures may not compensate completely for adverse impacts, they are significant. The Corps' conclusion that wetlands would not be affected significantly was not arbitrary and capricious. 2. Water Quality Fayette asserts that the Corps relied inappropriately on the Idaho Department of Environmental Quality's certification of compliance with state water quality standards. IDEQ granted the certification after HBHC agreed to implement a three-year water quality monitoring program following project construction. If monitoring indicates violations of state standards, HBHC must adopt a mitigation plan. Fay-ette contends that this after-the-fact monitoring cannot supplant before-the-fact evaluation and discussion of mitigation measures. It argues that the project will have a significant impact on water quality due to a decrease in oxygen and increases in temperature, light penetration and aquatic plant stimulation. The district court noted that although the Corps cannot know exactly how the project will affect water quality, the Corps had reviewed studies attempting to model project impacts. The Corps' reliance on these studies and on a monitoring program that should identify problems before they become serious is not arbitrary and capricious. 3. Fisheries Next, Fayette argues that the EA did not adequately consider the project's impact on the fishery in the bypass stretch. The Corps concedes that decreased flows and power turbines will kill fish and that although the power canal will provide run habitat, it will lack other diversity. The Corps’ permit, however, requires mitigation measures to compensate for these losses. These measures include (1) a plan to enhance fish habitat in nearby Shaffer Creek, (2) an improved monitoring plan, and (3) additional mandatory mitigation measures if monitoring shows that the mitigation plan has not achieved acceptable results. The measures were strengthened at the insistence of the Fish and Wildlife Service, which approved the project. The Corps’ determination that the project would not significantly affect fisheries was not arbitrary and capricious. 4. Endangered Species Payette contends that the Corps did not evaluate the project’s impact on the bald eagles that winter in the project area. We disagree. The Corps, in consultation with the FWS, included two permit conditions designed to protect the eagles and their habitat. First, every five years for the life of the project, HBHC must provide the Corps with a report on the status of the riparian cottonwood forest in the project area. The forest provides eagle habitat. If project impacts prevent the forest from maintaining itself naturally, HBHC must plant cottonwood tubelings as required by the Corps. Second, the permit requires that power transmission lines be designed to minimize shock hazard to bald eagles. Also, the EA notes that “eagles would still be able to use other riparian zones along the Payette River in the immediate vicinity for their wintering activities.” We find no fault with the Corps’ conclusion that the project would not significantly affect endangered species. 5. Recreation Payette also contends that the Corps gave insufficient consideration to recreation issues other than those relating to an agreement between HBHC and the Western Wildwater Association. We disagree. Project plans call for these mitigation measures: a boat ramp upstream from the dam, a portage path at the dam, a water bypass for boats and flotation devices and the removal of the diversion bladder to allow jet boats to use the main channel during annual races. In addition, HBHC, in consultation with state resource agencies, will place boulders in the bypass reach to increase the river’s width. All of these mitigation measures are significant. The Corps’ conclusion that the project would not significantly affect recreational activities was not arbitrary and capricious. 6. Aesthetics Payette argues that the Corps did not consider adequately the project’s impact on aesthetics, particularly the unsightliness of the reduced water flow in the bypass stretch. Article 29 of HBHC’s FERC license requires the company, in consultation with the Idaho Department of Parks and Recreation, to “design the readily visible surface of the project facilities to preserve or enhance the existing visual environment.” Pursuant to this requirement, HBHC consultants prepared a “Visual Resources Plan.” It calls for revegetation of affected areas with native plant species, installation of troughs to capture runoff for irrigation of replanted areas during droughts, use of earthtones to hide from view the partially-buried powerhouse and . grading to restore the natural contours of the landscape. After considering these mitigative measures and the record as a whole, we agree that the Corps did not act arbitrarily and capriciously in determining that the project would not have a significant impact on aesthetics. 7. Icing Next, Payette maintains that the Corps did not consider adequately the possibility that water diversion would increase the potential for ice formation, ice jams and flooding. The EA acknowledges that potential ice-jam flooding is a risk in that area of the Payette River. The Corps’ hydrology branch, however, evaluated the issue and concluded that the project would not result in an increased flood hazard. Upstream, the dam would trap frazil ice (ice crystals formed in turbulent water) causing ice formation. Although the ice cover would raise the water surface up to eight feet above the normal winter low water mark, the Corps concluded that no damage would occur because the lowest upstream structure is 12 feet above the mark. Although the reduced flow could increase ice formation downstream, it would cause ice jams only rarely. 8. Cumulative Impacts Corps regulations require it to evaluate a project’s cumulative impacts. 33 C.F.R. § 320.4(a)(1) (1992). The Corps concluded that the project would not have a substantial cumulative impact on the aquatic environment. In doing so, the Corps relied primarily on FERC’s analysis of the impact of past and future hydroelectric projects within the Payette River Basin. That analysis, the sole subject of FERC’s supplemental EA, concluded that the project would not contribute to cumulative adverse impacts on important resources. We agree with the district court that the Corps sufficiently considered the project’s cumulative impacts. 9. Alternatives Analysis Payette also asserts that the Corps’ alternatives analysis was inadequate. Section 404(b)(1) guidelines provide that no dredge-and-fill permit shall be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). NEPA guidelines require an EA to include brief discussions of alternatives. 40 C.F.R. § 1508.-9(b). Agencies must “study, 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. § 4332(2)(E) (1988). The Corps’ EA discusses these alternatives: taking no action, increasing bypass flow, relocating the powerhouse, eliminating an excavation section and providing flushing flows to eliminate the riparian habitat loss. The Corps’ alternatives analysis satisfies both CWA and NEPA requirements. 10.Corps’ Reliance on the FERC EA Lastly, Payette argues that the Corps improperly relied on FERC’s EA and supplemental EA. Both EPA and FWS highlighted inadequacies in the earlier studies, upon which FERC’s EAs were based. The Corps responds that it justifiably relied on the FERC documents based on a memorandum of understanding giving FERC lead agency status for environmental matters involving hydroelectric project licensing. Under the memorandum, the Corps must accept FERC’s resolution of environmental issues. We find no error in the Corps’ approach. The Corps reviewed the studies and then conducted its own independent analysis of the project’s environmental impacts. The Corps responded to FWS and EPA concerns by requiring HBHC to alter aspects of the project to lessen its impacts and by including specific agency concerns as conditions of the final permit. We also find significant the agencies’ approval of the project and their refusal to veto the Corps’ decision to issue the permit. B. Characterization of Canal Wetlands Next, Payette argues that the Corps concluded erroneously that the canal wetlands were not within its jurisdiction for purposes of the § 404 permit process and, consequently, did not require adequate mitigation for their destruction. The district court found that because project construction had already destroyed the wetlands, the mitigation issue was moot. 1. Mootness The Corps’ “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). A controversy is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (quoting Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988)). We review de novo questions of mootness. Williams v. United States General Servs. Admin., 905 F.2d 308, 310 (9th Cir.1990). The district court erred in part in finding this issue moot. Payette sought an injunction to stop the project until the Corps complied with NEPA and the CWA. It did not seek to stop destruction of the wetlands. Rather, it challenged the Corps’ determination that the wetlands were not within its jurisdiction. That issue became moot for NEPA purposes, see Headwaters, 893 F.2d at 1015, but not for CWA purposes. If the wetlands were within the Corps’ jurisdiction, the § 404 permit might contain insufficient mitigation measures to compensate for wetlands loss. 2. Corps Jurisdiction The Corps determined that because the canal wetlands were maintained by irrigation water, they were not subject to its jurisdiction. Generally, the Corps does not consider “[ajrtificially irrigated areas which would revert to upland if the irrigation ceased” as subject to § 404 permit requirements. See 51 Fed.Reg. 41,217, § 328.3 (1986) (discussion of public comments and changes accompanying final regulations for Corps regulatory programs). The Corps may, in its discretion and on a case-by-case basis, determine that a body of water within this category is within its jurisdiction. Id. Payette has presented no evidence showing that the canal wetlands would remain wetlands if irrigation stopped. The Corps’ classification of the wetlands as “non-jurisdictional” was not arbitrary and capricious. See Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir.1992). We also find it significant that the FERC license requires mitigation for destruction of these wetlands. C. Corps Process Payette maintains that the Corps’ decision-making process was flawed because the Corps was racing to meet the March 12th construction deadline mandated by HBHC’s FERC license. Consequently, Payette asserts, public notice was deficient, the public comment period was inadequate and the Corps abused its discretion by not holding a public hearing. We disagree. 1. Public Notice The public notice provided “sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment” as required by Corps regulations. 33 C.F.R. § 325.3(a). It described the project, discussed wetlands impacts and fish habitat mitigation, and notified the public of the Corps’ intent to consult with other agencies regarding potential effects on endangered species, cultural resources and water quality. 2. Public Comment Period The Corps filed the notice on December 18, 1991, and, at the request of agencies and interested individuals, subsequently extended the public comment period from January 17 to January 31, 1992. This six-week period provided sufficient time for interested parties to comment. 3. Public Hearing The Corps’ § 404 permit regulations require it to hold a public hearing, upon proper request, “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.” 33 C.F.R. § 327.4(b). The Corps received more than 250 requests for a hearing. District Engineer Volz denied one saying, “Many technical issues have been raised ... and to hold a public hearing or to further extend the comment period is not considered warranted to gather more technical data.” He noted that public meetings held by HBHC and several governmental bodies and the Corps’ notice adequately informed the public. Volz concluded that a hearing would be useful only as a forum to enable project proponents and opponents to air their views. He also concluded that because the Corps was aware of strong support on both sides, a hearing was unnecessary. In light of the facts identified by Volz and his thorough analysis of all the relevant factors, we hold that the Corps did not abuse its discretion in denying requests for a public hearing. D. District Court Exclusion of Extra-Record Evidence Finally, Payette argues that the district court erred by refusing to admit its experts’ testimony and affidavits regarding the project’s effects on water quality, fisheries, bald eagles, recreation and aesthetics. We review for abuse of discretion the court’s decision to exclude evidence. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir.1988). Generally, review of agency action, including review under NEPA, is limited to the administrative record but may be expanded beyond the record if necessary to explain agency decisions. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). When a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency’s decisions. Id. The extra-record inquiry is limited to determining whether the agency has considered all relevant factors and has explained its decision. Id. The district court may also look outside the record when the agency has relied on documents not in the record and when supplementing the record is necessary to explain technical terms or complex subject matter. Id. The court excluded the testimony of 13 of Payette’s 14 proposed witnesses but allowed William McDonald, the Corps employee who wrote the document, to testify about the agency’s review of HBHC’s application. The court did not abuse its discretion in excluding the proffered evidence. Much of it addressed concerns that the same witnesses had already raised during the public comment period. The administrative record sufficiently explained the Corps’ decision and showed that the agency considered the relevant factors. No additional information was necessary for the court’s review. Ill We conclude that the district court did not err in dismissing this action. It did err in holding that whether the Corps had jurisdiction over the canal wetlands was moot. Because the Corps’ decision that the wetlands were non-jurisdictional was not arbitrary and capricious, however, we need not remand for further proceedings. We AFFIRM the district court on all issues except the mootness issue on which we REVERSE. Because Payette and Idaho Rivers are not prevailing parties, we deny their request for attorneys fees. . The Idaho Division of Environmental Quality and FERC were defendants. The action against IDEQ was dismissed by stipulation. The district court dismissed FERC after finding that we have exclusive jurisdiction over appeals from FERC decisions. . The canal has been used as an irrigation canal since power production ended in 1954. . The record contains a January 1983 letter from Russel Manwaring, an Agriculture Department district conservationist, to Boise Cascade. Manwaring writes that "parts of the canal ... are wet throughout the year and may have standing water of up to 3 feet in depth.” (emphasis added). He adds that the water comes from "various sources, such as runoff into the canal, springs, and Kennedy's (an individual with water rights to the canal) irrigation water.” This does not necessarily contradict the Corps’ conclusion that the area would revert to upland if irrigation ceased. . NEPA regulations require agencies to hold a public hearing when required by statutes applicable to the agency. 40 C.F.R. § 1506.6(c).

Sylvester v. U.S. Army Corps of Engineers

SNEED, Circuit Judge: Sylvester appeals the district court’s denial of a motion for a preliminary injunction. We affirm. I. FACTS AND PROCEEDINGS BELOW This appeal addresses issues not before this court in an earlier appeal in which we reversed the district court’s issuance of a temporary injunction. See Sylvester v. United States Army Corps of Eng’rs, 871 F.2d 817 (9th Cir.1989) (Sylvester I). The facts and then existing procedural history were fully set out in our first opinion. See id. at 818-19. Following our remand to the district court, Sylvester filed a motion for a preliminary injunction to halt, in effect, the construction of the proposed golf course based on the Clean Water Act (CWA), 33 U.S.C. § 1344(a) (1982). He also filed a motion for partial summary judgment based on his National Environmental' Policy Act (NEPA) claims, 42 U.S.C. § 4332(2)(E) (1982). Perini Land & Development Co. (Perini) opposed the preliminary injunction motion and also filed a partial summary judgment motion on the NEPA claims. The district court denied Sylvester’s motion for a preliminary injunction and granted Perini’s motion for partial summary judgment. Sylvester appealed to this court, seeking an emergency injunction halting construction of the proposed golf course. We affirm. II. JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331 (1982). We have jurisdiction under § 1292(a). m. STANDARD OF REVIEW We review the district court’s refusal to grant injunctive relief for abuse of discretion. See Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th Cir.1975). This court will set aside the Corps’ decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.” 5 U.S.C. § 706(2)(A) (1982). IV. ANALYSIS Sylvester raises three objections to the district court’s decision which we will address in turn. In sum, Sylvester argues that the Corps violated the CWA, the NEPA, and its own regulations in issuing a permit to Perini to fill eleven acres of wetlands in the process of building a golf course. A. Practicable Alternative under the CWA First, we turn to Sylvester’s claim that the Corps impermissibly accepted Perini’s definition of the project as necessitating an on-site, eighteen hole golf course. By accepting this definition, Sylvester contends that the Corps’ evaluation of practicable alternatives was skewed in favor of Perini. The regulations implementing § 404 of the CWA provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a) (1988) (emphasis added). The Corps defines a practicable alternative as an alternative that “is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2) (emphasis added). Further, because the golf course is not a water dependent activity, the Corps’ regulations presume that practicable alternatives are available “unless clearly demonstrated otherwise.” Id. § 230.10(a)(3); see also Louisiana Wildlife Fed’n, Inc. v. York, 603 F.Supp. 518, 527 (W.D.La.1984), aff'd in part and vacated in part, 761 F.2d 1044 (5th Cir.1985) (“[Classification of an activity as ‘non-water dependent’ does not serve as an automatic bar to issuance of a permit ... [it] simply necessitates a more persuasive showing than otherwise concerning the lack of alternatives.”). In its Environmental Assessment (EA), the Corps defined the project’s purpose as follows: To construct an 18-hole, links style, championship golf course and other recreational amenities in conjunction with the development of the proposed Resort at Squaw Creek. Research conducted for the applicant has indicated that a quality 18-hole golf course is an essential element for a successful alpine destination resort. Sylvester protests that the use of this definition impermissibly skewed the “practicable alternatives” analysis in favor of Perini. Specifically, Sylvester objects to the Corps’ failure to consider off-site locations for the golf course, i.e., a site that was not contiguous to the rest of the resort complex. The Corps rejected consideration of such an alternative because it “did not meet [Peri-ni’s] basic purpose and need.” The Corps did note, however, that two off-site locations were considered but rejected because of insufficient size and the potential for more severe environmental impacts. In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics. See Friends of the Earth v. Hintz, 800 F.2d 822, 833-34 (9th Cir.1986). In addition, the Corps has a duty to consider the applicant’s purpose. As the Fifth Circuit observed: "[T]he Corps has a duty to take into account the objectives of the applicant’s project. Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable.” Louisiana Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985) (per curiam) (footnote omitted). Obviously, an applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable. This court in Hintz quite properly suggested that the applicant’s purpose must be “legitimate.” Id. at 833. Yet, in determining whether an alternate site is practicable, the Corps is not entitled to reject Perini’s genuine and legitimate conclusion that the type of golf course it wishes to construct is economically advantageous to its resort development. By contrast, an alternative site does not have to accommodate components of a project that are merely incidental to the applicant’s basic purpose. For example, in Shoreline Assocs. v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983), aff'd, 725 F.2d 677 (4th Cir.1984), the Corps refused to issue a permit to a developer for building a number of waterfront town houses together with a boat storage and launching facility. The developer argued that the Corps’ proposed alternative site for the town houses could not accommodate the boat storage and launch area. The court upheld the Corps’ denial of the permit, observing that the boat facilities were merely “incidental” to the town house development. Id. In this case, it is not the resort buildings that are at issue as were the town houses in Shoreline. The location of the resort buildings was fixed by decisions not involving the Corps of Engineers; and we held in Sylvester I that the location of the proposed golf course partially on wetlands did not “federalize” the entire development. See 871 F.2d at 823. Rather the issue in this case, Sylvester II, is whether this proposed location ignores other reasonable and practicable alternatives, including no golf course at all. Resolution of this issue requires that the relationship of the course to the entire project be considered. The Corps of Engineers did consider this relationship. Doing so was neither arbitrary nor capricious. In no way does this conclusion conflict with Sylvester I. A relationship required to be considered in determining reasonable and practicable alternatives need not be of such significance as would be necessary to “federalize” the entire project. True, the golf course is not incidental to the resort; but then neither is it the compelling force, the centerpiece; of the resort. To illustrate, Shoreline would have resembled Sylvester I had the only issue been the location of the boat storage and launch sites, the location of the town houses already having been fixed on a site not subject to federal jurisdiction. Obviously the relationship between the town houses and the boat storage and launch sites would be considered in evaluating possible alternative sites of the latter two; equally obvious, this relationship should not “federalize” the entire project. B. Evaluation of the Benefits of the Golf Course Sylvester next argues that the Corps’ analysis of the “reasonable alternatives” under the NEPA to the project was improper. Sylvester contends that the Corps limited its consideration of the impact of the proposed development to only those of the golf course while simultaneously including the benefits from the entire resort complex. Sylvester argues that such an analysis violates the Corps’ regulations. Similarly, Sylvester argues that the Corps’ CWA “public interest analysis” was likewise skewed in favor of the project. It is Sylvester’s refusal to recognize the difference between a relationship that “federalizes” an entire project and one that is properly considered in evaluating benefits of a proposed federal action that lies at the bottom of his assertions that the Corps violated its regulations and skewed its CWA public interest analysis. The Corps did not, as Sylvester argues, weigh the benefits of the entire project against the environmental impacts of the golf course. The EA makes plain that the Corps followed its regulations and weighed only the benefits of the golf course to the resort. We conclude, therefore, that the Corps quite properly did measure the benefit of the golf course in terms of its contribution to making the resort an economically viable year-round facility with all of its attendant advantages. This analysis was proper under both the CWA and the NEPA. C. Irreparable Harm In his final argument, Sylvester contends that in denying his motion for a preliminary injunction to halt the construction of the golf course the district court erred in concluding there was no irreparable harm resulting from the construction of the golf course. Presumably the irreparable harm to which Sylvester alludes is the alteration, or in his view, destruction of the wetlands. Because we conclude that the Corps action was neither arbitrary nor capricious, we reject his allegation of irreparable harm. Moreover, even if we accept the wetlands impairment as an irreparable loss, this would not carry the day for Sylvester because of our holding that Sylvester has no fair chance of succeeding on the merits. AFFIRMED. . The Corps’ regulations require it to include a discussion of the “reasonable alternatives” to the proposed development in an EA. See 33 C.F.R. pt. 325, app. B § 7 (1988). . The Corps’ regulations require that ”[i]n all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal." 33 C.F.R. pt. 325 app. B, § 7(3). . 33 C.F.R. § 320.4(a) (1988) requires the Corps to evaluate “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” .We also note that the public interest review under the CWA encompasses more factors than the NEPA analysis. The Corps’ regulations require it to consider a broad range of interests that are not included under the “reasonable alternative” analysis under the NEPA. See 33 C.F.R. § 320.4(a) (listing, for example, conservation, economics, aesthetics, recreation, and "the needs and welfare of the people”). Further, under the CWA, the Corps is not limited by a regulation similar to 33 C.F.R. pt 325 app. B § 7, see supra note 2. As a consequence, the Corps could properly consider a wider range of facts in conducting its public interest analysis than the reasonable alternatives analysis.

Missouri Coalition for the Environment v. Corps of Engineers of the United States Army

HENRY WOODS, District Judge. The Missouri Coalition for the Environment, the individual plaintiffs and the organizational plaintiffs, collectively referred to herein as the “Coalition,” appeal from a final judgment of the district court upholding defendant United States Army Corps of Engineers’ decision not to. revoke, suspend or modify a permit issued to the non-government defendants under Section 404 of the Clean Water Act of 1977 (Federal Water Pollution Control Act Amendments of 1972), 33 U.S.C. § 1344, which authorized the discharge of dredged or fill material into a wetland area. The district court rejected the Coalition’s challenges brought under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and under various other environmental statutes and regulations, finding that the decision of the Corps was not arbitrary, capricious, unreasonable or otherwise not in accordance with law. We affirm. BACKGROUND Because the district court’s exhaustive findings of fact and conclusions of law are reported in Missouri Coalition for the Environment, et al. v. Corps of Engineers of the United States Army, et al., 678 F.Supp. 790 (E.D.Mo.1988), the relevant facts need not be restated in great detail here. In 1983 defendants Riverport Associates, a limited partnership, Riverport, Inc., its general partner, and Sverdrup Corporation, a developer, proposed to construct a commercial-retail-industrial park of a nonspecific nature to be known as “River-port.” The Riverport site is located within a 22,000 acre floodplain north of the City of St. Louis, Missouri near the junction of the Missouri and Mississippi Rivers. The floodplain, commonly referred to as the Missouri River Bottoms, presently contains various agricultural and wetland areas. Originally the Riverport plans included construction of a 4,100-foot levee to protect the development from a 500-year flood — an 800-foot section of which was to be built across a wetland area. And since construction of this 800-foot section involved the discharge of fill material into a wetland, Riverport Associates was required to apply to the Corps for a Section 404 permit. With the exception of this permit requirement, there was no other federal involvement with the project. In considering the permit application, the Corps initially conducted an evaluation and environmental assessment (EA) of the proposed Riverport development. The EA concluded with a finding that construction of the levee could have no significant effect on the quality of the human environment. Based on this finding, the Corps’ District Engineer determined' that the permit could properly be issued without first preparing an Environmental Impact Statement (EIS). The Section 404 permit was thus issued by the Corps on May 16, 1985.- In November, 1985 defendant St. Louis County, wherein Riverport is located, announced its intention to purchase 100 acres within Riverport. The purpose of this acquisition was to allow St. Louis County to substitute a domed football stadium for certain of the originally planned retail, commercial and industrial facilities. In accord with its intention, St. Louis County asked the Corps to reevaluate the issuance of its Section 404 permit to determine whether the substitution would require the permit to be revoked, suspended or modified under the Corps’ regulations. Acting on this request the Corps solicited evidence and opinions from the parties, private organizations, individual experts, local government officials, state agencies and federal agencies as to what effects the proposed stadium would have on the environment. The reevaluation process consumed a total of sixteen months and generated an administrative record weighing 66 pounds. There was testimony that this was the most comprehensive reevaluation undertaken by the Kansas City District in at least the last ten years. On June 22, 1987 a “Memorandum For Record” (MFR) was issued to record the results of the District Engineer’s reevaluation. As stated in the MFR, if the District Engineer .determined that there was a significant increase in the scope of the permitted activity, the changed circumstances and conditions would require that a new permit application be processed. But if there was no significant increase, then the reevaluation would be limited to the question of whether modification, revocation or suspension of the permit was required given considerations of the public interest. The MFR indicates that the District Engineer found, first, that the addition of a stadium to Riverport did not significantly increase the scope of the permitted activity, which was filling of wetlands; and, second, that the potential impacts of the revised project were substantially similar to those evaluated prior to issuance of the original permit. Based on these findings, he then concluded that the changed circumstances did not require that the permit be modified, suspended or revoked. It is this decision which permitted St. Louis County to proceed with its plan to construct a domed stadium. In response the Coalition filed this action in the district court on July 30, 1987 seeking declaratory and injunctive relief which would, if granted, prevent construction of the proposed stadium. Its primary allegation was that the Corps’ reevaluation violated NEPA’s requirement that an EIS be prepared for major federal actions significantly affecting the environment. But also alleged were violations of the Clean Water Act (CWA), 33 U.S.C. §§ 1344 and 1365; the Fish and Wildlife Coordination Act of 1934 (FWCA), 16 U.S.C. § 662; the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.; the Clean Air Act (CAA), 42 U.S.C. § 7506; and 'regulations promulgated pursuant to each act. In addition, review was sought under the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. The district court conducted a five-day bench trial, at the conclusion of which it held in favor of the defendants on all claims. Specifically, the district court ruled that the Coalition had failed to meet its threshold burden of proof under NEPA, in that it did not raise a substantial environmental issue based on facts which were omitted from the record of the administrative proceedings. The district court also found that the Corps’ decision not to revoke, suspend or modify its permit was not reviewable under the APA but, even if it was, the decision was not arbitrary, capricious or otherwise not in accordance with law. The remaining claims were all found to be without merit and are not at issue here. On this appeal the Coalition advances several bases for reversal. At the outset, it maintains that this case is moot and that the decisions below should be vacated because, subsequent to the trial, the St. Louis football franchise moved to Phoenix, Arizona. In the alternative, the Coalition argues that the MFR was an inadequate deci-sional document upon which the Corps’ determination could be upheld; that the district court improperly excluded certain in-tra-agency communications from its review of the administrative record; that the district court applied the wrong standard of review under NEPA and that the district court erroneously concluded that the Corps had complied with NEPA’s procedural requirements. The Coalition also argues that the Section 404 permit, by its own terms, does not permit stadium construction, that it is in violation of a local zoning ordinance and that it is in violation of Missouri’s implementation plan for the enforcement of federal air pollution standards. I. MOOTNESS The Coalition urges us to hold that issues concerning the proposed addition of a domed football stadium to Riverport are moot because the St. Louis Football Cardinals have, since the trial, moved to Phoenix, Arizona. They state that the Corps had relied on representations made by the defendants to the effect that Mr. Bidwill, owner of the Cardinals, was willing to execute a lease for the proposed Riverport Stadium and that private financing was already in place. But, the Coalition argues, because the Cardinals have left St. Louis, the Corps’ reevaluation no longer has an impact on anybody who is presently planning, or is in a position to build a Riverport stadium. They reason that, since the likelihood of building a stadium is contingent upon the remote possibilities of attracting investors and a new franchise, and because construction is, at best, years away when relevant circumstances may have changed, the case is moot and the decisions below should be vacated. We disagree with the Coalition’s position and hold that this case “fits well within the classic exception to the mootness doctrine for disputes which are ‘capable of repetition, yet evading review.’ ” Thomas v. Bennett, 856 F.2d 1165, 1168 (8th Cir.1988) (citations omitted). In the absence of a class action, the capable of repetition exception applies if “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). We are satisfied that both of these conditions have been met. St. Louis County has purchased, and still owns the proposed stadium site. In addition, it represents to this court that it is actively pursuing stadium development for Riverport and is seeking a National Football League expansion franchise to locate there. These representations, standing alone, may not be sufficient to support a finding that there is a present, live controversy between the parties, but when considered in overall context it becomes clear that such a controversy does indeed presently exist. Cf. Cedar-Riverside Environmental Defense Fund v. Hills, 560 F.2d 377 (8th Cir.1977) (but for intervening municipal legislation, promoter’s express intent to seek financing and developer’s intent to proceed with construction would have been sufficient to present a live controversy). There is more than a reasonable likelihood that the Coalition, or those having identical interests, will pose continuing legal challenges to prevent construction of the proposed stadium. The Coalition does not dispute that it, or those in privity with it, have already challenged the proposed stadium in three separate lawsuits, and that they have organized a “No Dome” committee in opposition to the proposed stadium. Furthermore, the Coalition admits that there is “concerted, unanimous opposition of the business and civic leaders of the St. Louis Community” to construction of a stadium anywhere but in downtown St. Louis. If we were to hold this case moot now, the very real prospect of litigation would hang like a dark cloud over the negotiations between St. Louis County and potential NFL franchisees. The defendants note that the sixteen-month reevaluation and the lengthy district court proceedings have already contributed to the loss of the Cardinals Franchise. By using the threat of protracted litigation, calculated to have the maximum disruptive effect on negotiations, the Coalition would be able to accomplish indirectly what it has not been able to achieve directly in the proceedings below. And it would be able to do so time and again without judicial review because, according to the Coalition’s argument, each time it succeeded in scaring off a potential franchise the case would again become moot. Moreover, the Corps’ reevaluation was concerned only with the potential environmental effects of a generic, domed stadium. The Corps’ decision that a domed stadium would have no impact on the environment materially different from the proposed industrial park did not depend on the Cardinals or any other specific team inhabiting that stadium. The Corps has ruled that its 1985 permit does not foreclose construction of a stadium; the defendants intend to build a stadium and the Coalition intends to oppose it. The Cardinals’ departure does not alter this set of circumstances, and it does not moot this case. There is, accordingly, a present, live controversy before us. E.g., Thomas v. Bennett, supra; Clark v. Brewer, 776 F.2d 226 (8th Cir.1985); In re Martin, 761 F.2d 472 (8th Cir.1985); Terry v. Penn Central Corp., 668 F.2d 188 (3rd Cir.1981). II. NEPA A. The Administrative Record The Coalition argues that the administrative “record” on which we must base our review is the MFR issued by the District Engineer to record the results of his evaluation. And, because the MFR does not contain a “convincing statement of reasons why potential environmental effects are insignificant,” the Corps’ decision not to prepare an EIS must be found to be unreasonable. As a corollary to that argument, the coalition complains also that the district court erred in allowing testimony to “explain” the MFR because it was tantamount to post-hoc rationalization which defeats NEPA’s purpose of insuring informed, well-considered environmental decisions before the fact. These arguments are easily rejected. Both of the Coalition’s arguments are premised upon the false assumption that our judicial review is limited to an examination of the six-page MFR. However, the question before us is not, as the Coalition urges, whether the MFR contains the requisite convincing reasons to stand on its own, but whether, under the appropriate standard of review, the determinative finding in the MFR is sustainable on the administrative record made. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). And that record includes the MFR, the EA and the full ten volumes of documents compiled during the Corps’ reevaluation process. In attempting to sort out and wade through the voluminous administrative record, it was not an abuse of the district court’s discretion to allow testimony of an explanatory nature. Sierra Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir.1985) (citations omitted). The district court did not attempt to try the administrative proceedings de novo, but properly confined its inquiry to the question of whether the Corps’ decision was reasonable, based upon the administrative record. See 678 F.Supp at 800 (The question is whether a reasonable person could reach the same result the Corps reached on the same evidence.) (emphasis added). Since the district court did not create a “new record” on which to base its findings, we find no error. Sierra Club, supra. With respect to the state of the record, the Coalition argues that the district court erroneously denied its motion to compel the Corps to produce requested documents. The documents in question concern certain intra-agency recommendations and preliminary decisions made by agency personnel in connection with the Corps’ 1985 decision that an EIS need not be prepared. But because the propriety of the original permit was not before the district court, we find no abuse of discretion in denying the Coalition’s discovery motion. The Coalition presented its challenge to the original permit in an earlier lawsuit referred to herein as Riverport I. See 678 F.Supp. at 796. In that case the Coalition’s claims regarding the domed stadium were dismissed without prejudice because the Corps had not yet completed its reevaluation. However, “all claims” against the original permit were dismissed with prejudice pursuant to a consent decree signed by the parties and approved by the court. As a result, the Coalition is barred by principles of res judicata from asserting claims related to issuance of the original River-port permit. See Brooks v. Barbour Energy Corp., 804 F.2d 1144 (10th Cir.1986) (settlement agreement approved by court with prejudice is res judicata to later lawsuit based on same occurrence). The documents the Coalition would have included in the record did not concern the question considered by the Corps on reevaluation— whether there would be a significant increase in the scope of the permitted activity —but rather concerned the wisdom of the Corps’ initial decision to issue a permit. It was well within the district court’s discretion to refuse to compel their production. B. Standard of Review NEPA requires preparation of an EIS only if the responsible federal agency determines in the first instance that a “major federal action” will “significantly affect the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Ringsred v. Duluth, 828 F.2d 1305, 1307 (8th Cir.1987); Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir.1986). The Corps presumed in this case that issuance of a Section 404 permit was a major federal action. 678 F.Supp. at 799. But it determined from its original evaluation and EA that granting the Section 404 permit for the originally proposed River-port project would not have a significant effect on the quality of the human environment. And, on reevaluation, the Corps concluded that the addition of a domed stadium to Riverport would not alter that determination since the addition would not have an environmental impact materially different from the originally proposed commercial-industrial-retail park. Accordingly, an EIS was never prepared and the Corps decided that the addition of a stadium did not require the original permit to be revoked, suspended or modified. The Coalition takes exception to these decisions and argues that NEPA required preparation of an EIS under the facts of this case. The standard under which we review an agency’s decision that preparation of an EIS is not required by NEPA is well settled. The initial burden of proof is upon the challenging party to demonstrate that there were facts omitted from the administrative record which, if true, would show that the permitted project could have a substantial impact on the environment. Ringsred v. Duluth, supra at 1307; Olmstead Citizens for a Better Community, supra at 204; Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974) (en banc). If such facts are established, and they are of sufficient significance to warrant shifting the burden of proof, the agency must then demonstrate that its negative determination was reasonable under the circumstances. Id. The test is one of reasonableness—not whether the agency’s determination was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Minnesota Public Interest Research Group, supra at 1320. NEPA is an essentially procedural act designed to insure that the responsible federal agencies make fully informed and well-considered environmental decisions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979). It does not require that agencies reach decisions that we, as judges, would have reached had we been members of the decision-making unit of the agency. Id. Rather, the court’s only role is to insure that the agency has considered the environmental consequences before taking action. Strycker’s Bay, supra 444 U.S. at 227, 100 S.Ct. at 499; Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976). Thus, if the challenging party is unable to meet its initial burden of proof— to demonstrate that the agency failed to consider facts which, if true, would show that the permitted project could have a substantial effect on the environment — we need not reach the question of whether the agency’s decision not to prepare an EIS was reasonable. The record demonstrates that the Coalition failed to sustain its burden. The sheer volume of the administrative record in this case is evidence that the Corps gave environmental effects the type of consideration required under NEPA. Baltimore Gas & Electric Co. v. NRDC, Inc., 462 U.S. 87, 98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). But of more importance is what the record shows. The Corps considered twenty-eight different environmental and other impacts potentially associated with the proposed stadium. 678 F.Supp. at 801. This consideration took into account the views of the Coalition and its experts, private organizations, the Environmental Protection Agency, the Fish and Wildlife Service, the Emergency Management Agency, the National Park Service, the Missouri Department of National Resources, the Missouri Department of Commerce, the Missouri Highway Traffic Commission, the Missouri Attorney General’s Office and the officials of surrounding municipalities. In all, the Corps reviewed twenty-two depositions, thousands of documents and held what amounted to a “seven-month public hearing.” 678 F.Supp. at 796-97. On the surface the Coalition appears to argue that the Corps did not fully consider traffic and safety impacts, air pollution, surface runoff, cumultive impacts of related developments, controversial effects, alternatives to the Riverport site and economic impacts. On closer examination, however, these arguments actually take issue with the “correctness” of the Corps conclusions, not with the procedural adequacy of the Corps’ consideration. See Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207, n. 8 (8th Cir.1986) (the question is whether an agency “considered” environmental effects, not the “correctness” of the decision). The record is replete with evidence that each of these issues was before the Corps. As to most of the issues raised, there was testimony from not only the Coalition’s own experts but from neutral government agencies. In any event, the record does not support the assertion that the Corps failed to fully consider these impacts. Because the Coalition has failed to meet its threshold burden in this regard, we need not address the matter further. III. LAWFULNESS OF STADIUM PROPOSAL The last argument advanced by the Coalition on this appeal is that the stadium proposal is unlawful in three respects. First, the Coalition claims that the proposed stadium exceeds the activities authorized by the Section 404 permit which allows filling of wetlands incident to construction of an “industrial park.” We agree with the defendants’ contention that this argument is frivolous. The activity permitted by the Corps is not the construction of an industrial park or a stadium; it is the filling of wetlands necessary to construct an 800-foot section of the levee. The substitution of a stadium for some unspecified industrial facility does not change the scope of that activity, Moreover, the original EA contemplated that “entertainment facilities” would be a part of Riverport. Clearly, a football stadium is an entertainment facility. Second, the Coalition argues that the proposed stadium is prohibited by a local zoning ordinance. But the Coalition does not allege that deviation from the local ordinance will necessarily affect the “quality of the human environment.” Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207 (8th Cir.1986). “In other words, to the degree that a given zoning ordinance reflects social and economic, rather than ecological, considerations, uses contrary to the ordinance do not implicate the concerns underlying NEPA.” Id. Because the Coalition does not allege that the zoning ordinance is premised on ecological considerations, it has not stated a claim cognizable under NEPA. And because the Section 404 permit expressly provides that it “does not obviate the requirement to obtain state or local assent required by law,” the alleged zoning violation has no relevance to our decision. Finally, the Coalition claims that the proposed stadium violates the air pollution standards set forth in the Missouri State Implementation Plan for Ozone (SIP). See Environmental Protection Agency Regulations at 40 C.F.R. § 51.18(a) (1986). This argument is without merit. The Corps specifically asked the Environmental Protection Agency (EPA), which is charged with the responsibility for implementing the Clean Air Act, 42 U.S.C. § 7401, et seq., whether automobile emissions associated with the proposed stadium were regulated by the Missouri SIP. The EPA responded in the negative. Moreover, the state agency which implements the SIP raised no objections related to air pollution even though it expressed concern with respect to five other environmental issues. We find under these circumstances that the Coalition has shown no violation of NEPA or the Clean Air Act. Accordingly, the judgment of the district court is affirmed. . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. . Section 404 of the Clean Water Act of 1977, 33 U.S.C. § 1344, forbids discharge of dredged or fill materials into "navigable waters” — defined as "waters of the United States” — unless authorized by the Army Corps of Engineers. Fresh water “wetlands” are within this definition and thus are subject to the Corps’ jurisdiction. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); 33 C.F.R. § 323.2(a) (1987) and 33 C.F.R. § 328.3(b) (1987). . An EA is a brief document which addresses the question whether a project subject to a permit requirement could have significant effects on the environment. The EA must conclude either with a determination that an Environmental Impact Statement is required, or with a finding of no significant impact (FONSI). 33 C.F.R. Part 230, Appendix B, § 8(a) (1987). . See Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), which requires all agencies of the federal government to include in every recommendation or report on proposals for "major federal actions significantly affecting the quality of the human environment” a detailed Environmental Impact Statement. . 33 C.F.R. § 325.7 (1987) permits the district engineer to reevaluate the "circumstances and conditions of any permit” and "initiate action to modify, suspend or revoke a permit as may be made necessary by considerations of the public interest.” . See 33 C.F.R. § 325.7(a) (1987) (significant increases in scope of permitted activity will be processed as new applications). . See supra, n. 5. . The relevant portion of the consent decree provides: When the Corps makes its final determination on the reevaluation, this Consent Decree and Judgment shall not be deemed to bar any future litigation concerning the Corps' determination with respect to the domed sports stadium or related parking lots outside the Riverport levee. Plaintiffs’ rights to assert all claims and allegations concerning the stadium and related parking lots outside the Riverport levee are preserved, however, allegations and claims directed to both Riverport (the original permit, including the modification thereto as provided in Paragraph 7 herein) and the stadium shall be preserved only to the extent directed to the stadium and related parking lots outside the Riverport levee. Except as provided ... above, all claims asserted in plaintiffs’ cpmplaint ... are hereby dismissed with prejudice. . See 40 C.F.R. § 1508.18(b)(4) (1987), Regulations of the Council on Environmental Quality, which includes projects "approved by permit" within the definition of "Major Federal Action.” . We agree with the district court that a decision not to modify, suspend or revoke a Section 404 permit is one committed to the Corps’ absolute discretion and, as such, it is not reviewable under the Administrative Procedures Act, 5 U.S. C. § 701(a)(1), (2). Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (decision not to enforce is generally committed to agency's absolute discretion and is presumptively unreviewable under APA); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (discretionary decisions unreviewable where statute so broad that in a given case there is no law to apply). In reaching this conclusion we find, as did the district court, that neither the Corps’ regulations nor the Clean Water Act mandáte issuance of a permit or the reevaluation of same. See Harmon Cove Condominium Ass’n, Inc. v. Marsh, 815 F.2d 949 (3rd Cir.1987) (§ 404 of CWA and 33 C.F.R. § 325.7 promulgated thereunder authorize discretionary Corps action). Cf. Dubois v. Thomas, 820 F.2d 943 (8th Cir.1987) (§ 505(a)(2) of CWA); Woodsmall v. Lyng, 816 F.2d 1241 (8th Cir.1987) (§ 501, et seq. of Housing Act of 1949); Hill v. Group Three Development Corp., 799 F.2d 385 (8th Cir.1986) (§ 8 of Housing Act of 1937).

Missouri Coalition for the Environment v. Corps of Engineers of the United States Army

FAGG, Circuit Judge, dissenting. I believe the dispute we are called on to decide in this case has become moot. The United States Army Corps of Engineers (the Corps) determined that altering the Riverport project plans to include a domed stadium did not require the Corps to change its earlier permit allowing St. Louis County to develop the project without an environmental impact statement. The court suggests the Corps’ decision “was concerned only with the potential environmental effects of a generic, domed stadium [and] * * * did not depend on the Cardinals or any other specific team inhabiting that stadium.” Ante at 1030. I disagree. The Corps’ Riverport permit decision was triggered by the presence and real commitment of the St. Louis Cardinals football team. With the relocation of the football Cardinals while this appeal was pending, and with no replacement football team on the horizon, the factual predicate for the Corps’ administrative decision no longer exists. Due to this change in the essential nature of the dispute that precipitated the Corps’ challenged action, I believe the appeal before us presents a purely abstract question and not a live case or controversy. I also disagree with the court’s assessment that the circumstances of this case fit within the exception to the mootness doctrine for controversies that are “ ‘ “capable of repetition, yet evad[e] review.” ’ ” Ante at 1029 (quoted citations omitted). I have no quarrel with the idea that this controversy may resurface in the years to come. Even so, I see nothing about the process for obtaining the Corps’ decision (one way or the other) on the environmental impact statement that makes the process so transient that its “short duration” will inherently escape judicial review. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). On the contrary, if the county attracts another professional football team to occupy a domed stadium within the original River-port project, there will be ample opportunity for the parties to seek review of an administrative decision that will then be based on current facts and circumstances. To allow review now on a theory that “a football team is a football team is a football team” in my view ignores the true character of this facet of the project as it was submitted to the Corps — that a professional football franchise was then ready and financially prepared to occupy the stadium under specific conditions. I am not willing at this point to presume those conditions had no effect on the Corps’ permit decision or that different variables some time from now likewise will have no impact on future Corps permit determinations. In sum, the football Cardinals are out of the Riverport project picture, and there is no understudy “anchor tenant” waiting in the wings. Obtaining a replacement team that is willing to commit itself to a domed stadium within the Riverport project is currently a matter of conjecture at best, see SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972). The key reason for considering a variance from the Corps’ original permit has disappeared. Consequently, the specific dispute that was put before the Corps by the supporters and opponents of a domed stadium is now moot. This being so, I would remand the case to the district court for an order directing the Corps to vacate its challenged permit decision. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329, 331, 82 S.Ct. 337, 340, 341, 7 L.Ed.2d 317 (1961); Hollister Ranch Owners’ Ass’n v. FERC, 759 F.2d 898, 901-02 (D.C.Cir.1985).

Bersani v. Robichaud

TIMBERS, Circuit Judge: Appellants John A. Bersani, the Pyramid Companies, Newport Galleria Group and Robert J. Congel (“Pyramid”, collectively) appeal from a judgment entered October 23, 1987 in the Northern District of New York, Thomas J. McAvoy, District Judge, granting summary judgment in favor of appellees, the United States Environmental Protection Agency (“EPA”), the United States Army Corps of Engineers (the “Corps”), Lee Thomas, the Administrator of the EPA, Richard K. Dawson, Assistant Secretary for Civil Works, United States Army, and Jennifer Joy Wilson, Assistant Administrator for External Affairs of the EPA (the “Federal Appellees” collectively), and denying Pyramid's motion for summary judgment. Bersani v. EPA, 674 F.Supp. 405 (N.D.N.Y. 1987). This case arises out of Pyramid’s attempt to build a shopping mall on certain wetlands in Massachusetts known as Sweedens Swamp. Acting under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1982), EPA vetoed the approval by the Corps of a permit to build the mall because EPA found that an alternative site had been available to Pyramid at the time it entered the market to search for a site for the mall. The alternative site was purchased later by another developer and arguably became unavailable by the time Pyramid applied for a permit to build the mall. On appeal, the thrust of Pyramid’s argument is a challenge to what it calls EPA’s “market entry” theory, i.e., the interpretation by EPA of the relevant regulation, which led EPA to consider the availability of alternative sites at the time Pyramid entered the market for a site, instead of at the time it applied for a permit. Pyramid argues principally (1) that the market entry approach is contrary to the regulatory language and past practice; and (2) that since the Corps, another agency which was jointly responsible with EPA for administering the program in question, interpreted the pertinent regulation in a different way than EPA had, and since the market entry issue does not involve environmental expertise, this Court should not defer to EPA’s interpretation of the regulation. Other subordinate claims are raised by appellants as well as by two intervenors and the ami-cus curiae. We hold (1) that the market entry theory is consistent with both the regulatory language and past practice; (2) that EPA’s interpretation, while not necessarily entitled to deference, is reasonable; and (3) that EPA’s application of the regulation is supported by the administrative record. We agree with the district court’s conclusion that EPA’s findings were not arbitrary and capricious. We also hold that Pyramid’s other arguments, and the arguments of one intervenor and the amicus, lack merit. We affirm. I. We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. A. Statutory and Regulatory Framework One of the sections of the Clean Water Act (the “Act”) relevant to the instant case is § 301(a), 33 U.S.C. § 1311(a) (1982), which prohibits the discharge of any pollutant, including dredged or fill materials, into the nation’s navigable waters, except in compliance with the Act’s provisions, including § 404. It is undisputed that Sweedens Swamp is a “navigable water”, as defined in 33 U.S.C. § 1362 (1982), and that Pyramid’s shopping center proposal will involve the discharge of dredged or fill materials. Section 404 of the Act, 33 U.S.C. § 1344 (1982 & Supp. Ill 1985), focusing on dredged or fill materials, provides that the United States Army and EPA will share responsibility for implementation of its provisions. EPA and the Corps also share responsibility for enforcing the Act. 33 U.S.C. §§ 1311 (1982), 1319 (1982), 1344(n) and (s) (1982). Section 404(a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill materials at particular sites. 33 U.S.C. § 1344(a) (1982). Section 404(b) provides that, subject to § 404(c), the Corps must base its decisions regarding permits on guidelines (the “404(b)(1) guidelines”) developed by EPA in conjunction with the Secretary of the Army. 33 U.S.C. § 1344(b) (Supp. Ill 1985). The 404(b)(1) guidelines, published at 40 C.F.R. Part 230 (1987), are regulations containing the requirements for issuing a permit for discharge of dredged or fill materials. 40 C.F.R. § 230.10(a) covers “non-water dependent activities” (i.e., activities that could be performed on non-wetland sites, such as building a mall) and provides essentially that the Corps must determine whether an alternative site is available that would cause less harm to the wetlands. Specifically, it provides that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative” to the proposal that would have a “less adverse impact” on the “aquatic ecosystem”. It also provides that a practicable alternative may include “an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity.” 40 C.F.R. 230.10(a)(2). It further provides that, “unless clearly demonstrated otherwise”, practicable alternatives are (1) “presumed to be available” and (2) “presumed to have less adverse impact on the aquatic ecosystem”. 40 C.F.R. 230.10(a)(3). Thus, an applicant such as Pyramid must rebut both of these presumptions in order to obtain a permit. Sections 230.10(c) and (d) require that the Corps not permit any discharge that would contribute to significant degradation of the nation’s wetlands and that any adverse impacts must be mitigated through practicable measures. In addition to following the 404(b)(1) guidelines, the Corps may conduct a “pub-lie interest review”. 33 C.F.R. § 320.4 (1987). This public interest review is not mandatory under § 404, unlike consideration of the 404(b) guidelines. In a public interest review, the Corps’ decision must reflect the “national concern” for protection and use of resources but must also consider the “needs and welfare of the people.” Id. Under § 404(c) of the Act, 33 U.S.C. § 1344(c), EPA has veto power over any decision of the Corps to issue a permit. It is this provision that is at the heart of the instant case. Specifically, § 404(c) provides that the Administrator of EPA may prohibit the specification of a disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of materials into such area will have an unacceptable adverse effect” on, among other things, wildlife. An “unacceptable adverse effect” is defined in 40 C.F.R. § 231.2(e) as an effect that is likely to result in, among other things, “significant loss of or damage to ... wildlife habitat”. The procedure under § 404(c) begins with the Regional Administrator (“RA”) who, under § 231.3(a), must notify the Corps and the applicant when it is possible he will find an “unacceptable adverse effect”. If within 15 days the applicant fails to satisfy the RA that no such effect will occur, the RA must publish his proposed determination to veto the grant of a permit. A period for public comment and an optional public hearing follows, after which the RA either withdraws the determination or submits a recommended determination to the national Administrator, whose decision to affirm, modify or rescind the RA’s recommendation is the final determination of EPA for purposes of judicial review. The burden of proving that the discharge will have an “unacceptable adverse effect” is on EPA. 45 Fed.Reg. 85,336, 85,338 (1980); 44 Fed. Reg. 58,076, 58,080 (1979). In short, both EPA and the Corps are responsible for administering the program for granting permits for discharges of pollutants into wetlands under § 404. The Corps has the authority to issue permits following the 404(b)(1) guidelines developed by it and EPA; EPA has the authority under § 404(c) to veto any permit granted by the Corps. The Corps processes about 11,000 permit applications each year. EPA has vetoed five decisions by the Corps to grant permits. B. Factual Background of the Sweedens Swamp Project Sweedens Swamp is a 49.5 acre wetland which is part of an 80 acre site near Interstate 95 in South Attleboro, Massachusetts. Although some illegal dumping and motorbike intrusions have occurred, these activities have been found to have had little impact on the site which remains a “high-quality red maple swamp” providing wildlife habitat and protecting the area from flooding and pollution. The effort to build a mall on Sweedens Swamp was initiated by Pyramid’s predecessor, the Edward J. DeBartolo Corporation (“DeBartolo”). DeBartolo purchased the Swamp some time before April 1982. At the time of this purchase an alternative site was available in North Attleboro (the “North Attleboro site”). Since Massachusetts requires state approval (in addition to federal approval) for projects that would fill wetlands, DeBartolo applied to the Massachusetts Department of Environmental Quality Engineering (“DEQE”) for permission to build on Sweedens Swamp. DEQE denied the application in April 1982. Pyramid took over the project in 1983 while the appeal of the DEQE denial was pending. In April 1983, Massachusetts adopted more rigorous standards for approval of permits. The new standards added wildlife habitat as a value of wetlands to be protected and required the absence of a “practicable alternative”. In March 1985, DEQE granted approval under the old, less stringent, regulations. The Massachusetts District Court reversed on the ground that DEQE should have applied the new regulations, but the Massachusetts Supreme Judicial Court ultimately upheld DEQE’s approval. Citizens for Responsible Environmental Management v. Attleboro Mall, Inc., 400 Mass. 658, 511 N.E.2d 562 (1987). One of the key issues in dispute in the instant case is just when did Pyramid begin searching for a suitable site for its mall. EPA asserts that Pyramid began to search in the Spring of 1983. Pyramid asserts that it began to search several months later, in September 1983. The difference is crucial because on July 1, 1983 — a date between the starting dates claimed by EPA and Pyramid — a competitor of Pyramid, the New England Development Co. (“NED”), purchased options to buy the North Attle-boro site. This site was located upland and could have served as a “practicable alternative” to Sweedens Swamp, if it had been “available” at the relevant time. Thus, if the relevant time to determine whether an alternative is “available” is the time the applicant is searching for a site (an issue that is hotly disputed), and if Pyramid began to search at a time before NED acquired options on the North Attleboro site, there definitely would have been a “practicable alternative” to Sweedens Swamp, and Pyramid’s application should have been denied. On the other hand, if Pyramid did not begin its search until after NED acquired options on the North Attleboro site, then the site arguably was not “available” and the permit should have been granted. Of course it also is possible that the North Attleboro site remained “available” after NED’s acquisition of the options, since Pyramid arguably could have purchased the options from NED. Moreover, since the North Attleboro site indisputably was “available” when Pyramid’s predecessor, DeBartolo, purchased Sweedens Swamp, one might argue, as EPA does, that Pyramid should be held to stand in its predecessor’s shoes. The district court apparently agreed with Pyramid on the issue of when Pyramid entered the market, stating that “Pyramid initially became interested in developing a shopping mall in the Attleboro area in September 1983”. Bersani v. EPA, supra, 674 F.Supp. at 409. In December 1983, Pyramid purchased Sweedens Swamp from DeBartolo. In August 1984, Pyramid applied under § 404(a) to the New England regional division of the Corps (the “NE Corps”) for a permit. It sought to fill or alter 32 of the 49.6 acres of the Swamp; to excavate nine acres of uplands to create artificial wetlands; and to alter 13.3 acres of existing wetlands to improve its environmental quality. Later Pyramid proposed to mitigate the adverse impact on the wetlands by creating 36 acres of replacement wetlands in an off-site gravel pit. During the review of Pyramid’s application by EPA, by the Fish and Wildlife Service (“FWS”) and by the Corps, Pyramid submitted information on “practicable alternatives”, especially the North Attleboro site. In rejecting that site as an alternative, Pyramid asserted that building a mall there was not feasible, not that the site was unavailable. In the words of the district court, Pyramid claimed that “the site lacked sufficient traffic volume and sufficient access from local roads, potential department store tenants had expressed strong doubts about the feasibility of the site and previous attempts to develop the site had met with strong resistance from the surrounding community.” Bersani, supra, 674 F.Supp. at 410 (emphasis added). In November 1984, EPA and FWS submitted official comments to the NE Corps recommending denial of the application because Pyramid’s proposal was inconsistent with the 404(b)(1) guidelines. Pyramid had failed (1) to overcome the presumption of the availability of alternatives and (2) to mitigate adequately the adverse impact on wildlife. EPA threatened a § 404(c) review. Pyramid then proposed to create additional artificial wetlands at a nearby upland site, a proposal it eventually abandoned. In January 1985, the NE Corps hired a consultant to investigate the feasibility of Sweedens Swamp and the North Attleboro site. The consultant reported that either site was feasible but that from a commercial standpoint only one mall could survive in the area. On February 19,1985, the NE Corps advised Pyramid that denial of its permit was imminent. On May 2, 1985, the NE Corps sent its recommendation to deny the permit to the national headquarters of the Corps. Although the NE Corps ordinarily makes the final decision on whether to grant a permit, see 33 C.F.R. § 325.8 (1982), in the instant case, because of widespread publicity, General John F. Wall, the Director of Civil Works at the national headquarters of the Corps, decided to review the NE Corps’ decision. Wall reached a different conclusion. He decided to grant the permit after finding that Pyramid’s offsite mitigation proposal would reduce the adverse impacts sufficiently to allow the “practicable alternative” test to be deemed satisfied. He stated: “In a proper case, mitigation measures can be said to reduce adverse impacts of a proposed activity to the point where there is no ‘easily identifiable difference in impact’ between the proposed activity (including mitigation) versus the alternatives to that activity.” Although he did not explicitly address the issue, Wall apparently assumed that the relevant time to determine whether there was a practicable alternative was the time of the application, not the time the applicant entered the market. In other words, Wall appears to have assumed that the market entry theory was not the correct approach. For example, while addressing the traditional “practicable alternatives” analysis as an alternative ground for his decision, Wall found that the North Attleboro site was unavailable “because it has been optioned by another developer”. Since the site was not optioned at the time EPA argues Pyramid entered the market, this language suggests (to Pyramid at least) that Wall could not have been employing the market entry approach. On May 31, 1985, Wall ordered the NE Corps to send Pyramid, EPA and FWS a notice of its intent to grant the permit. The NE Corps complied on June 28, 1985. On July 23, 1985, EPA’s RA initiated a § 404(c) review of the Corps’ decision. Following the procedure set forth in 40 C.F.R. Part 231 (discussed above), EPA published notice of its intent to prohibit the project in the Federal Register; held a public hearing on September 26, 1985; and permitted a period for public comment which closed on October 4, 1985. A second hearing was held on November 18, 1985. On March 4, 1986, the RA recommended that EPA veto the permit because of adverse impacts on wildlife and available “practicable alternatives”. In particular, the RA found that Pyramid had not overcome the presumption that an alternative existed, in part because Pyramid had failed to provide information on the availability of the North Attleboro site. After first refusing to provide the information, Pyramid later had claimed “there is no further or more detailed information. It simply does not exist.” The RA alternatively reasoned that the North Attleboro site had been available to DeBartolo, and that EPA should attribute this availability to Pyramid because Pyramid had benefitted from De-Bartolo’s application for state approval. On May 13, 1986, EPA issued its final determination, which prohibited Pyramid from using Sweedens Swamp. It found (1) that the filling of the Swamp would adversely affect wildlife; (2) that the North Attleboro site could have been available to Pyramid at the time Pyramid investigated the area to search for a site; (3) that considering Pyramid’s failure or unwillingness to provide further materials about its investigation of alternative sites, it was uncontested that, at best, Pyramid never checked the availability of the North Attleboro site as an alternative; (4) that the North Attle-boro site was feasible and would have a less adverse impact on the wetland environment; and (5) that the mitigation proposal did not make the project preferable to other alternatives because of scientific uncertainty of success. In the second of these findings, EPA used what Pyramid calls the “market entry” approach. On July 1,1986, Pyramid commenced the instant action in the district court to vacate EPA’s final determination as arbitrary and capricious. After the parties filed cross-motions for summary judgment, the newspapers reported that Pyramid intended to enter a joint venture with NED to build a mall at the North Attleboro site. Affidavits submitted concerning this development did not indicate whether Pyramid planned to continue the Sweedens Swamp project. Since the joint venture agreement was still in draft form, EPA did not take the position that the case was moot. On October 6, 1987, the court granted EPA’s motion for summary judgment. The court stated that, with regard to the market entry theory, EPA’s interpretation of its regulations was entitled to deference. This appeal followed. For the reasons which follow, we affirm. II. One of Pyramid’s principal contentions is that the market entry approach is inconsistent with both the language of the 404(b)(1) guidelines and the past practice of the Corps and EPA. A. With regard to the language of the regulations, Pyramid reasons that the 404(b)(1) guidelines are framed in the present tense, while the market entry approach focuses on the past by considering whether a practicable alternative was available at the time the applicant entered the market to search for a site. To support its argument that the 404(b)(1) guidelines are framed in the present tense, Pyramid quotes the following language: “An alternative is practicable if it is available_ If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.” 40 C.F.R. § 230.10(a)(2) (emphasis added). It then argues that EPA says “is” means “was”. It cites Gwaltney of Smithfield v. Chesapeake Bay Foundation, 108 S.Ct. 376, 381 (1987), to indicate that the Supreme Court believes that the “most natural” reading of present tense language in § 505(a) of the Act refers only to the present and future. While this argument has a certain surface appeal, we are persuaded that it is contrary to a common sense reading of the regulations; that it entails an overly literal and narrow interpretation of the language; and that it creates requirements not intended by Congress. First, while it is true that the language is in the present tense, it does not follow that the “most natural” reading of the regulations would create a time-of-application rule. As EPA points out, “the regulations do not indicate when it is to be determined whether an alternative ‘is’ available,” (emphasis in original), i.e., the “present” of the regulations might be the time the application is submitted; the time it is reviewed; or any number of other times. Based upon a reading of the language in the context of the controlling statute and the regulations as a whole, moreover, we conclude that when the agencies drafted the language in question they simply were not thinking of the specific issues raised by the instant case, in which an applicant had available alternatives at the time it was selecting its site but these alternatives had evaporated by the time it applied for a permit. We therefore agree with the district court that the regulations are essentially silent on the issue of timing and that it would be appropriate to consider the objectives of the Act and the intent underlying the promulgation of the regulations. Bersani, supra, 674 F.Supp. at 412. Second, as EPA has pointed out, the preamble to the 404(b)(1) guidelines states that the purpose of the “practicable alternatives” analysis is “to recognize the special value of wetlands and to avoid their unnecessary destruction, particularly where practicable alternatives were available in non-aquatic areas to achieve the basic purpose of the proposal.” 45 Fed. Reg. 85,338 (1980) (emphasis added). In other words, the purpose is to create an incentive for developers to avoid choosing wetlands when they could choose an alternative upland site. Pyramid’s reading of the regulations would thwart this purpose because it would remove the incentive for a developer to search for an alternative site at the time such an incentive is needed, i.e., at the time it is making the decision to select a particular site. If the practicable alternatives analysis were applied to the time of the application for a permit, the developer would have little incentive to search for alternatives, especially if it were confident that alternatives soon would disappear. Conversely, in a case in which alternatives were not available at the time the developer made its selection, but became available by the time of application, the developer’s application would be denied even though it could not have explored the alternative site at the time of its decision. Pyramid attacks this reasoning by arguing that few developers would take the risk that an available alternative site would become unavailable and that EPA’s reading improperly considers the motives and subjective state of mind of the applicant. These arguments are wide of the mark. Whether most real-life developers would take such a risk is irrelevant. The point is that Pyramid’s time-of-application theory is completely at odds with the expressed intent of the regulations to provide an incentive to avoid choosing wetlands. Similarly, EPA's interpretation does not require courts to investigate the subjective state of mind of a developer. EPA discusses state-of-mind issues only because it is discussing the purpose behind the regulations, which is concerned with incentives, and thus in fact is indirectly concerned with the developer’s state of mind. In short, we conclude that a commonsense reading of the statute can lead only to the use of the market entry approach used by EPA. B. With regard to the past practice of the Corps and EPA, Pyramid asserts that neither has ever applied a market entry approach. It first cites two previous final determinations of EPA, known as the “Final Determination of the Assistant Administrator for External Affairs Concerning the Jack Maybank Site on Jehossee Island, South Carolina Pursuant to Section 404(c) of the Clean Water Act,” April 5, 1985 (“Maybank Determination”), and the “Final Determination of the Administrator Concerning M.A. Norden Site Pursuant to Section 404(c) of the Clean Water Act,” June 15, 1984 (“Norden Determination”). On the basis of these determinations, Pyramid argues that, had EPA been using a market entry approach in these cases, it would have examined whether alternatives were available at earlier times and that EPA had failed to make such an examination. Pyramid also cites National Audubon Society v. Hartz Mountain Dev. Corp., 14 Envtl.L. Rep. 20724 (Envtl.L.Inst.) (D.N.J. Oct. 24, 1983), Friends of the Earth v. Hintz, 800 F.2d 822 (9 Cir.1986), and Hough v. Marsh, 557 F.Supp. 74 (D.Mass.1982), as examples of cases in which courts have upheld Corps decisions which had examined only those practicable alternatives that were available at the time of the permit review. Our examination of these prior decisions has satisfied us, however, that the issue raised in the instant case simply has not been addressed before. In National Audubon Society, the actual issue was whether the alternative site had to be available to the applicant or any developer. In Hintz, the court, while addressing other issues, simply approved a Corps decision in which only those alternatives available at the time of the review were considered. In Hough, the court invalidated a permit not because the Corps had considered past alternatives but rather because it assumed that such alternatives continued to exist during the entire selection process. Similarly, the Maybank Determination in fact addressed another issue. In the Norden Determination, where about 40 possible alternative sites were identified, of which seven were available at the time of application, EPA did not address the timing issue explicitly, because it was not required to — the presence of the seven currently available alternatives made it unnecessary to reach the issue. We believe that the issue essentially is one of first impression. We view EPA’s action in the instant case as an application of the regulatory language to the specific needs of this case which arose here for the first time. We therefore hold that EPA has not acted contrary to prior practice under the regulations. III. We turn next to the issue of whether EPA’s interpretation of the 404(b)(1) guidelines is entitled to the deference usually accorded an agency with regard to its interpretation of regulations it is charged with administering, see EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 83 (1980), and participated in formulating. See also United States v. Hescorp, Heavy Equip. Sales Corp., 801 F.2d 70, 76 (2 Cir.), cert. denied, 107 S.Ct. 672 (1986). The district court implied in its decision that it was according EPA such deference in examining its market entry approach. Pyramid contends that such deference was unwarranted because two agencies— EPA and the Corps — developed and administered the regulations, and the Corps reached a different conclusion from that of EPA on the market entry issue. It asserts that, contrary to EPA’s market entry approach, the “Corps’ position is that the availability should be determined as of the time an application is under review.” Pyramid points out that under § 404(b) the regulations are to be developed by EPA “in conjunction with” the Secretary of the Army (who acts through the Corps). It cites General Elec. Co. v. Gilbert, 429 U.S. 125, 144-45 (1976), for the proposition that a court must use its own judgment in construing a regulation when two agencies with responsibility for administering it reach divergent conclusions. It also contends that the Corps has greater experience with and expertise in assessing the “availability” of alternatives than EPA, because it is the Corps that makes the initial decision on thousands of applications while EPA reviews under § 404(c) only rarely. Furthermore, Pyramid claims that the availability analysis implicates zoning, economic and financial issues, not environmental ones. In response, EPA asserts that the Corps did not take a developed opposing policy position on the issue of what time is relevant in the “practicable alternatives” analysis. The reason for this is that the Corps, acting through General Wall, based its decision primarily on its finding that Pyramid’s mitigation proposal was workable. EPA also asserts, on the issue of its expertise, that its “selective and most infrequent invocation” of its veto power underscores EPA’s “seriousness” about using the veto. Finally EPA asserts that the Act’s legislative history indicates that Congress intended EPA to have the “final word” on any disputes with the Corps. While none of EPA’s assertions is entirely persuasive, there also are difficulties with Pyramid’s position. It is undeniable, for example, that Wall in fact did find that the North Attleboro site was “unavailable” and thus it appears that the Corps tacitly was applying a time-of-application test. On the other hand, it is possible that Wall believed that Pyramid did not enter the market until after NED had purchased the North Attleboro site. Accordingly, Wall may have found the alternative site “unavailable” under the market entry approach. Pyramid’s and EPA’s other arguments similarly cut both ways or are inconclusive. Even if we are not thoroughly persuaded that EPA’s interpretation was entitled to deference, however, we nevertheless conclude that the district court’s decision in its favor must be upheld. As Pyramid itself points out (to the detriment of its argument), the issue of deference is separate from the issue of the standards of review of the district court and of our Court. On appeal, we must subject the district court’s judgment to plenary review, Potenze v. New York Shipping Ass’n, 804 F.2d 235, 289 (2 Cir.1986), cert. denied, 107 S.Ct. 1955 (1987), and apply the same summary judgment test as applied by the district court. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass ’n, 809 F.2d 626, 630 (9 Cir.1987). An agency’s interpretation of its own regulations raises a question of law, White Indus. v. FAA, 692 F.2d 532, 534 (8 Cir.1982), and thus is freely reviewable by our Court. Pennzoil Co. v. FERC, 789 F.2d 1128, 1135 (5 Cir.1986). The standard of review for the district court in this case is that the court shall set aside EPA’s findings, conclusions or actions only if they are “arbitrary, capricious, ah abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2)(A) (1982). As stated by the Supreme Court in Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983), “[A] reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute.... 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.’ ” Id. at 42-43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Applying these standards, we are convinced that EPA’s market entry interpretation was reasonable, and therefore was neither “arbitrary and capricious” nor “not in accordance with law.” We therefore hold that the district court correctly found that EPA’s interpretation of the regulations was reasonable. IV. Finally, we turn to Pyramid’s subordinate claims, three of which warrant brief mention. Pyramid claims (1) that the market entry theory violates administrative law principles because it is not specific enough to put the public on notice of when it must consider alternative sites; (2) that EPA’s application of the market entry theory was unfair in this case; and (3) that the district court exceeded its authority in supplying a rationale for EPA’s decision which was not offered by EPA. As for the claim that the market entry approach is not specific enough, Pyramid reasons that any number of points in time could constitute “entry” into the market. It speculates whether market entry occurs “from the time the first internal memorandum is written,” or the time “the first consultant [is] hired,” or the time the “first negotiation for a site [is] conducted.” We are persuaded, however, that EPA is correct in asserting that it is unnecessary to pin down the standard to such a degree and that it would confuse things further to attempt to do so. Since the point of “entry” necessarily will vary from case to case, we believe the concept of “market entry” is the best method and is specific enough to put a developer on notice of when it should be considering alternative sites. With regard to the claim that EPA applied the market entry approach unfairly in the instant case, Pyramid asserts that the way EPA announced a “new” standard (the market entry rule) and then applied it “retroactively” in this case was fundamentally unfair. It also asserts that EPA’s failure to address evidence that the North Attleboro site was unavailable at the time of Pyramid’s market entry was unfair. According to Pyramid, such fundamental unfairness violates the principles underlying the Administrative Procedure Act. See Morton v. Ruiz, 415 U.S. 199, 232 (1974). As we held above, however, we view EPA’s interpretation of the rules as a reasonable application of the regulatory language to the unique facts of this case — a case in which it became necessary for the first time to reach the issue of when availability should be determined. EPA did not create and announce a “new” standard and apply it retroactively to Pyramid. Rather, EPA interpreted the law to apply it to the facts of this case. Moreover, we believe the extensive administrative record supports a finding that the North Attleboro site was available to Pyramid when it entered the market. Even if Pyramid were found not to have entered the market until September 1983, after NED had acquired options to purchase the North Attleboro site, it does not necessarily follow that the site was unavailable. Aside from the fact that NED did not acquire all the options for the North Attleboro site until June 1984, it also was possible for Pyramid to attempt to purchase the options from NED. The record shows no such attempts to purchase the site, or even to investigate its availability. Alternatively, even though the district court apparently was not persuaded by it, there also is evidence in the record to show that Pyramid actually entered the market in the Spring of 1983, before NED had purchased its options. Finally, the evidence shows that the North Attleboro site had been available to DeBartolo, Pyramid’s predecessor. EPA could reasonably have determined that Pyramid should be held to “stand in the shoes” of DeBartolo, especially since it was able to obtain state approval of the project under the less-stringent state standards that had originally applied to DeBartolo. Finally, Pyramid contends that the district court improperly supplied a rationale for EPA’s final determination that EPA itself did not articulate. It is true that the district court rejected one of EPA’s grounds for finding that Pyramid had failed to rebut the presumption that a practicable alternative was available. This ground was that the “trade custom” of developers was to investigate a potential development site for many months before purchasing it. EPA reasoned that, if Pyramid had purchased Sweedens Swamp in December 1983, it was unlikely, in view of the trade custom, that it had entered the market only eight weeks earlier — in September 1983 — as Pyramid claimed. The court accepted what it characterized as EPA’s finding that the North Attleboro site in any event was still available in September 1983, when even Pyramid admitted it had entered the market. Pyramid asserts that EPA did not make this finding and that the court improperly supplied a rationale for EPA’s determination that EPA did not articulate itself. This assertion fails, however, because EPA did make the finding. In its final determination it stated several reasons why it believed the North Attleboro site should be deemed to have been “available”. It stated, among other things, (1) that NED could “have been talked into relinquishing its interest” in the site even in September or December 1983; (2) that Pyramid never investigated the availability of the North Attleboro site because it believed it was too far from the highway; and (3) that Pyramid had refused to provide EPA with information on the time of its entry into the market, stating that such information “simply does not exist”. Thus, the trade custom ground to support the finding of availability was accompanied by several other grounds in the final determination. The district court therefore did not “supply” a rationale for EPA. Rather, EPA supplied several for itself. We affirm the district court’s decision in all respects. V. To summarize: We hold (1) that the market entry theory is consistent with both the regulatory language and past practice; (2) that EPA’s interpretation, while not necessarily entitled to deference, is reasonable and its application of its rule is supported by the record; and (3) that Pyramid’s other arguments lack merit. Affirmed. . The amicus curiae, the United States Chamber of Commerce ("Chamber of Commerce”) filed a brief in support of Pyramid's position. This brief raises two points also raised in Pyramid's brief, and one new point: that EPA exceeded its authority under § 404(c) by engaging in a de novo review of Pyramid's compliance with the regulation in question. The Citizens in Support of Attleboro Mall and Joseph Robichaud ("Citizens”, collectively) have intervened as plaintiffs/appellants and have submitted a brief raising two issues not covered by Pyramid in its brief: (1) whether EPA exceeded its authority under the relevant statute by considering the historical and cumulative effects of discharges on other wetlands, and (2) whether EPA arbitrarily rejected Pyramid's mitigation efforts. The Conservation Law Foundation ("CLF”) has intervened as a defendant/appellee and has submitted a brief raising six points, four of which are covered by the Federal Appellees in their brief. In the other two points, CLF: (1) answers the arguments of the Citizens and the Chamber of Commerce, asserting that EPA’s decision was wholly within its authority, and (2) asserts that in any event the appropriate remedy for any defects in EPA’s decision would be a remand. Upon reviewing each of these new points, we hold (1) that EPA’s decision was wholly within its authority, and (2) that EPA did not arbitrarily reject Pyramid’s efforts at mitigation but rather had ample basis to reject these efforts on the ground that they were not likely to succeed. In light of our holding with regard to the district court's decision, discussed in the body of our opinion, we need not reach the issue of whether remand would be the appropriate remedy for defects in EPA's actions. The other arguments of the two intervenors and the amicus will be dealt with in our discussion of the arguments of Pyramid and the Federal Appellees. . Section 230.10(a)(2) and (3) provide: "(a) Except as provided under section 404(b)(2) [pertaining to navigation] no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. (2) An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered. (3) Where the activity associated with a discharge which is proposed for a special aquatic site [defined in Subpart E to include wetlands] does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not "water dependent”), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. In addition, where a discharge is proposed for a special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.” . Section 404(c), 33 U.S.C. § 1344(c), authorizes the Administrator: "to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an. unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.”

Bersani v. Robichaud

GEORGE C. PRATT, Circuit Judge, dissenting: Finding that a “common-sense reading” of 33 U.S.C. § 1344(c) “can lead only to the use of the market entry approach”, the majority today holds that in determining whether an “alternative is available”, EPA is to look, not at the present circumstances and most current data, but rather at circumstances and data which existed, perhaps years earlier, when the developer “entered the market”. This market entry theory approaches a sensitive environmental problem through a time warp, it ignores the statute’s basic purpose, and it creates unfair and anomolous results. I therefore dissent. I. The Legislative History and Purpose of Section 1344- Section 1344 was enacted by congress in 1972 as part of a broad-based improvement to a national water policy that had been, as congress termed it, “inadequate in every vital aspect.” S.Rep. No. 414, 92 Cong., 2d Sess. 7 (1972). Specifically, the section was intended to address the delicate balance between those activities which endanger “marine environment [and] ecological systems” on the one hand, and those activities “essential for the maintenance of interstate and foreign commerce” on the other. Conf.Rep. No. 1236, 92nd Cong., 2d Sess. 43-44 (1972). Section 1344 is unusual: its primary purpose is neither to punish those who illegally infringe on national wetlands, nor, as the majority opines, “to provide an incentive [to developers] to avoid choosing wetlands”. To the contrary, the statute is directed at the land itself without any regard to whether the party seeking to develop it has clean hands. Thus, if the “biological integrity” of a specific wetland area outweighs the “interstate and foreign commerce” advantages that the site could provide, the site should remain undeveloped regardless of which developer is seeking the permit. See S.Rep. No. 414, 92nd Cong., 2d Sess. 7 (1972); Conf.Rep. No. 1236, 92nd Cong., 2d Sess. 43-44 (1972). Conversely, if the balance weighs in favor of commerce or other economic advantages, then the land should be developed, again regardless of the specific developer involved. Id. In short, congress designed the section to preserve the environment consistent with reasonable accommodation to the economic and social needs of the public; it was not concerned with the identities or past activities of particular developers. II. The Purpose of Section 1344 and the Market Entry Theory. In this case I have no problem with EPA’s basic approach. It conscientiously attempted to weigh the economic advantages against the ecological disadvantages of developing Sweedens Swamp and, in approaching this determination, it properly looked to alternate available sites. However, EPA went wrong — seriously wrong— when it adopted the market entry theory to decide whether an alternate site was available. By focusing on the decisionmaking techniques and tactics of a particular developer, instead of the actual alternatives to disturbing the wetland, EPA ignored the statute’s central purpose. The market entry theory in effect taints a particular developer with respect to a particular site, while ignoring the crucial question of whether the site itself should be preserved. Under the market entry theory, developer A would be denied a permit on a specific site because when he entered the market alternatives were available, but latecomer developer B, who entered the market after those alternatives had become unavailable, would be entitled to a permit for developing the same site. In such a case, the theory no longer protects the land, but instead becomes a distorted punitive device: it punishes developer A by denying him a permit, but grants developer B a permit for the same property — and the only difference between them is when they “entered the market”. The market entry theory has further problems. In this case, for example, if a Donald Trump had “entered the market” after NED took the option on the North Attleboro site and made it unavailable, under EPA’s approach he apparently would have been entitled to a permit to develop Sweedens Swamp. But after obtaining the permit and the land, could Trump then sell the package to Pyramid to develop? Or could he build the mall and then sell the developed site to Pyramid? If, on the one hand, the answer to these questions is “yes”, then the market entry theory is no more than a troublesome mirage that could easily be circumvented by Pyramid’s using a second party to buy the land and obtain the permit. If, on the other hand, the answer is “no”, then Pyramid is forever tainted, forever prohibited — somewhat like a bill of attainder — from owning this particular site, and only because at some time in the past it had “entered the market” while an alternative was still available. Furthermore, in a business that needs as much predictability as possible, the market entry theory will regrettably inject exquisite vagueness. When does a developer enter the market? When he first contemplates a development in the area? If so, in what area — the neighborhood, the village, the town, the state or the region? Does he enter the market when he first takes some affirmative action? If so, is that when he instructs his staff to research possible sites, when he commits money for more intensive study of those sites, when he contacts a real estate broker, when he first visits a site, or when he makes his first offer to purchase? Without answers to these questions a developer can never know whether to proceed through the expense of contracts, zoning proceedings, and EPA applications. Such a vague standard as “market entry” falls far short of the requirement that an agency articulate its standards with sufficient clarity so that the affected community may know what those standards are. See Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insurance Co., 463 U.S. 29, 48 (1983); Port Terminal Railroad Ass’n v. United States, 551 F.2d 1336, 1344-45 (5th Cir.1977). Even more important, the result reached by EPA and the majority is contrary to what congress sought to achieve when it passed § 1344. Pyramid has been “punished” for beginning its quest when the North Attleboro site was still available; but Sweedens Swamp nevertheless could be destroyed through an identical application by some other developer who happened to enter the market after that alternate site became unavailable. And this would be so even if another, better-suited site should become available after the second developer enters the market, because the “common sense” market entry theory looks only, and blindly, to the alternatives available at the time the applicant “entered the market”. III. The Proper Theory for Determining Whether an Alternate Site is Available. Since congress delegated to EPA the responsibility for striking a difficult and sensitive balance among economic and ecological concerns, EPA should do so only after considering the circumstances which exist, not when the developer first conceived of his idea, nor when he entered the market, nor even when he submitted his application; rather, EPA, like a court of equity, should have the full benefit of, and should be required to consider, the circumstances which exist at the time it makes its decision. This is the only method which would allow EPA to make a fully informed decision — as congress intended — based on whether, at the moment, there is available a site which can provide needed economic and social benefits to the public, without unnecessarily disturbing valuable wetlands. Such a “time of decision” theory is reinforced by the present-tense language of the regulation, which commands EPA to determine whether an alternate site “is available”. See Gwaltney of Smithfield v. Chesapeake Bay Foundation, 108 S.Ct. 376, 381 (1987) (present tense language in regulation means agency should apply that regulation to present, not past, circumstances). It is also supported by the express statements of congress when it passed the statute, and, I would submit, by true “common sense”. Any agency given the unenviable task of balancing essentially incomparable factors in determining what is in the public’s best interest, should look to the most up-to-date data, and evaluate the most current circumstances. Any other analysis would effectively tie the agency to an irrelevant date in the past, when the question to be decided is how to balance the environmental and commercial interests of the present and the future.

Environmental Coalition of Broward County, Inc. v. Myers

RONEY, Chief Judge: Plaintiff Environmental Coalition of Bro-ward County (the Coalition) appeals the refusal of the district court to enjoin work under a dredge and fill permit issued by the Corps of Engineers (the Corps) to the S.A. Horvitz Testamentary Trust (the Trust). We affirm. The district court considered the application process, the public interest factors, the plans to go forward with the dredging of the Dania Cut-off Canal, the propriety of requiring no Environmental Impact Statement, and the Corps’ consideration of practical alternatives to the applicant’s proposal. The district court found that with respect to all these issues, the Corps’ determination was well reasoned, fully documented, and completely justified. The district court found no need to go beyond the administrative record to reach these conclusions. Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir.1973). Such findings of fact made by the district court shall not be set aside unless clearly erroneous, unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985). REQUIRED SPECIFICATION OF APPLICATION The Coalition argues that the description of the activities and structures proposed for the fill, which was supplied to the Corps by the Trust, did not contain enough specificity to provide effective public notice or to permit adequate analysis of the environmental consequences by the concerned parties or agencies. The regulations, however, only require general descriptions of the proposed use. Regulations published under Section 404 of the Clean Water Act, 33 U.S.C.A. § 1344, require that, before a dredge and fill permit can be issued, the Corps must be provided with “a complete description of the proposed activity including necessary drawings, sketches or plans sufficient for public notice.” 33 C.F.R. 325.1(d). This public notice is primarily intended to advise all interested parties of the proposed activity for which a permit is sought and to make possible an evaluation of the probable impact on the public interest. The requirements of the public notice are not couched in terms of inordinate specificity, but need only convey “sufficient information to give a clear understanding of the nature and magnitude of the proposed activity to generate meaningful comment.” 33 C.F.R. 325.3(a). Blueprints of the entire layout are not required items of information. It is sufficient to include only a “brief description of the proposed activity, its purpose and intended use, ... including a description of the type of structures ... to be erected on fills.” 33 C.F.R. 325.-3(a)(5). Under other regulations, the Corps’ district engineer cannot issue a public notice where the application does not comply with the above regulations. He is required to review all applications for completeness, and can only issue a public notice when an application is found to be complete. 33 C.F.R. 325.2(a)(2); 33 C.F.R. 325.3. A decision made by an administrative agency under authority of this kind is due great deference. The district court was required to determine whether the Corps’ decision was reasonably supported by the information before it. This does not require that all of the data support the agency’s decision. It is enough that the Corps considered all relevant factors and that there is credible evidence in the record to support its action. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974). In its review, a court should give deference to the agency determination. This is particularly appropriate in the case of complex environmental statutes such as the Clean Water Act. EPA v. National Crushed Stone Association, 449 U.S. 64, 83-84, 101 S.Ct. 295, 306-07, 66 L.Ed.2d 268 (1980); see also, National Wildlife Federation v. Marsh, 721 F.2d 767, 780 (11th Cir.1983). A court should not substitute its own views for the decision reached by the agency. These principles of judicial review are particularly appropriate where the agency decision under review includes a “balancing” process like the “public interest” review provided for by the Corps’ regulations. 33 C.F.R. 320.-4(b). Under this standard of review, the Coalition’s assertion of insufficient specificity is not borne out by the record. The Trust filed a development plan describing its intended use for the property in question: The 221-acre tract north of the DCC [Dania Cut-off Canal] has not otherwise been master planned ... since 1980, but its intended use has been explained in general terms ... to complement and supplement the activities of the Port Everglades Authority in a manner consistent with its industrial zoning classification. It is therefore anticipated that the property will be developed for marine industrial and commercial activities, such as Port-related support facilities and services, ... some degree of container cargo or warehousing ... along with some trucking/distribution activities. These projections are simply educated guesses or examples of specific uses that are representative of the more generic marine industrial/commercial classification given this project. Clearly, market demand and market conditions will have a major impact on the ultimate land uses, and these variables cannot be evaluated at this point. Adjacent uses and structures provided sources of reference and information concerning environmental consequences resulting from the type of activity and proposed use under this description. The Coalition has at no time demonstrated how the Corps’ consideration of the Trust’s permit application was impeded by failure to include additional information. The district court cannot be faulted in deciding that the description provided, along with the comparison to other developments within the immediate area, was sufficient to justify the determination reached by the Corps of Engineers. THE DANIA CUT-OFF CANAL The modified Section 404 permit authorizes the Trust to use material from the Intracoastal Waterway as fill. The Coalition argues that the Corps should have “deauthorized” the dredging of the Dania Cut-Off Canal, because fill from that area would no longer be needed. The argument is premised upon the assertion that the dredging of the Dania Cut-off Canal no longer served the project purpose, because the use of the dredged materials were not needed for fill. In its findings, however, the Corps stated that the dredging of the Dania Cut-off Canal, in addition to providing fill, “would also improve the navigability of the waterway for commercial traffic.” Indeed, the Corps concluded that if the Canal were not dredged, “water access to the filled property would remain impaired which could affect navigation safety, [and as] waterbourne traffic increases in the DCC despite the impaired access, there would be a nonquantifiable increased potential for boat/barge related manatee mortality.” Therefore, the district court did not err in refusing to interfere with the dredging of the Dania Cut-off Canal. THE ENDANGERED SPECIES ACT The Coalition claims that the Corps’ dredge and fill permit violated the Endangered Species Act because the Corps cannot ensure that its action will not be likely to jeopardize the endangered manatee. 16 U.S.C.A. § 1531-43 (Endangered Species Act). Agency action under the Endangered Species Act must be upheld, unless it is found to be arbitrary and capricious according to the Administrative Procedure Act. 5 U.S.C.A. § 706(2)(A); Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982). Under 16 U.S.C.A. § 1536(a)(2), each federal agency is obligated to ensure 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 by the Secretary ... to be critical.” As part of that obligation, an agency that identifies programs or activities that may affect a listed species is required to consult the Fish & Wildlife Service for a biological opinion. 50 C.F.R. 402.04. The district court found that the Corps had consulted with the Fish & Wildlife Service in accordance with 16 U.S.C.A. § 1536(a). The Fish & Wildlife Service’s biological opinion stated that the project would not jeopardize any endangered species in the area. The Corps imposed eight additional conditions on the permit to minimize any possible injury to the manatee. The district court correctly concluded the Corps did everything required by the Fish and Wildlife Coordination Act. 16 U.S.C.A. § 661 et seq. AFFIRMED.

Environmental Coalition of Broward County, Inc. v. Myers

TUTTLE, Senior Circuit Judge, dissenting: With deference, I dissent. I agree that we should not substitute our judgment for the Corps of Engineers in making its final decision on the grant of the permit. I disagree completely, however, with the majority’s decision that the Application for the permit contains sufficient information from which either the public, who are entitled to notice, or the Corps of Engineers, could reasonably be expected to weigh the benefits against the disadvantages of the proposed fill. Obviously, the advantages and disadvantages cannot be weighed, one against the other, unless the use to which the filled land is to be put is explained in sufficient detail so that the public and the Corps can know what they are balancing against the loss of the wetlands. Here, the application was totally lacking in the information necessary for anyone to measure the advantages against the disadvantages of allowing the fill. As stated in the majority opinion, Section 404 of the Clean Water Act, 33 U.S.C.A. § 1344 and the regulations issued thereunder require that, before a dredge and fill permit can be issued, the Corps must be provided with “a complete description of the proposed activity including necessary drawings, sketches or plans sufficient for public notice.” (The emphasis throughout is added.) 33 C.F.R. § 335.1(d). The majority opinion further correctly, I think, states: “This public notice is primarily intended to advise all interested parties of the proposed activity for which a permit is sought and to make possible an evaluation of the probable impact on the public interest.” That means, of course, that the public notice is intended to let everyone who is entitled to have the information know what benefits are to be achieved from the actual intended use in order to weigh those benefits against the loss to the environment resulting from filling the heretofore wetlands. Now, what information does the application here give to meet this requirement? To begin with, it is to be noted from the development plan quoted in the majority opinion that such a plan was merely “educated guesses or examples of specific uses that are representative of the more generic marine industrial-commercial classification given this project.” Then, the educated guesses are: In general terms ... to complement and supplement the activities of the Port Everglades Authority in a manner consistent with its industrial zoning classification. It is therefore anticipated that the property will be developed for marine industrial and commercial activities, such as port-related support facilities and services____ Some degree of container cargo or warehousing ... along with some trucking-distribution activities. The plan then states: “Clearly, market demand and market conditions will have a major impact on the ultimate land uses, and these variables cannot be evaluated at this point.” It is clear to my mind that no one, whoever he or she might be, could weigh the advantages against the disadvantages of the fill on these lands from the uses suggested, to which, even as general as they were, the owner made no actual commitment. Even if the so-called “public” or the Corps of Engineers officials were prescient or even omniscient, they still could not properly weigh the one against the other because the applicants themselves did not know what the future use of the property would be. In the absence of a sufficient application, of course, the whole process fails. I would therefore reverse the judgment of the trial court dismissing the complaint and denying the injunction. . Compare these general terms with the requirement of "a complete description."

United States v. Cumberland Farms of Connecticut, Inc.

LEVIN H. CAMPBELL, Chief Judge. This is an appeal by Cumberland Farms of Connecticut, Inc. (“Cumberland”) from a judgment of the United States District Court for the District of Massachusetts. The district court ruled that from 1977 to 1985 Cumberland had violated sections 301 and 502 of the Federal Water Pollution Control Act (the “Clean Water Act”), 33 U.S.C. §§ 1311, 1362 (1982), by dredging and filling a freshwater wetland without the required permit from the Army Corps of Engineers (“Corps”). Clean Water Act, section 404, 33 U.S.C. § 1344 (1982). The court ordered injunctive relief directing Cumberland to restore the wetland to approximately its 1977 condition. The court also imposed a civil fine of $540,000, of which $390,000 was to be remitted to Cumberland if it satisfactorily restored the wetland as ordered in the injunction. Cumberland raises numerous issues on appeal. I. BACKGROUND The area in contention consists of about 2,000 acres of the Great Cedar Swamp located in southeastern Massachusetts. Pri- or to Cumberland’s activities, the Great Cedar Swamp was a forested freshwater swamp. It was then one of the largest freshwater wetlands in Massachusetts. Freshwater wetlands are ecologically valuable for various reasons. They act as a natural flood control mechanism by slowing and storing storm water runoff. They help supply fresh water to recharge groundwater supplies. They serve as biological filters by purifying water as it flows through the wetlands. They provide seasonal and year-round habitat for both terrestrial and aquatic wildlife. See 33 C.F.R. § 320.4(b) (1986). In 1972, V.S. Hasiotis, Inc., purchased the 2,000-acre wetland, leasing it to Cumberland Farms of Connecticut, Inc. (a related corporation owned by essentially the same shareholders as Hasiotis, Inc.). Beginning in 1972 and continuing through 1985, Cumberland began converting the swamp into farmland using dredge and fill techniques. Cumberland removed the standing timber, bulldozed the stumps and roots and levelled the soil in preparation for planting. To lower the water table so as to make the wet soil arable, Cumberland dug a network of drainage ditches and channelized two streams (the Raven Brook located on the eastern side of the swamp, and the Bartlett Brook to the west). In recent times the Army Corps of Engineers has been regulating the dredging and filling of freshwater wetlands, relying for its authority on sections 301 and 502 of the Clean Water Act, 33 U.S.C. §§ 1311 & 1362. These provisions prohibit the discharge of dredged or fill material into “navigable waters” unless authorized by a permit issued by the Corps pursuant to section 404, 33 U.S.C. § 1344. When these provisions were enacted in 1972, the Corps at first construed the term “navigable waters,” 33 U.S.C. § 1362(12), literally. Thus from 1972 until 1975, a Corps permit was required under section 404 of the Clean Water Act only if dredge and fill operations took place in waters that were actually navigable. In 1975, the Corps revised its regulations so that the term “navigable waters” came to include, inter alia, freshwater wetlands that were periodically inundated and which supported vegetation that requires saturated soil conditions. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985); 33 C.F.R. § 209.120(d)(2)(h) (1976). In 1977, the Corps further extended its jurisdiction over wetlands by eliminating the requirement that the wetland be periodically inundated, requiring only that it be inundated or saturated by surface or groundwater at a sufficient frequency to support vegetation adapted for life in saturated soils. Id. at 458; 33 C.F.R. § 323.2(c) (1978). In Riverside Bayview Homes, the Supreme Court upheld the Corps’ expanded view of its regulatory authority over freshwater wetlands under the Clean Water Act. Id. at 465. In conjunction with its program of regulating dredge and fill activities, the Corps established a number of so-called “nationwide permits.” These allow certain categories of activities to be carried on without first obtaining an individual permit. At issue in this case is whether Cumberland’s dredge and fill activities were validated by one or another of two nationwide permits. The practical effect of the Corps’ expanding jurisdiction under the Clean Water Act was that, beginning in July 1977, the wetlands in question came under the Corps’ regulatory power. Thereafter, Cumberland’s dredge and fill activities required an individual permit from the Corps pursuant to section 404, 33 U.S.C. § 1344, unless, as discussed infra, Cumberland qualified under a statutory exception to the permit requirement or for a general nationwide permit. Cumberland did not, however, apply for an individual permit in 1977 or thereafter, but continued to dredge and fill in the Great Cedar Swamp. The district court found that from 1978 to 1985 Cumberland converted 674.4 acres of wetland to farmland through the use of dredge and fill. 647 F.Supp. at 1171. In April 1983, a private individual first alerted the Corps to Cumberland’s activities. The Corps then sent a letter to John Peck, Vice President of Operations for Cumberland, noting that discharges of dredge and fill material were apparently being made into waters under the Corps' jurisdiction without the required permit. The letter stated that no additional work should be performed in the area subject to the Corps’ jurisdiction unless and until Cumberland obtained a permit. The letter asked for some additional information and recommended that exposed stream banks along the Bartlett and Raven Brooks be stabilized. In addition, the Corps set out eight interim protective measures that Cumberland should institute in order to restore the water table to its 1977 level, including filling various drainage ditches that Cumberland had installed. In May 1983, Cumberland responded by asserting that its activities fell within the statutory exemption for agricultural work, 33 U.S.C. § 1344(f)(1), and that in Cumberland’s view no permit was needed. In June 1983, prior to any further Corps activity, Cumberland instituted an action against the Corps in federal district court seeking a declaratory judgment that its activities were permitted by the statutory agricultural exemption. Cumberland argued that the Corps’ letter had been a final determination by the agency of its jurisdiction, and that this determination presented a judicially reviewable issue. Because the Corps allegedly had no power to regulate Cumberland’s activities in the Great Cedar Swamp, Cumberland argued that it should not be required to apply for a permit or otherwise go through the administrative process. The district court dismissed Cumberland’s action, agreeing with the Corps that, as of yet, the Corps had only made an initial determination of jurisdiction and that this initial determination did not permit judicial review. The court held that to allow the declaratory judgment action to proceed would improperly and prematurely interrupt the Corps’ administrative process. The court made it clear that its dismissal of the action would not preclude Cumberland from raising the jurisdictional issue after the Corps had completed its administrative process. In December 1984, the Corps unequivocally asserted jurisdiction in a letter to Cumberland. The Corps pointed out alleged violations of the Clean Water Act, ordered that Cumberland cease its illegal activity and demanded that eight interim protective measures be undertaken. These interim protective measures were designed to restore the area to its 1977 freshwater wetland condition. Cumberland objected to the interim protective measures because they would have inundated Cumberland’s farm fields. Cumberland refused to implement the protective measures unless and until “some higher authority” determined that to be an appropriate result. For the first time, Cumberland formally applied for an individual permit, but the Corps took the position that under its regulations it could not consider issuance of a retroactive permit until the area had been restored to its 1977 condition under the mandated interim protective measures. 33 C.F.R. § 326.3(c) (1986). The Corps then brought this enforcement action. The district court held a bifurcated trial with a liability phase and a remedies phase. As to liability, the court found that Cumberland had violated the Clean Water Act by discharging into waters of the United States without a Corps permit. 647 F.Supp. at 1174-75. The court held that Cumberland’s activities did not fall within the statutory exemption for agricultural activities, ruling that the exemption applies only to prior established and continuing farming, id. at 1175, whereas Cumberland’s activities constituted a new conversion of wetland to agriculture. Cumberland does not appeal from this ruling. The district court also rejected Cumberland’s claim that it qualified for either the “headwaters” nationwide permit, 647 F.Supp. at 1177-78, or the “unasserted jurisdiction” nationwide permit, id. at 1178-80. Cumberland appeals from these rulings, arguing that both nationwide permits applied to its activities, relieving it from any need to obtain an individual permit. After finding Cumberland liable for violating the Clean Water Act, the court held a second trial, this time to consider a monetary penalty and an injunction ordering Cumberland to restore the property to its former state. The court concluded that it would not assess a fine for the period from 1977 to December 1984. It found the language in the regulation relating to the “unasserted jurisdiction” nationwide permit so opaque as to vitiate any legal culpability on the part of Cumberland during these years. 647 F.Supp. at 1184. After December 1984 (when the Corps unambiguously asserted jurisdiction), the court believed that Cumberland could not have misunderstood that the nationwide “unasserted jurisdiction” permit did not cover its activities. The court found that from December 1984 through March 1985, despite the clearly asserted jurisdiction by the Corps, Cumberland continued its further destruction of the Great Cedar Swamp, in direct violation of the Corps’ cease and desist order. The court found that this continued intentional violation of the Clean Water Act warranted a civil monetary penalty. 647 F.Supp. at 1185. The court also considered the Corps’ request for an injunction ordering that the wetland be restored to approximately its 1977 condition. The Corps’ proposed plan called for a process of restoration with four major components. The water level of the Great Cedar Swamp was to be restored to its 1977 level by filling in certain ditches, and by erecting a series of check dams. The plan proposed that bulldozers be used to create a series of hummocks and hollows so as to best replicate the natural surface topography of a swamp. The plan proposed that narrow strips of vegetation from the nearby existing swamp area be plowed up and moved to the restoration area. These strips of surface vegetation would be spread over the restoration area so as to provide a plant and seed source to regenerate a great variety of swamp species. The plan also proposed that an earthen dam and ditch be constructed along the edge of the restoration area to protect Cumberland’s cornfields that were established prior to 1977. The court generally accepted the Corps’ restoration plan, finding that it would confer maximum environmental benefits, 647 F.Supp. at 1181-82, that the plan was practical and would achieve the desired result of restoring the wetland to approximately its 1977 condition, id. at 1182-83, and that the restoration bore an equitable relationship to the degree and kind of wrong which it was intended to remedy, id. at 1183. The court modified the Corps’ proposed restorative plan to the extent of altering the location of the cheek dams in order to protect nearby cranberry bogs and to better protect Cumberland’s cornfields that were to remain. On appeal Cumberland challenges the restoration order, arguing that it is impractical and speculative. Cumberland further argues that the district court should not have ordered restoration of the swamp but rather should have remanded to the Corps so that Cumberland could apply for an after-the-fact individual permit. II. NATIONWIDE PERMITS Cumberland contends that the district court erred in deciding that Cumberland’s activities in the Great Cedar Swamp were not authorized under either of two nationwide permits. A. The Headwaters Nationwide Permit Cumberland argues that it qualified under the “headwaters” nationwide permit. That permit, codified in 1977 at 33 C.F.R. Part 323, provides, (a) Discharges of dredged or fill material into the following waters of the United States are hereby permitted for purposes of Section 404, provided the conditions in paragraph (b) below are met: (1) Non-tidal rivers, streams and their impoundments including adjacent wetlands that are located above the headwaters; (b) For the purposes of Section 404, the following conditions must be satisfied for any discharge of dredged or fill material in waters described in paragraph (a) above: (3) That the fill created by the discharge will be properly maintained to prevent erosion and other non-point sources of pollution____ The term “headwaters” is defined as the point on a non-tidal stream above which the average annual flow is less than 5 cubic feet per second. The District Engineer may estimate this point from available data using the mean annual area precipitation, area drainage basin maps, and the average runoff coefficient, or by similar means. 33 C.F.R. § 323.2(i) (1977). Thus, so long as specified conditions are met, the headwaters permit authorizes discharges in areas within and adjacent to streams which flow at a rate of less than five cubic feet per second. In determining that the headwaters permit did not apply to Cumberland’s activities, the court below found that the rate of flow of the two streams on Cumberland’s property was greater than five cubic feet per second. In support of this finding are maps showing that, as early as 1974 or 1975, two streams traversed the length of the property, and evidence that, at the point where each stream left Cumberland’s property, the rate of flow exceeded five cubic feet per second (5.6 cubic feet per second on the Raven Brook, and 5.4 cubic feet per second on the Bartlett Brook). Cumberland asserts that at some point on its property the rate of flow for each stream drops below the five cubic feet per second threshold. However, the district court held that Cumberland never met its burden of proof on this point. Cumberland contends that in cross-examining the Corps’ expert, Mr. Manley, it mathematically established how much of its property should be covered by the headwaters permit. But the district court was not persuaded that, without further measurements or expert testimony, this evidence enabled it to pinpoint the location where each stream’s flow rate dropped below five cubic feet per second. Manley’s own testimony suggested that simple mathematics alone was insufficient to fix that point. He testified that to do so would require study of the topography maps to determine drainage patterns. Since Cumberland is seeking to qualify under this exception to the individual permit requirement, it had the burden of persuading the court of the applicability of the headwaters permit. See Riverside Irrigation District v. Andrews, 758 F.2d 508, 514 (10th Cir.1985) (one seeking to qualify under nationwide permit must show that conditions for permit exist). Cumberland did not present any expert testimony to assist the court in applying the mathematical formula, to locate on a map the point where each stream fell below the threshold flow level, and to delineate what wetlands adjacent to that point were covered by the headwaters permit. Cumberland had no right to expect that the unassisted court would or could complete the mathematics, study the drainage patterns, and then apply the formula to a map so as to establish the location of the headwaters and the appropriate adjacent wetlands. The court, moreover, provided an alternative ground for its determination that the headwaters permit did not apply. It found that Cumberland had not complied with the condition of the headwaters permit that the "fill created by the discharge be properly maintained to prevent erosion and other non-point sources of pollution.” 33 C.F.R. § 323.4-2(b)(3) (1977) (emphasis added). It is clear, and the Court so finds, that the drainage ditches erected, despite Cumberland’s best efforts, are not so fixed in their banks as to prevent a significant amount of silty erosion from entering the waters discharged. 647 F.Supp. at 1178. Cumberland urges us to construe the Corps’ regulation to include only erosion shown to have an adverse or harmful effect on downstream waters. However, when the Corps promulgated the nationwide permit, it said nothing about requiring a showing of a specific adverse or harmful effect from the erosion. See 42 Fed.Reg. 37,131, col. 2 (July 19, 1977). Here the court found a “significant” amount of erosion, a finding that does not allow us to treat the erosion as de minim-is. Under Cumberland’s view, it should be free to cause erosion so long as the Corps is unable to trace a downstream effect back to Cumberland as the single property of origin. But this view ignores the possible cumulative harmful effects of erosion from various different properties and sources. Even were erosion from a particular project to be relatively “minor,” its combined effect might be deleterious. Moreover, it might be hard to establish its overall contribution to the total harm. Since the headwaters permit is, in effect, an exception to the statutory requirement of an individual permit, we believe the Corps’ own, more narrow, interpretation of its regulatory exception should prevail. See United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir.) (upholding narrow interpretation of statutory agricultural exemption from permit requirement), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985). B. The Unasserted Jurisdiction Permit Cumberland contends that another nationwide permit — the “unasserted jurisdiction” permit — validated its activities. The district court held that the unasserted jurisdiction permit does not apply to dredge and fill activities regulated under the Clean Water Act, but rather applies only to activities regulated under the River and Harbor Act. 647 F.Supp. at 1180. Since Cumberland was prosecuted for violating the Clean Water Act, the court found Cumberland’s reliance upon the unasserted jurisdiction permit unavailing. While finding this permit did not apply, the court was troubled that the Corps’ 1982 regulations pertaining to the permit were ambiguous — so much so, indeed, that an ordinary person might then have believed, in the court’s view, that this nationwide permit did validate dredge and fill under the Clean Water Act. Because of the 1982 ambiguity, the district court declined to impose any civil fine for the entire period 1977 through 1984. 647 F.Supp. at 1184. The district court relied on case law invalidating penal sanctions under excessively vague enactments. Id. Cumberland argues on appeal that the vagueness of the 1982 regulation should, as well, relieve it from any equitable duty to restore the 2,000-acre property to its 1977 state. To understand this argument — which we find meritless — it is necessary to examine the relevant statutes and regulations in some detail. Under section 10 of the River and Harbor Act, 33 U.S.C. § 403, the Corps has traditionally protected navigation by regulating the building of structures (piers, docks, etc.) within navigable waters as well as dredge and fill activities in such waters. Any proposed project which would interfere with navigation has required a Corps River and Harbor Act permit. See 33 U.S.C. § 403 (creation of any obstruction in navigable waters unlawful absent authorization by Corps). Starting in 1968, the Corps began to use its authority under the River and Harbor Act to regulate activities within navigable waters which, while not necessarily obstructing navigation, would cause pollution. See generally Zabel v. Tabb, 430 F.2d 199 (5th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Yet while the Corps expanded its use of the River and Harbor Act so as to cover activities causing pollution (as well as those obstructing navigation), it did not (as with the Clean Water Act) claim a right to regulate in waters that were not tidal or navigable in fact. See 33 C.F.R. § 322.2(a). Thus today, the Corps administers a dual permit system under two different statutes — the River and Harbor Act and the Clean Water Act — to regulate dredge and fill activities that cause pollution in navigable waters; but in so doing it construes the term “navigable waters” differently. Under section 10 of the River and Harbor Act it construes the term to embrace dredge and fill activities within actually navigable waters, while under section 404 of the Clean Water Act it construes the term so as to regulate dredge and fill in waters that are not only navigable in fact, but may include freshwater wetlands. In 1977, the Corps’ regulations under the River and Harbor Act exempted from the individual permit requirement, “Structures or work completed before 18 December 1968 or in waterbodies over which the District Engineer has not asserted jurisdiction provided there is no interference with navigation.” 33 C.F.R. § 322.4(g) (1977) (emphasis added). It is this so-called “unasserted jurisdiction” nationwide permit which Cumberland argues obviated any need for it to have obtained in 1977 and thereafter an individual permit under the Clean Water Act. Cumberland’s argument rests on a poorly worded recodification of the unasserted jurisdiction nationwide permit that the Corps issued in 1982. This version could be read to imply that the nationwide permit applied to activities regulated under both section 10 of the River and Harbor Act and under section 404 of the Clean Water Act. The ambiguous version was in effect only briefly as respects Cumberland, and there is no evidence that anyone from Cumberland ever saw or relied on it, but Cumberland argues that the standard is how it would appear to “men of common intelligence” who had read it. 647 F.Supp. at 1184 (citing Connally v. General Con struction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). The most obvious weakness in Cumberland’s argument is that when, in 1977, its dredge and fill activities first came under the jurisdiction of the Clean Water Act, the Corps’ regulations were entirely clear that the unasserted jurisdiction permit applied only to activities regulated under section 10 of the River and Harbor Act. Regulations governing the Clean Water Act were codified at 33 C.F.R. Part 323. In contrast, the regulations governing the Corps permit program under section 10 of the River and Harbor Act were codified at 33 C.F.R. Part 322. In an introductory section, the Corps explained that the regulations under part 322 applied only to section 10 of the River and Harbor Act, noting, however, that certain activities might be governed by more than one statutory or regulatory scheme. This regulation prescribes, in addition to the general policies of 33 C.F.R. 320.4 and procedures of 33 C.F.R. Part 325 those special policies, practices and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of Army permits to authorize structures or work in or affecting navigable waters of the United States pursuant to section 10 of the River and Harbor Act of 1899 (33 U.S.C. 403) (hereinafter referred to as section 10). See 33 C.F.R. 320.2(b). Certain structures or work in or affecting navigable waters of the United States are also regulated under other authorities of the Department of the Army. These include discharges of dredged or fill material into waters of the United States, including the territorial seas, pursuant to section 404 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1344; see 33 C.F.R. Part 323) and ... [listing other statutory Corps authorities not relevant to this issue]. A Department of the Army permit will also be required under these addn tional authorities if they are applicable to structures or work in or affecting navigable waters of the United States. Applicants for Department of the Army permits under this part should refer to the other cited authorities and implementing regulations for these additional permit requirements to determine whether they also are applicable to their proposed activities. 33 C.F.R. § 322.1 (1977). The Corps thus made it clear in 1977 and thereafter (until 1982), that the regulations under part 322 applied only to activities regulated under section 10 of the River and Harbor Act, and that applicants should refer to other sections of the regulations, i.e., part 323 which governs the Clean Water Act, to determine whether their proposed activities were regulated under other statutory authorities. In these 1977 regulations, the unasserted jurisdiction permit appeared only in part 322, see 33 C.F.R. § 322.4(g) (1977), which governed only section 10 of the River and Harbor Act. No unasserted jurisdiction permit appeared in part 323 which governed the permit program under the Clean Water Act. Hence in 1977, when Cumberland first should have applied for a Corps permit pursuant to section 404 of the Clean Water Act, the unasserted jurisdiction nationwide permit plainly did not apply to Cumberland’s activities since that nationwide permit clearly only applied to activities regulated under the River and Harbor Act. In 1982, the Corps published interim regulations applicable to the permit programs under both the River and Harbor Act and the Clean Water Act. The revised regulations contained a new subsection, part 330, which codified all the previously promulgated nationwide permits under either statute, as well as some newly proposed permits. The unasserted jurisdiction permit was moved to part 330. See 33 C.F.R. § 330.3(b) (1982). An introduction to part 330 stated The nationwide permits are issued to satisfy the requirements of both § 10 of the River and Harbor Act of 1899 and § 404 of the Clean Water Act unless otherwise stated. 33 C.F.R. § 330.1 (emphasis added). The unasserted jurisdiction permit, as recodified at 33 C.F.R. § 330.3 (1982), stated, The following activities are permitted' by a nationwide permit which was issued on 19 July 1977 and need not be further permitted: (b) structures or work completed before 18 December 1968 or in waterbodies over which the District Engineer was not asserting jurisdiction at the time the activities occurred provided, in both instances, there is no interference with navigation. Thus the recodification of this permit did not expressly state that it applied only to section 10 of the River and Harbor Act. The omission of such a statement leads to Cumberland’s present argument that, given the introductory section set out above, the permit applied to activities regulated under both statutes, since the recodified permit does not state otherwise. The Corps replies that the unasserted jurisdiction permit was simply moved to the new part 330, without any intention that substantive changes be made, and that the permit continued to apply only to section 10 of the River and Harbor Act. In support of its position, the Corps points to language published in the Federal Register when these revised rules were first proposed. See 45 Fed.Reg. 62,732 (Sept. 19, 1980). In the preamble to the proposed rules, the Corps stated that it would discuss each of its proposed changes that were significant, but that it would not discuss minor changes such as clarifications, new references or rearrangements. Id. The preamble went on to discuss every newly proposed nationwide permit. Also, whenever the scope of an existing nationwide permit was being expanded, the preamble discussed the extent of the expanded permit. For example, the preamble discussed an existing nationwide permit for bank stabilization work which originally applied only section 404 of the Clean Water Act. The preamble explained that the permit was being expanded to cover section 10 River and Harbor Act activities as well. See 45 Fed.Reg. 62,735, col. 3 (Sept. 19, 1980). Significantly, the discussion of permits that were being expanded never mentions the unasserted jurisdiction permit. Broadening the applicability of the unasserted jurisdiction permit to include a different statute was a major change. Had the Corps intended such a change, it is only reasonable to suppose that it would have discussed it, as it did in the case of the bank stabilization permit. We have little difficulty agreeing with the Corps, therefore, that it did not intend to extend coverage of the existing unasserted jurisdiction permit beyond the River and Harbor Act. Nonetheless, the lower court was undoubtedly right that the 1982 regulations was unclear on this score. In November 1986, after the district court issued its decision in this case, the Corps expressly clarified its intent by specifying in the final regulations that the unasserted jurisdiction permit only applies to section 10 of the River and Harbor Act. See 51 Fed.Reg. 41,206 (Nov. 13, 1986). Cumberland asserts that it must be allowed to rely upon the unasserted jurisdiction permit because an ordinary person reading the 1982 version of the Corps’ regulations would not have known that this permit applied to only section 10 of the River and Harbor Act. Cumberland points to the district court’s observation that the Corps’ regulation regarding this permit was so “opaque” that it vitiated Cumberland’s legal culpability, leading the court, as a matter of discretion, to decline to impose a fine from 1977 to 1984, in which latter year the Corps first made it unequivocally clear that it asserted jurisdiction over Cumberland. But while the court would not impose a fine for this period — a ruling from which the Corps has not appealed — we are unconvinced that the Corps’ drafting errors in its 1982 regulations provides a basis for exempting Cumberland from its equitable duty to undo the consequences of illegal activities commenced in 1977. When in 1977 Cumberland first came under a duty to apply for a section 404 Clean Water Act permit, the Corps’ regulations were perfectly clear that the unasserted jurisdiction permit provided no exemption to Cumberland. At the same time, the 1977 regulations unambiguously asserted the Corps’ Clean Water Act jurisdiction over freshwater wetlands such as the Great Cedar Swamp. It was only in 1982, after Cumberland had ignored and actively violated the Clean Water Act for five years, that the Corps recodified the regulations in such a way that a reasonable person might have thought that the unasserted jurisdiction permit covered Cumberland’s work. Two years later, in December 1984, the Corps notified Cumberland that it asserted jurisdiction over the wetlands in question. This ended any exemption that an “unasserted jurisdiction” permit, if applicable, could have provided. Thus while Cumberland’s activities from 1977 through 1985 were, absent a permit, plainly illegal, it was only for the brief period from 1982 to 1984 that any claim can be made to the protection of an unasserted jurisdiction permit. We note, moreover, that the district court found that even after Cumberland was on notice, in 1984, that the Corps asserted jurisdiction, making the question of an unasserted jurisdiction permit irrelevant, Cumberland pressed forward in flagrant violation of the Clean Water Act. Given the inequitable behavior on the part of Cumberland and the lack of any evidence of reliance upon, or even knowledge of, the ambiguous regulation, see note 2, supra, we find that this short period of theoretical doubt cannot be used to excuse Cumberland from its equitable duty to reverse the harmful effects of its illegal activity. We reject Cumberland’s contention that the unasserted jurisdiction permit sheltered its illegal activities in the Great Cedar Swamp so as to relieve it from a duty to restore the property. III. THE INJUNCTIVE RESTORATION ORDER Cumberland next asserts that, on principles of equity, the Corps should not be allowed to “retroactively” assert jurisdiction over its farmland, and so Cumberland should not have to comply with the injunction ordering the restoration of the Great Cedar Swamp to its 1977 condition. Cumberland asserts that when it began farming the 2,000-acre property, it intended to farm the entire property, and therefore it must be allowed to retain, in farmland, the wetlands it has converted since 1977. Cumberland apparently views the Corps’ use of its enforcement authority under the Clean Water Act (albeit eight years after Cumberland’s first violation) as an inequitable, retroactive assertion of jurisdiction. Under Cumberland’s view, since it got away with these violations for eight years, the Corps is equitably foreclosed from enforcing the Clean Water Act once it finally discovered Cumberland’s illegal activities. There is no principle of equity that supports any such claim, nor do the two cases cited by Cumberland, United States v. Context-Marks, 729 F.2d 1294 (11th Cir.1984), and Buccaneer Point Estates, Inc. v. United States, 729 F.2d 1297 (11th Cir.1984), do so. In each of these cases a landowner began developing property, using dredge and fill, in order to build residential and/or marina facilities. The Corps sent letters to each developer, stating that his activities must cease and that he should obtain a Corps permit because the area being developed was within the Corps’ jurisdiction. The developers did no further work on the projects in reliance upon these letters. Subsequently, the Corps determined that the area being developed was not in fact covered by the Corps’ regulatory authority and that the Corps did not require permits for the developers’ activity. Very shortly thereafter, however, the Corps amended its regulations, expanding its jurisdiction to cover the developers’ activities. The Corps then demanded that the developers obtain a permit pursuant to section 404 of the Clean Water Act. The Eleventh Circuit held that the two developers would not be required to get a permit because the evidence showed that if the Corps had not erroneously asserted jurisdiction, and if the developers had not ceased their activities in response to the Corps’ erroneous cease and desist order, the two projects would have been completed prior to the promulgation of the Corps’ new regulations which expanded jurisdiction. These two cases are altogether different from the present. There, the developers would have completed their projects, for which permits were not then required, had the Corps not erroneously asserted jurisdiction. It was arguably inequitable to allow the Corps to utilize its subsequently enhanced jurisdiction to burden the stalled projects. Such, however, is not the case with respect to Cumberland’s activities in the Great Cedar Swamp. The Corps is not relying on a retroactive assertion of jurisdiction. The Corps had jurisdiction from 1977 on, its jurisdiction having been enlarged to cover freshwater wetlands. Cumberland was accordingly required by law in 1977 and thereafter to obtain a Clean Water Act permit. Cumberland never obtained a permit but continued its dredge and fill activities in violation of law. The Corps is not retroactively asserting jurisdiction, but rather is properly seeking enforcement of the Clean Water Act from the date that Cumberland first violated the act. Cumberland points to no evidence that it would have converted the full 2,000 acres prior to 1977, and that the Corps’ actions somehow delayed implementation of that timetable. There is no merit in Cumberland’s assertion that simply because it planned, in 1972, eventually to convert the entire 2,000 acres of wetland to farmland, that it should be excused from complying with the permit requirements of the Clean Water Act which became applicable to Cumberland’s property in 1977. Cumberland was then required by law to apply for and obtain a permit but never did so. Cumberland’s unarticulated future intentions for the property cannot be used to preclude the application of the federal law. Cumberland further contends that the court should not have delved into the details of a restorative order, but should have simply issued an order to prevent further work and remanded the matter to the Corps for further administrative proceedings through an after-the-fact permit application. Processing such an after-the-fact permit would require an administrative hearing which would ensure public participation. Cumberland argues that the Corps’ regulations evince a clear agency policy that the program of regulating wetlands should consider the full public interest by balancing the favorable and detrimental impacts of a proposed activity. See 33 C.F.R. § 320.1(a). Cumberland asserts that such a balancing of public interests can be best accomplished through an after-the-fact permit process. The regulations that Cumberland points to as evincing a policy of public participation through an administrative hearing are primarily concerned with permit applications for proposed projects that will occur in wetlands. The present circumstances do not easily fit within the frame of a proposal stage proceeding. In the latter, there is more time to solicit public input and to weigh competing values before authorization of the proposed project. Here, there was a serious, ongoing violation of the Clean Water Act, as to which the Corps’ regulations, found at part 326, “Enforcement, Supervision and Inspection,” are more on point. Under part 326, the regulations make it clear that the Corps will consider an after-the-fact permit only if the violator has completed interim remedial work which the Corps deems necessary to protect public resources. In the present case, Cumberland refused to comply with the Corps’ interim remedial order, which was designed to restore the area to its 1977 wetland condition, “unless and until some higher authority determines that to be an appropriate result.” Therefore, the Corps refused to consider an after-the-fact permit for Cumberland’s activities. The Corps’ enforcement regulations’ subsection entitled “Administrative action” states, Remedial work. (1) The district engineer shall determine whether as a result of the unauthorized activity, life, property or important public resources are in serious jeopardy and would require expeditious measures for protection. Such measures may range from minor modification of the existing work to complete restoration of the area involved____ If the district engineer determines that immediate remedial work is required, he shall issue an appropriate order describing the work, conditions and time limits required to provide satisfactory protection of the resource. 33 C.F.R. § 326.3(b). Thus the district engineer is expected to issue such remedial orders as he deems necessary, and such orders may range, as necessary, from minor modifications to complete restoration of the wetland, which was the case here. Under the subsection entitled “Acceptance of an after-the-fact application,” 33 C.F.R. § 326.4(c), the regulations clearly require that remedial work be completed before the Corps will accept an after-the-fact permit application. Upon completion of appropriate remedial work, if any, the district engineer shall accept an application for an after-the-fact permit for all unauthorized activities unless: (1) Civil action to enforce an order issued pursuant to § 326.2 or § 326.3(b) [remedial orders] is required____ The regulations also clearly set out the Corps’ enforcement policy that in exceptional circumstances, i.e., knowing, flagrant, repeated or substantial impact violations of the Clean Water Act, the Corps shall seek civil penalties, as was done in this case. The regulations state that the district engineer may recommend to the United States Attorney that a complaint seeking such civil penalties be filed and that “[a]n after-the-fact application should not be accepted until the enforcement action is completely resolved.” 33 C.F.R. § 326.4(c)(4). Thus, contrary to Cumberland’s assertions, the Corps was acting well within its enforcement policies as articulated in its regulations. When Cumberland refused to comply with the Corps’ remedial order, and instead continued further destruction of the wetland, the Corps was within its rights, and indeed was left with no other recourse, but to seek judicial enforcement of the remedial restoration order, rather than to process administratively an after-the-fact permit. Cumberland’s reliance upon the primary jurisdiction doctrine is similarly misplaced. The doctrine of primary jurisdiction helps to define the relationship between courts and administrative agencies by recognizing that if an agency adjudicatory proceeding is ongoing, courts will usually not interfere until the administrative process is complete. By suspending the judicial process, appropriate issues can be referred to the agency for its special expertise, and courts will not prematurely interfere with the administrative process. See United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). As discussed above, however, under the Corps’ regulations no further administrative proceedings are pending, nor can the Corps entertain any further permit proceeding until Cumberland complies with the interim orders, which Cumberland refused to do. Thus the district court was not impermissibly interfering with the Corps’ administrative process. Rather it was the Corps itself which sought the aid of the district court after Cumberland had ignored the Corps’ cease and desist order and had refused to implement the protective measures. Moreover, in fashioning the remedy, the court had the full benefit of the Corps’ expertise through the Corps’ proposed restoration plan, which the court adopted with only a few changes. Cumberland presents no authority for the proposition that the district court lacked authority to issue a restoration order. The Clean Water Act authorizes the commencement of a civil action “for appropriate relief, including a permanent or temporary injunction.” 33 U.S.C. § 1319(b) (1983). We believe that the district court had authority to issue such restorative orders so as to effectuate the stated goals of the Clean Water Act “to maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251 (1983). See Weinburger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (under section 1319 of Clean Water Act, district court not required to order injunctive relief but is permitted to exercise equitable discretion to order relief that will achieve compliance with the act). In United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), the Supreme Court held that under section 10 of the River and Harbor Act, district courts had the authority to issue injunctive restoration orders despite the lack of explicit statutory authority to do so. Congress has legislated and made its purpose clear; it has provided enough federal law in section 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation. Id. at 492, 80 S.Ct. at 890. Cumberland further attacks the substance of the restoration order, arguing that it is speculative and untested, will cause harm to third parties and is inequitable. The district court issued an injunctive order that the converted area be restored to its 1977 condition after finding that the restoration order (1) would confer maximum environmental benefits; (2) was achievable as a practical matter; and, (3) bore an equitable relationship to the degree and kind of wrong that it is intended to remedy. See United States v. Sexton Cove Estates, 526 F.2d 1293, 1301 (5th Cir.1976); United States v. Weisman, 489 F.Supp. 1331, 1343 (M.D.Fla.1980). We review an award of injunctive relief only for an abuse of discretion. See Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973); Pino v. Protection Maritime Insurance Co., 599 F.2d 10, 16 (1st Cir.), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979). Any findings of fact, upon which the court’s exercise of discretion is based, will stand unless clearly erroneous. See Fortin v. Commissioner of Massachusetts Department of Public Works, 692 F.2d 790, 794 (1st Cir.1982). We find no abuse of discretion here. The district court carefully considered the possible detrimental impact of the proposed order, but found that the beneficial aspects of the restoration order outweighed the possible detrimental aspects. The court found that restoration of the site to its 1977 status would assist in flood control; would significantly improve the functioning of the area as a biological filter; and would have a direct improvement on wildlife habitat. The court found that the restoration was in the public and national interest and would maximize environmental benefits. The district court further found that the restoration order proposed by the Corps was “technically competent and innovative.” 647 F.Supp. at 1183. Cumberland’s contention that the district court abused its discretion by ordering a “speculative” plan is unfounded. The court was presented with testimonial evidence that the first two facets of the plan, reestablishing the wetland topography of hollows and hummocks, and raising the water table to 1977 levels were necessary in order to restore the wetland. The third step of spreading strips of vegetation, taken from a nearby swamp so as to provide for the regeneration of diverse species is, as the court found, innovative. However, it is not so speculative as to taint the injunctive order. The Corps presented testimony by an ecologist who had been involved in a great number of wetland restoration projects, some of which used the technique of borrowing plant material from nearby wetlands to be used as a plant source. He testified concerning the successes reached in these prior restoration projects. The ecologist testified that he thought the restoration plan in this case was achievable as a practical matter, and was an “average plan in terms of the degree of difficulty” as compared with other restoration plans he had worked on. While none of the prior successful restorations dealt with exactly the same situation, clearly the court had enough evidence before it to evaluate the practicality of this “innovative” approach. Cumberland asserts that it would be inequitable to enforce the order because, according to Cumberland, it will have a detrimental effect on the nearby cranberry bogs and on five houses that were built near the wetland after it was drained and converted to farmland. The court was well aware of these potential problems, and adequately protected those interests. 'The Corps presented testimony concerning the potential detrimental impacts on the cranberry bogs. The court modified the Corps’ proposed plan, altering the locations of proposed “check dams,” in order to better protect the nearby cranberry growers. As to the nearby houses, the court was sensitive to possible adverse effects, but felt the balance should be struck in favor of enforcing the Clean Water Act which had been violated since 1977. We note that through testimony and an elevation survey, the Corps presented evidence that the possibility of detrimental effects on the houses from the raised water table is minimal. Finally, Cumberland asserts that it is inequitable to enforce the restoration plan because it will have the effect of inundating its valuable farm fields. The district court was careful to protect any fields Cumberland had converted prior to 1977, modifying the proposed plan to better protect those fields. To be sure, in the area converted since 1977, the restoration order places a heavy burden on Cumberland. However, Cumberland has no one but itself to blame for that burden. Had Cumberland complied with the Clean Water Act when the Act first became applicable to its activities in 1977, no such burdensome order reversing the many years of illegal activity would have been necessary. Moreover, Cumberland’s intentional, unlawful conversion activities continued even after the Corps actively tried to get Cumberland’s cooperation in complying with the law. We believe the district court did not err in finding that the restoration order bore an equitable relationship to the degree and kind of wrong which it is intended to remedy. Affirmed. . The district court’s opinion is printed at 647 F.Supp. 1166 (D.Mass.1986). . In his answers to the Corps' interrogatories, Mr. Peck, on behalf of Cumberland, stated that Cumberland was not contending that its activities qualified for any nationwide permit. During trial when Cumberland began trying to rely on these nationwide permits, the Corps did not hold Cumberland to its admission in the interrogatory, and so the district court addressed the question of applicability of the nationwide permits. See 647 F.Supp. at 1177 n. 7. . This nationwide permit was subsequently amended and recodified. See 33 C.F.R. § 330.5, as modified at 49 Fed.Reg. 39,478, 39,484 (Oct. 5, 1984). The amendments to the permit are not at issue in this case. . The district court found that a "significant” amount of erosion — not merely some "minor” amount as Cumberland claims — was occurring from Cumberland’s activities. There was ample evidence, in the form of testimony and pictures, to support the court’s finding of "significant” erosion. . According to Cumberland's own representations, it did no dredging and filling at the site between the summer of 1983 and 1985. Since the ambiguous rule was promulgated in July of 1982, only a year’s activity at most could have occurred under the purportedly permissive rule. . Throughout this enforcement action Cumberland has not asserted, nor has it pointed to, any statute of limitations which might preclude enforcement of the Clean Water Act. . While primarily designed for proposed projects, these same regulations do apply to an after-the-fact permit process. However, as the regulations make clear, see infra, the Corps considers such after-the-fact applications only after any environmental damage has been ameliorated through implementation of necessary interim protective measures. Thus, for those after-the-fact applications where the violator has protected against further environmental damage, the Corps can take the time to convene hearings to consider the public's views. Such is not the case here. See infra. . The government did not object to the district court’s use of this three part test for determining the appropriateness of a restoration order. On appeal, the government urges that a less demanding test is appropriate. However, the government’s acquiescence on this point before the district court forecloses the issue here, and we shall not address it. See Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). . The Corps submitted, as part of its memorandum in support of the restoration order, a survey of elevations of the recently built houses, to which Cumberland did not object. The survey showed that the lowest base elevation of the houses was 41.89 NGVD (National Geodetic Vertical Datum, essentially the elevation above designated sea level). Testimony by one of Cumberland's witnesses was that the cellars of these houses would extend seven feet below ground, i.e., at approximately 34 feet of elevation, and that septics would extend six feet below the surface, i.e., approximately 35 feet of elevation. Testimony at trial showed that the water table on Cumberland’s land would be raised, by filling in ditches and constructing check dams, to approximately 26 to 28 feet, or perhaps during flood stages to 30 feet of elevation.

Friends of the Earth v. Hintz

COYLE, District Judge: On January 10, 1983, the Army Corps of Engineers issued a permit pursuant to Section 404 of the Clean Water Act, 33 U.S.C. section 1344, to appellee ITT Rayonier, Inc. (“Rayonier”). The permit authorizes Rayo-nier to fill a seventeen acre area as part of its sawmill/sorting yard/log export complex located in Grays Harbor on Washington’s Pacific Coast within the City of Hoquiam. Appellants appeal the district court’s grant of summary judgment for appellees in which the court upheld the issuance of the permit. Jurisdiction is based upon 28 U.S.C. sections 1291 and 1331 and 33 U.S.C. section 1365. We affirm. I. FACTS AND PROCEEDINGS BELOW A. Facts. In 1975 Rayonier purchased a seventeen acre tract in the “Bowerman Basin” mudflats area of Grays Harbor from the City of Hoquiam for use as a site for its Grays Harbor log export sorting yard. Bower-man Basin is a wetland, and a valuable habitat for numerous species of birds, as well as an important wintering and migratory spot for ducks, geese, and other waterfowl. After obtaining a shoreline conditional use permit from the Washington State Department of Ecology, Rayonier began filling the seventeen acre tract in June 1978 so that it could be used for log export storage and sorting. At that time, a draft report of the Grays Harbor Estuary Management Plan designated the sorting yard area as outside a wetlands area for purposes of jurisdiction under section 404 of the Clean Water Act; hence, Rayonier neither applied for nor obtained a section 404 permit. Rayonier filled the tract with wood waste, which contains leachate, a highly toxic material. In August, 1979, Rayonier’s filling activities were reported to the Army Corps of Engineers (“Corps”), which prepared a memorandum noting that the fill of the tract might require a section 404 permit. Four months later, the Corps advised Rayo-nier that it had placed fill on wetlands adjacent to waters of the United States, without obtaining a Department of the Army permit in violation of federal law. On January 14, 1980, the Corps issued a cease and desist order to Rayonier requiring it to place no additional fill material on the wetlands at the Bowerman Basin site. On March 25, 1980, the Corps requested resource agencies and others to submit their views regarding Rayonier’s filling activities. The Corps received reports from the U.S. Fish and Wildlife Service (“FWS”), the National Marine Fisheries Service (“NMFS”), and the Environmental Protection Agency (“EPA”). The general consensus of these reports was that the fill would result in destruction of the wetlands and a recommendation that the Corps take appropriate legal action to have the fill removed. The Corps determined that because of changes in federal regulations relating to the definition of “wetlands” that had been adopted in July 1977, Rayonier was required to obtain a section 404 permit but had failed to do so. B. Administrative History. The Corps regulations authorize the Corps to issue section 404 permits for activities initially undertaken without the required Department of the Army permit. See 33 C.F.R. § 325 and former § 326.5. Beginning in February 1981, the Corps and various resource agencies began to meet and discuss the possibility of a mitigation plan that would make such an after-the-fact permit for Rayonier acceptable. On December 2,1981, Rayonier informed the Corps that a mitigation plan had been reached. The mitigation plan contemplated the purchase by Rayonier of seventeen acres of pasture land (“Elk River site”), and the breaching of a dike to convert the pasture back into wetlands to offset the loss of a similar quantity of wetlands to Rayonier’s filling. Rayonier was to convey the Elk River site to the Washington Department of Game (“WDG”); however, the agreement did not-require that Rayonier acquire the Elk River site as a prerequisite for the issuance of the section 404 permit. Rather, the agreement provided that Rayonier was to “pursue” purchase of the site. In the event that Rayonier did not purchase the site within six months, the mitigation plan only required Rayonier to pay a sum of $25,500 to the WDG. The absence of language in the mitigation agreement conditioning issuance of the permit upon Rayonier’s conveyance of the Elk River site to the Washington Department of Game is one basis for this appeal. Meanwhile, Rayonier, acting at the request of the Corps, submitted a number of reports in May and June 1981 concerning its need for an export log storage and sorting area. The purpose of these reports was to determine whether Rayonier’s use of the wetlands area for log storage was a “water dependant use” and whether feasible alternatives existed. See 33 C.F.R. § 320.4(b)(4); 40 C.F.R. § 230.10(a)(3). Rayonier argued in the reports that its “integrated” operation required a storage facility close to its dock operations, and that due to financial and logistical problems, no alternative sites existed. After several meetings with Rayonier, and requests for supplemental reports, the Corps collected and analyzed the views of the concerned agencies and Rayonier. On April 9, 1982 the Corps issued a Section 404(b)(1) evaluation and concluded that the sorting yard was a water dependant use and that no feasible alternatives existed. Rayonier also submitted its formal leach-ate control plan to the Corps and to the Washington Department of Ecology in March, 1982. Rayonier proposed placement of a two-foot soil cap over the wood waste fill to prevent escape of leachate. The Corps determined that, despite Rayonier’s proposals, leachate would continue to degrade the Bowerman Basin water quality for many years, but concluded that this plan would result in measureable improvement in quality of runoff from the site over the long term. On August 20, 1982, the Corps requested that Rayonier submit a formal Section 404 permit application for the sorting yard pursuant to former 33 C.F.R. § 326.5. On August 27, 1982 Rayonier submitted its Section 404 permit application. On September 28, 1982, the Corps provided public notice of its receipt of the application and intent to issue a section 404 permit to Ray-onier. This public notice included the application, referenced the mitigation plan and attached Rayonier’s water quality control plan. The notice stated requirements for compliance with the Endangered Species Act, Coastal Zone Management Act, and Clean Water Act, and invited public comment regarding the permit application. The EPA, FWS, NMFS, and others responded to the public notice by stating that they neither supported nor opposed the permit provided that it was conditioned upon the mitigation agreement being made part of the permit application. The Washington Department of Ecology certified that the permit complied with the relevant provisions of the Federal Water Pollution Control Act, and stated that it had no objection to issuance of the Section 404 permit to Rayonier. But Friends of the Earth objected to the issuance of the permit, and filed two letters arguing that: (1) the permit activity was not water dependent; (2) practicable alternatives existed, and (3) issuance of the permit would have an adverse effect on water quality. Friends of the Earth did not specifically object to the mitigation plan itself. On December 21, 1982, the Corps issued an Environmental Assessment (“EA”) of Rayonier’s permit application. See 33 C.F.R. § 230.9. The EA concluded that with the required mitigation, the permit would have “no significant impact on the human environment” and that, therefore, “no Environmental Impact Statement (“EIS”) was needed”. See 42 U.S.C. § 4332. On January 10, 1983, the Corps issued a Section 404 permit to Rayonier with a Statement of Findings. The Mitigation Agreement and Rayonier’s water quality plan were made a special condition of the permit. At the time the Corps issued the permit, it sent a letter to the Friends of the Earth rejecting their objections as a basis for denying the permit and including copies of its Section 404(b)(1) evaluation, the EA, Statement of Findings, and the permit. C. The District Court Proceedings. Appellants filed suit in the United States District Court for the Western District of Washington on May 3,1983 seeking judicial review of the Corps’ issuance of the Section 404 permit to Rayonier. The District Court had jurisdiction under 28 U.S.C. § 1331. In a six claim complaint, appellants alleged violations of Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (claim one); Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (claim two); Section 402 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342 (claim three); Section 307 of the Coastal Zone Management Act of 1972, 16 U.S.C. § 1456 (claim four); Section 102 of the National Environmental Policy Act (“NEPA”) of 1969, 42 U.S.C. § 4332 (claim five); and the Endangered Species Act, 16 U.S.C. §§ 1531 and 1533 (claim six). The court, upon appellee’s motion, dismissed claims two and four and Rayonier and the Corps filed answers to the remaining claims on July 8, 1983. On April 19, 1984 Appellants scheduled the depositions of several defendants. Ap-pellees moved to quash the depositions, contending that review was limited to the administrative record and discovery therefore was improper. The court granted defendant’s motion, holding that “because judicial review of final agency action is limited to the administrative record, no discovery shall be had in this case.” Appellants challenge this decision. Also on April 19,1984, Appellants moved for summary judgment on their fifth (NEPA) claim, and appellees moved for summary judgment on appellants’ remaining claims. The court heard oral argument on the motions on June 1, 1984, at which time it requested supplemental memoranda and proposed orders in the form of findings and conclusions. On July 23, 1984, the Corps supplemented the Administrative Record with documents establishing that Rayonier completed its responsibilities under the mitigation agreement by purchasing and conveying the Elk River site to the Washington Department of Game on August 31, 1983. On August 21, 1984, the district court entered an order granting appellee’s motion for summary judgment and denying that of the appellants. The court held: Judicial review of the Corps’ decision is limited to the administrative record. (Conclusion of Law No. 3) The Corps of Engineers’ decision to grant Rayonier's Section 404 permit was rationally based on a reviewable administrative record. (Finding of Fact No. 21) The Corps’ decision to grant Rayonier’s Section 404 permit is not found by this Court to have been ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ (Conclusion of Law No. 4) The Corps of Engineers reasonably concluded, based on a reviewable administrative record, that issuance of the permit requested by Rayonier, in accordance with the mitigation agreement that was a special condition of the permit, would not significantly affect that quality of the human environment and that preparation of a formal EIS was therefore unnecessary. (Finding of Fact No. 22) Plaintiffs have waived their Fifth and Sixth Claims, under the NEPA, 42 U.S.C. § 4332, and the Endangered Species Act, 16 U.S.C. § 1531, et seq. (Conclusion of law No. 5) On September 19, Appellants filed their notice of appeal. Appellants will seek attorneys’ fees for appeal if successful. 33 U.S.C. § 1365; 28 U.S.C. § 2412; Ninth Circuit Local Rule 13(b)(1)(E). II. DISCUSSION Appellants’ appeal of the district court’s summary judgment challenges the issuance of the section 404 permit to Rayonier and the Corps’ decision not to require an EIS pursuant to 42 U.S.C. § 4332 (NEPA) for the fill. Further, appellants appeal the district court’s decision to limit judicial review to the administrative record. Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is clearly entitled to prevail as a matter of law. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677 (9th Cir.1984). On an appeal from a summary judgment, the reviewing court must “look at the record on summary judgment in the light most favorable to ... the party opposing the motion.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). A. Limitation of Judicial Review to the Administrative Record. Appellants argue that the district court’s decision that review of the Corps’ determinations was limited to the administrative record was incorrect. Appellants argued this point in opposition to appellee’s motion to quash deposition notices. They now contend that the court’s order deprived them of the opportunity not only to discover matters of a factual nature, but also to determine whether the administrative record was a complete and accurate record of the Corps’ deliberations. With a few exceptions, discussed below, judicial review of agency action is limited to a review of the administrative record. In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court noted that “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 [93 S.Ct. 1241, 1244, 36 L.Ed.2d 106] (1973). The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Id. at-, 105 S.Ct. at 1607. See also Black Construction Corp. v. INS, 746 F.2d 503, 505 (9th Cir.1984); Arizona Past & Future Foundation, Inc. v. Lewis, 722 F.2d 1423, 1425-26 (9th Cir.1983). Courts apply this same standard for reviewing agency action under Section 404 and NEPA. See, e.g., Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 905 (5th Cir.1983) (basis for court’s review of a section 404 permit decision is the administrative record); Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 684 (D.C.Cir.1982) (Review of agency’s decision not to issue EIS confined to administrative record). But exceptions exist to the rule that review of agency action is limited to the administrative record. A court may consider evidence outside the administrative record as necessary to explain agency action. Asarco, Inc. v. United States Environmental Protection Agency, 616 F.2d 1153, 1159 (9th Cir.1980). See also Arizona Past & Future Foundation v. Lewis, 722 F.2d at 1426 n. 5. When there is “such a failure to explain administrative action as to frustrate effective judicial review,” the court may “obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary.” Public Power Council v. Johnson, 674 F.2d 791, 793-94 (9th Cir.1982), quoting, Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1243, 36 L.Ed.2d 106 (1973) (per cu-riam). The purpose of the court’s enquiry should be to ascertain whether the agency considered all relevant factors or fully explicated its course of conduct or grounds of decision. Asarco, Inc. v. United States Environmental Protection Agency, 616 F.2d at 1160. We believe that the 639 page administrative record adequately explains the Corps’ decision and shows that the Corps weighed the relevant factors before issuing the section 404 permit. The discovery sought by the appellants might have supplied a fuller record, but otherwise does not address issues not already there. No further “background information” was necessary for the court to review the record. The court below properly limited review to the administrative record. B. The Corps’ Issuance of a Section 404 Permit. The district court’s summary judgment upheld the Corps’ decision to issue a section 404 permit to Rayonier to discharge fill material into a wetlands area. Section 404 of the Clean Water Act, 33 U.S.C. section 1344(a) authorizes the Army Corps of Engineers to issue permits allowing the discharge of dredged or fill material. See also 33 C.F.R. § 320.3(f). The Section 404 permit process is governed simultaneously by Corps Regulations, 33 C.F.R. Parts 320-29, and by EPA guidelines, 40 C.F.R. Part 230. Both sets of rules must be observed. See 33 C.F.R. §§ 320.3(f), 320.4(a)(1). Section 320.4 of 33 C.F.R. sets forth the general policies that are to guide the Corps in its evaluation of permit applications for fill activities. The regulations require the Corps to conduct a public interest review, balancing the “benefit which reasonably may be expected to accrue from the proposal” against its “reasonably foreseeable detriments” with consideration for the “national concern for both the protection and utilization of important resources.” 33 C.F.R. § 320.4(a)(1). A permit will be granted unless the district engineer determines that issuance would be contrary to the public interest. Id. However, a section 404 permit must also comply with EPA guidelines. Id. Corps policies relating specifically to wetlands are found in 33 C.F.R. section 320.-4(b). That section declares that Some wetlands are vital areas that constitute a productive and valuable public resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest. 33 C.F.R. § 320.4(b)(1). This provision then identifies seven types of functions performed by wetlands that are important to the public interest, 33 C.F.R. section 320.-4(b)(2), and states that “[n]o permit will be granted which involves the alteration of wetlands” unless the Corps engages in a public interest review and concludes that “the benefits of the proposed alteration outweigh the damage to the wetlands resource.” 33 C.F.R. § 320.4(b)(4). The pertinent EPA guidelines reflect the policy that “dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact____” 40 C.F.R. § 230.1(c). The EPA guidelines parallel the Corps’ regulations in their special concern for wetlands. Thus, the guidelines state: From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources. 40 C.F.R. § 230.1(d). 1. Standard of Review. The standard of review for an agency determination to issue a section 404 permit is that found in the Administrative Procedures Act, 5 U.S.C. section 706(2), which provides that the reviewing court shall set aside any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1032 (2d Cir.1983). This standard of review is highly deferential. While 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,” and while “this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The court may not set aside agency action as arbitrary or capricious unless there is no rational basis for the action. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1027 (9th Cir.1980). 2. Application. Appellants claim that the Corps acted arbitrarily and capriciously in granting a section 404 permit to Rayonier. Appellants raise three specific objections to the Corps’ decision to grant the permit: (1) the permit activity is not water dependent; (2) practicable alternatives to the permit area existed, and (3) the permit activity would have an adverse effect on water quality. Appellants also argue that in reaching its conclusions, the Corps erroneously relied on information supplied by Rayonier, and failed to conduct its own investigation or independently verify the information on which it based its decision. (a) Water Dependency. The Regulations define a water dependent activity as one requiring “access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose.” 40 C.F.R. 230.10(a)(3). If an activity is found not to be water dependent, then “practicable alternatives that do not involve special aquatic sites are presumed to be available____” Id. In its Section 404(b) evaluation of Rayonier’s permit application, the Corps determined that Rayo-nier’s log storage activity was water dependent. Appellants challenge this conclusion. The record reflects, however, that the Corps engaged in a reasonably thorough examination of the water dependency issue, and reached a rational conclusion. The Corps first requested information from Rayonier regarding the fill activity in March 1981. Rayonier met with represent- atives of the Corps and other state and federal resource agencies to discuss a section 404(b) evaluation in May 1981, and reached the following conclusion regarding water dependency: All agencies agreed that log storage is not a water dependent use unless the storage is tied to an exporting facility. The agencies do recognize the need for an inventory of logs immediately adjacent to the ship loading facility and would consider log storage for this purpose as water dependent. The participants then requested supplemental information from Rayonier on the water dependency issue, and specifically called for details on four matters. Rayonier prepared the requested report in which it concluded: The sawmill, sorting yard and export log storage functions together form an integrated complex. The sorting area acts as a receiving point. It serves the sawmill as well as the export log storage area. In addition, it handles logs to be shipped to local domestic users____ From this base expanding export log storage to [the permit area] is the only feasible alternative. In this context, then the filling of [the permit area] is water dependent. In other words, Rayonier’s Grays Harbor facility is an integrated complex so that the log storage area is used both for domestic and export purposes. Accordingly, the storage area must be adjacent to the ship-loading facility, and therefore is a water dependent activity. The Corps then met with the other resource agencies on May 27, 1981 to discuss and analyze this report. Rayonier was asked to prepare report revisions, which it submitted on June 22, 1981. Rayonier also provided answers to specific questions asked by the Corps and the concerned resource agencies. The Corps and each of the agencies then analyzed and reviewed Rayonier’s report, and concluded that the proposed activity was water dependent. The Corps’ section 404(b) evaluation explicitly responded to appellants’ assertion that the fill activity was non-water related, and explains the reasoning for their decision: Applicants Response. Log storage is an important part of the overseas lumber and log export facility. Log storage near the dock is essential to the efficient operation of that facility. District Engineer’s View. The applicant’s log and lumber export operations require immediate proximity to navigable waters. The project site will serve as a log storage area for these operations. The expansion of the applicant’s industrial complex, to include the project site, constitutes a water-dependent use of a special aquatic area. This record does not support Appellants’ claim that “the record does not explain the Corps’ sudden disavowal of the previous consensus among it and the resources agencies.” Appellants’ Brief, page 34. Rather, the record reveals that after a substantial exchange of information, the agencies agreed with Rayonier that its log storage activity was related to export, and hence, by their own definition, a water dependent activity. The record adequately explains why the Corps believed the fill activity was water dependent, and that explanation is rational. See Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1051 (2d Cir.1985). (b) Practicable Alternatives. The EPA guidelines require that the Corps issue no section 404 permit for discharge of fill material onto wetlands if “there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). The guidelines define “practicable” in 40 C.F.R. section 230.10(a)(2): (2) An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered. In its section 404(b) evaluation, the Corps concluded that “no practicable alternative site locations exist would satisfy [Rayonier’s] logistical needs and are not prohibitively expensive.” Appellants challenge that determination on the grounds that the Corps improperly limited its consideration of alternative sites for log storage to those sites reviewed and eliminated by Rayonier, and that the information supplied by Rayo-nier confirmed that practicable alternatives were available. In its May 21, 1981 report to the Corps, Rayonier listed four possible alternative sites for its sorting yard — Port of Grays Harbor Kaiser site, Port of Grays Harbor terminal 4, adjacent property owned by the City of Hoquian, and two tracts of land north of the sawmill site. Rayonier argued that due to distance only the Port of Grays Harbor Kaiser site and the Port of Grays Harbor Terminal 4 were practicable. Ray-onier noted, however, that either of these facilities would mean substantial additional costs ($1,785,700 per year for Terminal 4; approximately $1,000,000 per year for the Kaiser site) from double handling, service fees, storage, overhead and inefficiency. The Corps and the other concerned state and federal resource agencies then considered and evaluated Rayonier’s report. At a meeting on May 27, 1981, Rayonier and the agencies discussed logistics and costs of utilizing a remote site for storage of export logs. Rayonier was directed to supplement its report to address those concerns. Rayonier responded in its June 22, 1981 supplemental report. After considering Rayonier’s report of June 22, 1981, and the conclusions of the concerned agencies, the Corps produced its section 404(b) evaluation. Referencing Rayonier’s report, the Corps concluded that no practicable alternatives existed. The Corps also addressed appellants’ proposed alternative — that Rayonier remove all fill material. The Corps found that suggestion punitive inasmuch as Rayonier’s need was legitimate, and concluded that “from a resource management perspective, allowing completion of the fill so long as acceptable mitigation could be identified and implemented was the more logical and practical approach.” Thus, the record reflects that the Corps made the proper analysis and weighed the correct factors in making its determination that no feasible alternatives existed. The Corps did not err by taking Rayonier’s costs into account. The regulations explicitly charge the Corps with taking cost, existing technology and logistics in light of overall project purposes. 40 C.F.R. § 230.-10(a)(2). In Louisiana Wildlife Federation, Inc. v. York, 603 F.Supp. 518 (W.D.La.1984), aff'd in part and vacated in part, 761 F.2d 1044 (5th Cir.1985), the court rejected the argument that the Corps must consider alternatives solely in terms of environmental impact, rather “it must take into account the objectives of the applicant’s project.” Id. at 528. Of the four proposed alternative sites, the Corps rationally concluded that the two were too costly for the applicant, and two were logistically unfeasible in light of Ray-onier’s legitimate purposes. While an argument can be made that one of these sites was suitable, it would not be appropriate for us to overturn the Corps’ contrary finding. The Corps complied with its “duty under the law,” see Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 646 (5th Cir.), reh’g denied, 718 F.2d 1096 (1983) and its decision is not subject to reversal. (c) Effect on Water Quality. The Corps’ regulations require it to evaluate permit applications for activities which may affect the quality of water for compliance with applicable affluent limitations and water quality standards. 33 C.F.R. § 320.4(d). Appellants argue that by issuing the section 404 permit to Rayonier, the Corps abandoned its initial recognition that toxic leachate from the wood waste fill is unacceptable. On November 12, 1982, the Washington Department of Ecology certified that Rayo-nier’s fill activity complied with the water quality standards set by the Clean Water Act. AR 562. See also 33 U.S.C. § 1341. Under the Corps’ regulations, such certification is conclusive with respect to water quality considerations. 33 C.F.R, § 320.-4(d). Appellants did not challenge the Washington Department of Ecology’s certification, or the conclusive effect of this regulation, in any proceeding below. Accordingly, Appellants are foreclosed from raising the water quality issue with respect to Rayonier’s section 404 permit. 3. Procedural Errors. Appellants argue that the Corps’ determination to issue Rayonier the section 404 permit was improper because by doing so the Corps changed its position on the effects of the fill activity. Initially, in 1979, when the Corps found out that Rayonier was filling the permit area with wood waste, the Corps and other resource agencies stated that the fill material was not for a water dependent purpose, that extensive filling in Grays Harbor was a widespread problem resulting in cumulative destruction of wetlands, and that protection of wetlands and water quality is definitely in the public interest. When the Corps issued Rayonier a section 404 permit, so appellants’ argument goes, it reversed its position on all these findings, thereby implying that its decision was arbitrary and capricious. This argument makes little sense. The Corps’ ultimate decision was not a reversal but simply the culmination of over a year and a half of investigations, meetings, and reports. All the documents relied upon by Appellants were issued before the Corps considered the reports offered by Rayonier and the effects of the mitigation plan and indeed, some of these documents were not issued by the Corps at all. Certainly, the Corps’ initial comments were preliminary and subject to change as understanding of permit issues expanded, the factual record developed, and the mitigation plan created. Appellants’ logic would tether the Corps to impressions made prior to any study of the potential impact of the fill activity, and actually deter the Corps from seeking to resolve difficult environmental questions. Appellants’ other ground for procedural impropriety is that the Corps did not do its own fact-finding and evaluation but relied solely upon information supplied by Rayo-nier. Appellants argue that both NEPA and the Clean Water Act impose upon federal agencies a duty to gather their own information and to review independently information supplied by a permit applicant. Here, appellants contend that the Corps erred by basing its permit decision exclusively on Rayonier’s justification report. The Corps’ regulations do not require the Corps to undertake an independent investigation or to gather its own information upon which to base an EA. See Save the Bay, Inc. v. U.S. Army Corps of Engineers, 610 F.2d 322, 325 (5th Cir.), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). An EA may be based entirely upon information supplied by the applicant and indeed may be prepared by an outside consulting firm. 33 C.F.R. Part 230, App. B § 8(b). See also Save Our Wetlands, Inc. v. Sands, 711 F.2d at 642-643. But the Corps’ regulations do say that when information for an EA is prepared by the applicant, “the district engineer is responsible for independent verification and use of the data, evaluation of the environmental issues, and for the scope and content of the EA.” 33 C.F.R. Part 230, App. B § 8(b). See also 40 C.F.R. § 1506.5(b). Thus, while the Corps could, and did, base its permit decision exclusively on the information provided by Rayonier, the Corps nonetheless had an obligation to independently verify the information supplied to it. Appellants’ contention must be analyzed in light of its specific objections to the issuance of the section 404 permit. As to effect on water quality, we held above that verification by the Washington Department of Ecology that Rayonier’s fill activity complied with the Water standards set by the Clean Water Act foreclosed Appellants from attacking the Corps approved leachate control plan here. With respect to the verification procedures used by the Corps, we find no basis for any claim of error although in view of the factual record any error would be, in any event, harmless. As to its determination of water dependency, the Corps requested reports and supplemental reports from Rayonier, consulted various federal and state resource agencies, analyzed the information, asked Rayonier questions, requested yet additional report revisions, and rationally concluded that the fill activity was water dependent. The evidence in the record that the Corps reviewed, analyzed, and supplemented Rayonier’s report is sufficient to fulfill its obligation under federal regulations. Cf. Save Our Wetlands, Inc. v. Sands, 711 F.2d at 643. Appellants’ assertion that the Corps did not meet its duty to independently verify is most vehemently directed, however, to the Corps’ alleged failure to independently investigate alternative feasible sites for the log export facility. Under the regulations then in force, see supra, n. 12, Rayonier had the burden of providing data regarding alternative sites. Rayonier made a study of four alternative sites and found none suitable. The Corps, as well as the EPA, FWS and WDG evaluated this report, proffered questions, and only after requesting supplemental reports concurred with Rayonier that no practicable alternatives existed. The Corps was not required to conduct a further study of alternatives or to independently find possible sites overlooked by Rayonier. See River Road Alliance, Inc. v. Army Corps of Engineers, 764 F.2d 445, 453 (7th Cir.1985), cert, denied, — U.S. -, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986). The Corps is not a business consulting firm, “[i]t is in no position to conduct a feasibility study of alternative sites” in Grays Harbor for a log export facility, “a study that would have to both evaluate [Rayonier’s] business needs and determine the availability of the necessary permissions from the owners of ... land at various sites.” Id. The Corps had to depend primarily on Rayonier for such information, and exhaustively studied that information prior to making its decision, a decision which, we emphasize, is supported by the conclusions of the concerned resource agencies. We conclude that the Corps satisfied its duties under the regulations; to require anything further would place unreasonable and unsuitable responsibilities on the Corps, which receives over 14,000 permit applications per year. See id. at 449. Certainly, we would not condone blind acceptance by the Corps of Rayonier’s or any other applicant’s study of alternative sites. But the record does not show, as appellants contend, that the Corps uncritically accepted Rayonier’s assertions. The Corps justifiably and legally relied primarily upon the study prepared by Rayonier, and its review of that study satisfied regulatory requirements. Further, the Corps sought and obtained the expert views of the resource agencies involved. The role appellants cast for the Corps is neither reasonable in terms of the Corps’ resources nor mandated by the regulations. The ample record shows that the Corps’ decision to issue Rayonier a section 404 permit was not arbitrary and capricious, but was based upon substantial information accompanied by nearly a year of meetings, reports, and evaluations. The Corps’ review process was not “woefully inadequate,” nor was its decision based on so little information that “it could only be explained as resulting from an almost fixed predetermination to grant the ... permit.” Sierra Club v. United States Army Corps of Engineers, 701 F.2d at 1032. C. NEPA Claim. The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decisions on the environment. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985). Thus, NEPA requires all federal agencies to prepare an EIS for major federal actions “significantly affecting the quality of the human environment____” 42 U.S.C. § 4332(2)(C). The regulations define federal action as including “actions approved by permit or other regulatory decision,” 40 C.F.R. § 1508.18(b)(4), thereby making Rayonier’s fill of the subject wetlands a federal action. An EIS must be prepared when substantial questions are raised on whether a project may significantly degrade the human environment. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at 986; Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir.1982). However, courts permit the effect of mitigation measures to be considered in determining whether preparation of an EIS is necessary. Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.1986); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at 987. In its EA issued December 21, 1982, the Corps determined that with the mitigation agreement, see supra, n. 3, Rayonier’s permit activity would have no significant impact on the human environment and therefore no EIS was necessary. Appellants challenge the Corps’ decision not to issue an EIS on the ground that the mitigation agreement imposed no mandatory duties on Rayonier other than payment of a sum of money to the WDG. Payment of money, appellants contend, is a form of mitigation inadequate to relieve the Corps of its obligation to prepare an EIS. The district court rejected appellants’ NEPA claims both because they waived those claims and because the Corps reasonably concluded that an EIS was not necessary for Rayonier’s permit activity. Additionally, appel-lees argue that the NEPA issue is moot. An agency’s decision that a particular project does not require preparation of an EIS is to be upheld unless it is unreasonable. Jones v. Gordon, 792 F.2d at 827; Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at 987; The Steamboa- ters v. FERC, 759 F.2d 1382, 1392 (9th Cir), reh’g denied, 111 F.2d 1384 (1985). The mitigation agreement required Rayonier to pursue the purchase of seventeen acres of pasture land (the Elk River Site) and transfer title thereto to the WDG. The pasture lands, also part of the Grays Harbor area, then would be converted back into wetlands in order to offset the loss of wetlands caused by Rayonier’s fill activity. However, the agreement did not condition issuance of the section 404 permit upon the purchase of the mitigation lands and their conversion to wetlands. Rather, if Rayonier did not purchase the Elk River site within six months, the agreement only obligated it to pay $25,500 to the WDG; and, if after 3V2 years the mitigation lands remained unpurchased, the agreement required Rayonier to pay $32,122.66 to WDG. The WDG would hold the money for purchase of the Elk River site, or a comparable site when one became available for purchase. Thus, appellants contend that the only mitigation actually imposed by the agreement was payment of a “modest” amount of money which cannot mitigate the loss of valuable wetlands sufficiently to excuse preparation of an EIS. But ultimately, Rayonier did purchase the Elk River site and conveyed it to the WDG on August 31, 1983. After the purchase and conveyance, representatives of the WDG, EPA, and FWS signed off Rayo-nier’s duties under the mitigation agreement as complete. Because Rayonier has completed purchase and conveyance of the mitigation lands, appellants’ fear that the mitigation plan would result merely in payment of money, with no provision for alternative wetlands no longer raises a live controversy amenable to judicial resolution. Thus, we hold that appellants’ argument based on the contingent nature of the mitigation agreement is moot. Appellants’ claims based on the mitigation agreement are necessarily limited, therefore, to whether the Elk River site adequately mitigates Rayonier’s fill activity so as to excuse preparation of an EIS. In this regard, appellants apparently offer a strictly legal argument that the mitigation agreement is insufficient because the regulations do not allow an EIS to be excused by mitigation accomplished “off-site.” We disagree, and answer that narrow question by holding that mitigation relating to a different parcel of land than that directly affected by a project may under appropriate circumstances constitute mitigation that serves to relieve the Corps of the obligation of preparing an EIS. The regulations explicitly allow off-site mitigation: Such conditions may be accomplished on-site, or may be accomplished off-site for mitigation of significant losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment. 33 C.F.R. § 325.4(a)(3). Further, the CEQ regulations define mitigation as including “compensat[ion] for the impact by replacing or providing substitute resources or environments.” 40 C.F.R. § 1508.20(e) (emphasis added). The regulations do not indicate, however, whether such off-site mitigation can relieve the Corps of preparing an EIS. Yet, neither do the regulations automatically require preparation of an EIS when mitigation is provided off-site. The regulations require that an EIS be prepared for all civil works activities “when the proposed action is expected to have significant effect upon the quality of the human environment,” 33 C.F.R. § 230.-11, and mitigation measures may be considered in determining whether preparation of an EIS is necessary. Considering the regulations’ explicit approval of off-site mitigation, we see no reason why off-site mitigation cannot be considered in determining whether to prepare an EIS, just as on-site mitigation. Accordingly, the Corps was entitled to consider the impact of the substitute wetlands envisioned by the mitigation plan in determining whether the permit activity required an EIS. The Corps concluded that with the mitigation here involved, no EIS was necessary. Appellants do not specifically attack the adequacy of the Elk River site, therefore we must conclude that the Corps' decision not to prepare an EIS was reasonable. Our holding obviates discussion of appellee’s argument that appellants have waived their NEPA claim. III. CONCLUSION We conclude that the district court properly limited its review of the Corps’ decision to the administrative record, that the Corps' decision to issue Rayonier a section 404 permit was not arbitrary and capricious, and that the Corps’ decision not to prepare an EIS was reasonable. Accordingly, we affirm the decision of the district court. AFFIRMED. . Appellants are various environmental groups and when referred to collectively are called “Appellants." . In 1977, the Corps’ regulations changed pursuant to the court’s order in Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C.1975), in which the court held that Section 404 jurisdiction extended to cover all navigable waters of the United States. . The mitigation agreement, incorporated into Rayonier’s Section 404 permit, reads: 1. ITT Rayonier, Inc., (ITT) and a resource agency committee (representatives of the US Environmental Protection Agency; US Department of the Interior, Fish and Wildlife Service; US Army Corps of Engineers; and the Washington Department of Game (WDG)), representing the State of Washington, have agreed that land mitigation for ITT’s unauthorized fill in Bowerman Basin, Grays Harbor, should involve purchase of a portion of a 66-acre property located at the Elk River in South Bay, Grays Harbor. This Elk River site is predominately high salt-marsh that was converted to pastureland by placement of a dike and tide gates. The terms of the mitigation agreement are described below. Issuance of a Department of the Army permit shall initiate the timing of the agreement terms. 2. ITT will pursue the purchase of 17.0 acres of Elk River site and will transfer the title of this land to WDG. 3. If the land purchase has not been accomplished within 6 months of the date of the Department of the Army permit, ITT agrees to make available to the WDG (within 30 days written notice) the total sum of $25,500 for the purpose of purchasing 17.0 acres of the Elk River site. These funds will be held by ITT and will be available to WDG for up to an additional 3 years. ITT agrees to increase the total sum by 8 percent per year (compounded annually) as long as the funds are in their possession. Funds not required for purchase of the 17.0 acres at the Elk River site will be retained by ITT. WDG may request and use the funds for purchase of mitigation land in Grays Harbor other than the Elk River site subject to approval by ITT. 4. If the mitigation lands have not been purchased after 3.5 years (6 months plus 3 years per above terms), ITT agrees to transfer a total sum of $32,122.66 to WDG. WDG agrees to use these funds for purchase and preservation of coastal wetlands in Grays Harbor. . Several agencies expressed similar concern over the mitigation agreement. The National Marine Fisheries Services recommended that the permit be conditioned to require consummation of the property title transfer. The Environmental Protection Agency concurred, stating: Although EPA supports this Agreement, we understand that ITT intends to purchase the 17 acres of wetlands only upon issuance of the permit. The current public notice does not identify a mechanism to assure the purchase or reimbursement of funds to the WDG should the land purchase fail. The issued permit should therefore contain a provision to assure compliance with the mitigation agreement. The U.S. Fish and Wildlife Service also suggested that the permit for this project be conditioned to require the proposed mitigation. . Appellants do not appeal the court’s summary judgment on claim six, brought under the Endangered Species Act, 16 U.S.C. §§ 1531 and 1533. After entry of judgment, Rayonier moved for an award of attorneys’ fees. The court denied the motion, which order Rayonier does not appeal. . Appellants sought to depose Corps decision-makers to determine whether the Corps “independently reviewed data submitted by Rayonier," and to find out: What was the ‘other pertinent information’ cited by the Corps in addition to Rayonier’s June 22, 1981 report (AR 594)? Did the Corps review the leachate study cited by Rayonier in its Statements of Findings, but which is not in the record (AR 584)? Did the Corps consider Dr. Herman’s study regarding the spring migration shorebird use of Grays Harbor, which was funded by and submitted to the Corps but again was not part of the record (CR 39, Ex. A)? Why did the Corps issue a permit without following through on its previous requests for a leachate control study (AR 263), for implementation of a water quality monitoring program (AR 590), and implementation of the mitigation plan prior to issuance of the permit (AR 521)? Appellants’ Brief, page 39. Here, the only apparent justification for this discovery might be to assist the court in determining whether the Corps independently reviewed the data supplied by Rayonier. As stated below, we believe the present record discloses that the Corps met its obligation to independently verify. . 33 C.F.R. § 320.4(a)(1) provides: (a) Public interest review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impacts which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so the conditions under which it will be allowed to occur, are therefore determined by the outcome of the general balancing process. That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered including the cumulative effects thereof. Among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people. For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency’s 404(b)(1) guidelines. Subject to the preceding sentence and any other applicable guidelines or criteria (see §§ 320.2 and 320.3), a permit will be granted unless the district engineer determines that it would be contrary to the public interest. . Appellants argue that "heightened” review is appropriate here because “[t]he record makes clear that the Corps ... changed its mind on all of these points and decided to issue a § 404 permit.” Appellants’ Brief, page 27. But all four cases relied upon by Appellants permitted heightened review only when an administrative agency specifically reversed a formal prior decision or regulation. See Baltimore & Annapolis R.R. Co. v. Washington Metropolitan Area Transit Commission, 642 F.2d 1365, 1370 (D.C.Cir.1980) (agency must justify departure from a twelve year old order regarding jurisdiction); Montana Power Co. v. EPA, 608 F.2d 334, 348 n. 27 (9th Cir.1979) (EPA's deviation from prior decision not subject to heightened scrutiny because not deviation from "long established practice”); ASG Industries, Inc. v. United States, 548 F.2d 147, 154 (6th Cir.1977) (higher showing required when agency adopts findings of fact of administrative law judge but reverses conclusions of law); Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971) (agency must explain modification of established precedent). That is not the case here— the "decisions" reversed by the Corps were not long-standing policy or even formal decisions— but initial conclusions at the outset of a long administrative investigation. . Also, some courts have held that a finding of water dependency is not a prerequisite to issuance of a section 404 permit, but only a factor to consider in the application process. See 1902 Atlantic Ltd. v. Hudson, 574 F.Supp. 1381, 1398 (E.D.Va.1983). Cf. Louisiana Wildlife Federation v. York, 761 F.2d 1044, 1047 (5th Cir.1985) (non-water dependent activity necessitates a more persuasive showing than otherwise). Under this rationale, if the Corps incorrectly determined that Rayonier’s fill activity was non-water dependent, reversal of the summary judgment would not be automatic. . Appellants attack the ‘‘integrated complex” rationale as an attempt to "bootstrap” all activities at Rayonier’s sorting yard onto the water dependency of the loading dock, and intentionally inconsistent. Appellants’ Brief, page 34. But it is clear, and Appellants’ apparently do not dispute, that storage of logs for export is most efficiently done near the docksite. Storage of logs for domestic use is not water dependent, but efficiency dictates that the storage function not be divided, because logs are not initially segregated between domestic and export. The Corps’ decision, therefore, is neither irrational nor contradictory. . 40 C.F.R. § 230.10(a)(1) further provides: (1) For the purpose of this requirement, practicable alternatives include, but are not limited to: (i) Activities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters; (ii) Discharges of dredged or HU material at other locations in waters of the United States or ocean waters____ . The regulations in force at the time of the issuance of the permit placed the burden on the applicant to supply information regarding water dependency and the feasibility of alternative sites: The applicant must provide sufficient information on the need to locate the proposed activity in the wetland and must provide data on the basis of which the availability of feasible alternative site can be evaluated. 33 C.F.R. § 320.4(b)(4) (1983). . For example, the EPA concurred with Rayo-nier’s June 22, 1981 report which concluded that no practicable alternative to the fill site existed. . Appellants argue that closer scrutiny of the district court's ruling is required because the lower court adopted the order proposed by ap-pellees verbatim. Although the district court’s findings of fact and conclusions of law draws heavily upon that submitted by appellees, the two are not the same. The portions dealing with the NEPA claims are significantly different. Further, even if the two were identical, we do not see that that would require heightened review. Certainly the authority cited by appellant does not stand for that proposition. See Rickards v. Canine Eye Registration Foundation, Inc., 704 F.2d 1449, 1453 (9th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983), (fact that magistrate adopts findings prepared by the prevailing party does not necessitate de novo review). . Appellants also object to the agreement on the ground that it was not part of the original proposal and was not imposed by statute or regulation. Appellants rely on the Council on Environmental Quality (“CEQ”) document called the "40 Questions" in support of this proposition: Mitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal. As a general rule, the regulations contemplate that agencies should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement. 46 Fed.Reg. 18,026, 18,038 (1981) (40 Questions Document). But, appellants’ reliance on this document is misplaced because courts uniformly have held that the CEQ forty questions document is not a regulation, but merely an informal statement and is not controlling authority. See State of Louisiana v. Lee, 758 F.2d 1081, 1083 (5th Cir. 1985), cert. denied, — U.S.-, 106 S.Ct. 1259, 88 L.Ed.2d 570 (1986); Cabinet Mountain Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d at 682. Appellants’ assertion that the 40 questions document is entitled to "substantial deference” in this circuit is incorrect. The cases they cite state that only the CEQ’s NEPA regulations are binding; the “Forty Questions” publication, however, is not a regulation. See, e.g., Save Our Ecosystems v. Clark, 747 F.2d 1240, 1245 (9th Cir. 1984); Southern Oregon Citizens Against Toxic Spray, Inc. v. Clark, 720 F.2d 1475, 1478 (9th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984). Nevertheless, the mitigation plan was part of the original proposal because it was included in the original permit application. Appellants’ interpretation of "original proposal” as being when Rayonier first began to fill the wetland illegally is implausible and unsupported. Even if the original fill activity constituted the "original proposal," the Corps would be justified in considering the mitigation agreement as a basis for not requiring an EIS. As stated by the District of Columbia Circuit, an EIS is not required if "the proposal is modified prior to implementation by adding specific mitigation measures which completely compensate for any possible adverse environmental consequences stemming from the original proposal." Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d at 682. The Corps properly considered the effect of the mitigation agreement in deciding not to require an EIS. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at 987. . It is unclear exactly what appellants are contending. In support of their motion for summary judgment below appellants did argue that "significant adverse impacts can[not] be offset in any circumstances by ‘mitigation’ measures which do not mitigate or reduce the identified impact but rather attempt to compensate for it elsewhere ... the fact that compensation is provided elsewhere does not mean the Corps can close its eyes to the obviously unaltered significant impacts of the fill.” Appellants further argued in opposition to Rayonier’s motion for summary judgment that “Even if the Elk River purchase had been incorporated into the permit as a firm condition, the Corps’ contention that no EIS need be prepared was highly questionable." Appellants’ vague objections to the nature of mitigation virtually disappear from their brief on appeal, wherein they frame the issue presented as: Did the U.S. Army Corps of Engineers unreasonably decide not to prepare an environmental impact statement [EIS] for a wetlands filling project that it determined would have "significant” and "unacceptable” adverse impacts, where the Corps relied on a "mitigation plan” which only required a payment of money from the applicant? Appellants' Brief, page 1 (emphasis added). The only clear reference in the brief to the adequacy of off-site mitigations appears at page 17, where appellants claim that "Neither the purchase of the Elk River Site nor payment to the Game Department are in any way related to Rayonier’s 18-acre fill." Id at 17. Nevertheless, the issue of whether off-site mitigation may be used to excuse preparation of an EIS was raised at oral argument, and we feel compelled to address it. . We thus do not consider whether or under what circumstances off-site mitigation should be weighed or evaluated differently from on-site mitigation. There tire obviously significant differences between the two, but no issue has been presented here regarding any possible different legal test for EIS purposes.

Sierra Club v. United States Army Corps of Engineers

CARDAMONE, Circuit Judge: A change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief. This case is capsulized in that solitary simile. Following review during a 30-day trial of a remanded administrative proceeding, the United States District Court for the Southern District of New York (Griesa, J.) entered a judgment in favor of plaintiffs, Sierra Club and others on August 8, 1985. That judgment declared null and void a landfill permit for the West Side Highway Project (Westway) issued by the U.S. Army Corps of Engineers (Corps) on February 25, 1985 and funding approvals for Westway granted by the Federal Highway Administration (FHWA) on March 18, 1985. The judgment also permanently enjoined defendant New York State Department of Transportation (State) from construction of Westway. In its 132-page opinion the district court found that the Corps’ decisionmaking process had violated the National Environmental Policy Act (NEPA), the Clean Water Act and court orders previously issued in 1982. From this judgment the Corps, FHWA and the State appeal and an expedited hearing was held before us on August 29, 1985. We affirm the district court’s conclusion with respect to the inadequacy of the federal defendants’ Final Supplemental Environment Impact Statement (FSEIS), but reverse the grant by the district court of a permanent injunction and remand the matter to the federal defendants. To put this case in proper perspective, we outline briefly its chronology, prior legal proceedings, actions taken on remand and the opinion below. I Background A. Early Chronology and Prior Legal Proceedings The highway portion of Westway presently proposed contemplates a mostly underground six-lane highway extending from the Battery to 42nd Street bordering the Hudson River on the west side of Manhattan. Approval of Westway as a link in the interstate highway system made New York State eligible for 90 percent federal funding for the project. The redevelopment project envisions a 93 acre park, planted on a roof covering the highway, together with extensive residential and commercial development. The total cost of the project is estimated to be 2 billion dollars and requires that 242 acres of the Hudson be landfilled to complete it. The selection of the Westway project resulted from a process of lengthy study and consultation that began in late 1971 when the City and State of New York requested approval of the West Side highway corridor as part of the Interstate System. That process included discussion with a broad range of State and City agencies and community groups, not only concerning alternatives to the dilapidated West Side Highway, but also about methods of coordinating the highway reconstruction with redevelopment in the deteriorating pier and shoreline areas on the west side of Manhattan. In April 1974 a draft environmental impact statement (EIS) was circulated for public review. Extensive public hearings were held during the following six-month period for comment, and five alternatives were identified. In January 1977 a Final EIS (FEIS) was approved that selected Westway as the preferred alternative. Later in 1977 the State filed an application with the Corps for a dredge-and-fill permit that was issued on March 13, 1981. Litigation brought to challenge the permit’s issuance has been before us previously. Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir.1983); Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir.1982). In these two decisions we upheld essentially the district court’s conclusion that the 1977 FEIS— which described the Westway area as a “biological wasteland” (suggesting no fish lived there) — had failed to reveal to the public the possible importance of the site as a winter habitat for juvenile striped bass. Action for Rational Transit v. West Side Highway Project, 536 F.Supp. 1225, 1229 (S.D.N.Y.1982). At that time many experts believed the juvenile striped bass used the Westway landfill area as an “overwintering” habitat — a place where these young fish remained more or less constantly throughout the winter months. 701 F.2d at 1024; 536 F.Supp. at 1246-1247. Thus, in orders dated April 14 and July 23, 1982 the district court enjoined most construction and many other activities related to Westway and set aside the 1981 landfill permit granted by the Corps and the funding approvals granted by FHWA. The district court in its April order included a- provision requiring the Corps to “keep records of all activities, deliberations, and communications (including communications with the FHWA and any other federal official or agency) which occur in relation to [the Westway] permit application.” On appeal, we affirmed “the unusual but appropriate” record-keeping order and directed the federal defendants “to make their own independent evaluations” of the fisheries issue. Sierra Club v. United States Army Corps of Engineers, 701 F.2d at 1048. B. Remand On April 22, 1982 the State again applied to the Corps for a landfill permit for West-way. In October 1982 the Corps convened a workshop of experts to discuss whether and what type of further study was necessary to resolve the question of the fishery habitat. This workshop recommended that a 17-month analysis be undertaken and that the program include various habitat studies. In July 1983 a second workshop of experts was called to assess the need for additional fisheries studies. Participants at that workshop were in agreement that determining the severity of Westway’s effect on the striped bass was a matter beyond the state of the art. Despite this uncertainty, on September 13, 1983 a decision was made by the Corps’ New York District Engineer to conduct two winters of additional study to determine Westway’s impact on the Hudson River bass. The Governor of New York appealed this decision to the Secretary of the Army, who directed the Corps’ Chief of Engineers to determine whether a two-winter project was necessary. A resulting task force report caused the Secretary to decide on December 15, 1983 that although a Supplemental Environmental Impact Statement for Westway could be prepared with existing information under the worst-ease regulations, the Corps’ New York District Engineer should proceed with a study, limited to one winter — or four months — rather than the 17 months the workshop had recommended. On May 28, 1984 the Corps and FHWA published a Draft Supplemental Environmental Impact Statement (DSEIS or draft report). The DSEIS concluded that the proposed Westway project landfill would cause a significant loss of habitat to Hudson River juvenile striped bass. It stated that such loss would be a “significant adverse impact to the Hudson River Stock of this species.” Though not critical, the SEIS continued, Westway would likely cause “long-term repercussions” resulting in “depressed population levels for the foreseeable future.” That harm could be amplified by other projects, e.g., Battery Park City and New Jersey’s Harbor Drift, and “the danger to the stock and its ability to recover from the Westway loss could ultimately hinge on what direction these other proposals take.” Finally, the draft report stated it would be “imprudent to consider any such habitat loss as projected by the Westway landfill to be either minimal, insignificant, or sustainable at current population levels.” On June 26 and 27, 1984 the federal defendants held a public hearing on the DSEIS, at which testimony was received from hundreds of persons, including representatives of the plaintiffs and federal, state and city officials. During the following 45-day comment period, the Corps and FHWA received numerous additional comments from concerned parties. Significantly, from the May 1984 publication of the DSEIS to the November 1984 publication of the FSEIS no new data was collected. In late November 1984 after having reviewed all of the comments received on the DSEIS and having completed its analysis, the Corps issued a Final Supplemental Environmental Impact Statement (FSEIS or final report). In that final report the Corps concluded that the perceptible long-term decline in stock would be difficult to discern from normal yearly fluctuations and would have only “minor impacts” on the fishery. Even in a worst case scenario, the Corps continued, the consequence of the landfill would still be “insufficient to significantly impact” the commerical fishery and “though persistent, the magnitude of the depressed population is likely to be relatively small ... and not a critical (or even minor) threat to its well being, nor to that of the commercial/recreational fishery.” After publishing the FSEIS, the Corps solicited and received further comments that it considered before making a final permit decision. On January 24, 1985 the Corps Engineer for New York issued his Record of Decision in which he announced his intention to grant a permit for West-way’s construction. On February 25 the Corps issued a new landfill permit for Westway and on March 18 the FHWA published its Record of Decision and also reissued its funding approvals. C. Opinion Below On April 18, 1985 plaintiffs filed a Supplemental Complaint in this action alleging that the landfill permit issued for West-way’s construction was invalid. The U.S. Environmental Protection Agency (EPA) was added as a defendant. Judge Griesa held a seven-week trial from May 20 to July 12, 1985 to review the agencies’ decisions. At trial, the federal officials involved in issuing the permit and their key advisors were questioned on virtually every aspect of the decisionmaking process, including the substance of internal deliberations and their thought processes. The district court also heard testimony from several witnesses offered as experts, some of whom supported the Corps’ fisheries analysis and others, presented by plaintiffs, who criticized it. On August 7, 1985 Judge Griesa issued his opinion in which he ruled in plaintiffs’ favor on all claims raised by them against the Corps and FHWA. According to the district court’s summary of its findings, defendants had failed adequately to disclose the nature and purpose of Westway and had failed adequately to support their conclusion that the impact on the striped bass fishery would be minor. The district court held that the Corps’ finding that the landfill would have a minor impact on the striped bass was arbitrary because the Corps had: (a) no reasoned basis for the reversal of its analysis of impacts from the DSEIS to FSEIS; (b) improperly relied on the government’s expert; (c) failed to collect sufficient data to support its analysis; and (d) failed adequately to consult and give full consideration to the views of federal fishery agencies. As noted at the beginning, the central issue on which this case hinges is the Corps’ denial of the change that clearly emerged from its draft report to its final report. The district court concluded that the denial was illogical and that it failed as an explanation. Although we agree with the district court’s ultimate conclusion, we must consider the arguments raised by the federal defendants and the State. They claim that the district court improperly conducted a de novo review on the merits and improperly substituted its judgment for that of the Corps on the complex fisheries issues. Additionally, defendants assert that the trial court erred in requiring the Corps to adopt the views of federal fishery resource agencies, and in finding that the federal defendants had not disclosed information relating to practicable alternatives. These claims have merit. There were errors in the district court’s approach to its review of the administrative record that require discussion. II Statutes Involved Before analyzing these matters, we examine the controlling law. This litigation involves two federal statutes: NEPA and the Clean Water Act. The implementation of the legislative objectives expressed in these Acts is entrusted to the executive branch — in this case the federal defendants. We examine first the objectives of these legislative enactments and the scope and limitations of agency power to administer them. A. NEPA NEPA is designed to “encourage productive and enjoyable harmony between man and his environment ... [and to] prevent or eliminate damage to the environment____” 83 Stat. 852, 42 U.S.C. § 4321. Section 102(2)(C) of NEPA sets forth procedures to insure the achievement of these substantive purposes. It provides: The Congress authorizes and directs that, to the fullest extent possible ... (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. Congress’ aim under § 102(2)(C) is to force federal agencies to consider environmental concerns early in the decisionmak-ing process so as to prevent any unnecessary despoiling of the environment. The “detailed statement by the responsible official” is procedurally required because its presence evidences the fact that environmental consequences were factored into the planning stage of agency deliberation. Andrus v. Sierra Club, 442 U.S. 347, 350-51, 99 S.Ct. 2335, 2337-38, 60 L.Ed.2d 943 (1979). The object is for an agency to reach a decision only upon which it is fully informed and only after the decision has been well-considered. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The “detailed statement” thus helps a reviewing court to decide whether an agency has met that objective. It serves further as an environmental full disclosure law so that the public can weigh a project’s benefits against its environmental costs. To that end it must be written in clear, understandable language. Perhaps most important, the detailed statement insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug. Silva v. Lynn, 482 F.2d 1282, 1284-85 (1st Cir.1973). The Council on Environmental Quality (CEQ) has adopted regulations implementing NEPA contained in 40 C.F.R. Parts 1500-1508. The Corps has promulgated regulations set forth in 33 C.F.R. Part 230 that are designed to supplement the CEQ final regulations. Under § 230.11 of the Corps’ regulations a draft EIS is required. A draft EIS must “fulfill and satisfy to the fullest extent possible the requirements established for final statements in section 102(2)(c) of the Act.” 40 C.F.R. § 1502.-9(a). B. Clean Water Act Policy goals similar to those contained in NEPA are expressed in the Clean Water Act of 1977, particularly for the protection and propagation of fish. 33 U.S.C. § 1251(a)(2). This Act grants authority to the Secretary of the Army, after notice and opportunity for public hearings, to issue a permit for dredged or fill material to be discharged into navigable waters. 33 U.S.C. § 1344(a). Regulation of the discharge of dredged or fill material has been entrusted to the Corps and to the EPA. The Corps has the responsibility for issuing or denying permits for such discharge. See 33 U.S.C. § 1344(a). The EPA develops guidelines governing the issuance of a permit, see id. § 1344(b)(1). The EPA promulgated the 404(b)(1) Guidelines that are set forth in 40 C.F.R. Part 230. Under these regulations, if a proposed landfilling does not comply with the Guidelines, the Corps must deny a permit. 49 Fed.Reg. 39479 (Oct. 5, 1984) (adding section 323.6(a) to 33 C.F.R. Part 323). The Guidelines further prohibit landfilling “unless it can be demonstrated” that the activity will not have an “unacceptable adverse impact” on the aquatic ecosystem. See 40 C.F.R. § 230.1(c). Under the regulations, “unacceptable adverse effect” is defined as an “impact on an aquatic or wetland ecosystem which is likely to result in ... significant loss of or damage to fisheries____” Id. § 231.2(e). Thus, to comply with the Guidelines, ap applicant must demonstrate that the proposed project will not likely result in significant loss of or damage to fisheries. Ill Scope of Review Since judicial review is not specifically provided for under either NEPA or the Clean Water Act, review is under the Administrative Procedure Act, 5 U.S.C. § 706. Under that law challenged agency action must 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). A. Review Under NEPA When reviewing an administrative decision made under NEPA, the purpose is to ensure that the agency has considered the environmental consequences of its proposed action. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980). To conform with NEPA, a reviewing court need only find that the agency considered the environmental consequences of its proposed actions. An agency making a decision under this statute does not have to accord environmental concerns any more weight in the decisionmaking process than other appropriate concerns. If an agency decides that the economic or social benefits of a project outweigh its environmental costs, its choice must be affirmed so long as the procedural requirements of NEPA were followed, that is, environmental consequences were considered. Id. at 227, 100 S.Ct. at 499. In weighing whether an agency has met NEPA’s expressed objectives the test is not whether the district court, this Court or even the Supreme Court would have reached the decision under review had we been decisionmakers within the agency. Rather, the judicial role is relegated to affirming the agency’s decision so long as a rational basis is presented for the decision reached. Bowman Transportation Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974). Consistent with our concept of federalism, a reviewing court’s scope is so limited because it may not “interject itself within the area 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 n. 21, 49 L.Ed.2d 576 (1976). B. Review Under the Clean Water Act The purpose of judicial review under the Clean Water Act differs slightly because of its enabling statute. Like NEPA, the Clean Water Act requires that an environmental concern — here the impact on the aquatic environment — be considered at an early enough stage in the policymaking process to affect the agency decision. But the Clean Water Act provides for a more intrusive power of review, one whose purpose is to prohibit agency action whenever certain environmental impact thresholds are met. Instead of simply insisting procedurally that the agency weigh environmental concerns, the Clean Water Act specifically prohibits an agency from sanctioning a project that it finds will have a significant adverse impact on the marine environment. Therefore, when an agency approves a project that the record before a reviewing court reveals will have a significant adverse impact on marine wildlife, the agency determination must be reversed. C. Review in General In the past, as Dean Landis noted, there may have been a sense of contest between courts and administrative agencies because courts are not unaware that vast areas of government formerly within their control have been handed over to administrative agencies. J. Landis, The Administrative Process, 123 (1938). Fact-finding by trained and specialized administrators, provided that it is reasonable looking at the whole record, is now firmly established. Congress has excluded the courts from the fact-finding process and any attempt to turn the clock back and renew the contest by reinsinuating the judiciary into the area now reserved to executive expertise should be sharply rejected. The power of a court in effectuating the purpose of judicial review generally is narrowly drawn. Courts must defer to the action taken by the agency, which is presumed to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). Within these bounds, a reviewing court must undertake a searching inquiry to ascertain whether the agency has given reasons that connect the facts it found to the choice made. To permit intelligent judicial review an agency must indicate the basis on which it exercised its expert discretion. SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462-63, 87 L.Ed. 626 (1943). Normally, an agency’s action is held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation contrary to the evidence before it, or its explanation — as is apt here — is so implausible that it cannot be ascribed to differing views or agency expertise. See Motor Vehicles Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). While a reviewing court may not supply the basis for the agency’s decision — lest it interfere with matters entrusted to the executive branch — it will uphold a decision of less than ideal clarity if the “path which [the agency] followed can be discerned.” Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945). See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). With the recited rules of review in mind, we discuss the issues raised on this appeal. IV De Novo Review By The District Court Title 5 U.S.C. § 706(2)(F) requires that “[t]he reviewing court shall — hold unlawful and set aside agency action, findings, and conclusions found to be — unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” “[De] novo review is appropriate only where there are inadequate factfind-ing procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.” Camp v. Pitts, 411 U.S. 138, 141-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106 (1973) (per curiam) citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 415, 91 S.Ct. at 823. This case raises neither of these two instances. The permit determination is not adjudicatory and the Sierra Club did not bring this litigation in support of the Corps’ actions. In contrast plenary review, which is more limited than de novo review, is permitted when the agency’s record is so sparse as to make judicial review ineffectual. Courts cannot intelligently perform their reviewing function if an administrative record is inadequate, incomplete or, as here, inconsistent. Pitts, 411 U.S. at 142, 93 S.Ct. at 1244. As a consequence, through plenary review a district court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Id. at 143, 93 S.Ct. at 1244. See also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825; County of Suffolk v. Secretary of Interior, 562 F.2d 1368 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); Natural Resources Defense Council Inc. v. Callaway, 524 F.2d 79 (2d Cir.1975); Environmental Defense Fund v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981). The district court here undertook de novo review. By allowing the plaintiffs to call their own expert witnesses, and by substituting those witnesses’ interpretation of the data for the views of the experts that the Corps had relied upon, the district court moved from a plenary “filling in” of holes in the Corps’ presentation to a de novo hearing on the fisheries issue. Ordinarily, such de novo review would be an error requiring reversal. We do not approve such review by a district court whenever it believes that an administrative record is incomplete. But this abuse of discretion is not reversible error in the instant case. There are two reasons for us to so conclude. First, through its own actions, the Corps violated the prior record-keeping order; this made judicial review ineffectual and further weakened the Corps’ credibility regarding its decisions on Westway. Second, absent an explanation for the change from the DSEIS to the FSEIS, the administrative record did not support the granting of a permit, inasmuch as the DSEIS recited the significant adverse impact to the striped bass making the permit’s issuance plainly in violation of the Clean Water Act. Further, we observe that if the FSEIS had been published as the initial product, we might have concluded that it did address the issues and presented a reasoned judgment that the landfill impact of West-way would have a minimal effect on the juvenile striped bass. But we are not writing on a clean slate and are unable to blind ourselves to what happened in the past. After our 1983 decision upholding rejection of the first FEIS, we directed the Corps to reexamine the striped bass problem and to keep careful records. Again, if the Corps had kept such records and in reassessing the data had found reasonable grounds to reach this remarkably changed conclusion, it might have been persuasive. Instead, the Corps attempted to convince the district court and us that there was no change, and that the language of the draft report and the final report meant the same thing. The Corps’ attempted to defend this position by arguing that in using the word “significant” in the DSEIS it was employing a term of art that is defined as “measurable but minor.” Yet the 404(b)(1) Guidelines state that: Except as provided under section 404(b)(2), “no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States ... Under these Guidelines, effects contributing to significant degradation ... include: (1) Significantly adverse effects of the discharge ... on human health or welfare, including but not limited to effects on ... fish, shellfish, wildlife, and special aquatic sites. (3) Significantly adverse effects ... on aquatic ecosystem diversity, productivity, and stability. Such effects may include, but are not limited to, loss of fish and wildlife habitat____” 40 C.F.R. § 230.10(c) (emphasis supplied). Plainly, the word “significant” as used in the regulatory context under which the Corps operates means important, major or consequential. Moreover, the use of the word “significant” signals that the issuance of a landfill permit would be a violation of the Clean Water Act. No court should allow the use of semantics to succeed in an attempt at glossing over an environmental violation. Neither Judge Griesa nor we are required to defer to the Corps’ Orwellian-like “doublespeak,” particularly when it is remembered that a primary purpose of these reports is to inform the public and provide a basis for future environmental decisions by other governmental agencies. Thus, the change from “significant adverse impact” to “minor impacts” required an explanation and that explanation should have been in the final report. Neglecting to include it illustrates again the insight of Franklin’s maxim that “a little neglect may breed great mischief.” B. Franklin, Maxims ... Prefixed to Poor Richard’s Almanac (1758). In sum, once the district court was satisfied that there was an illogical change, unexplained in the final report, and unjustified by the administrative record when read in the context of the history of these proceedings, the district court should at that point have remanded the matter to the Corps to revise its FSEIS by including an explanation. At most, the district court should have held a brief plenary hearing to obtain an explanation. Thus, there was no need for the protracted evidentiary hearing conducted by the trial court, particularly in view of the fact that the result reached after such lengthy trial was the same as that which could have been reached earlier. But regardless of the propriety of its entering upon a lengthy trial de novo, we agree with the district court’s conclusion that the FSEIS did not satisfy the requirements of either NEPA or the Clean Water Act. Y Substitution by the District Court of its Judgment Here the district court impermissibly substituted its judgment for that of the Corps and the FHWA. In some respects the Corps brought this on itself. In 1977 when it authored its first final EIS, it adopted a conclusion that there was no Hudson River fish life in the proposed Westway landfill area. To say the least, this was an understatement. More accurately it could be characterized as false. The federal defendants were properly charged with this deviation from their duty to present facts, not fiction, in support of their choice. The Corps’ careless presentation prompted the district court in its April 14, 1984 order to take the unusual step of directing it to keep records of all “activities, deliberations and communications” during any reconsideration of the Westway landfill permit. Perhaps the trial court’s dissatisfaction with the Corps’ failure to abide by the earlier record-keeping order drew the trial judge too deeply into the executive agency’s privileged internal processes. Whatever the reason, the district court exceeded its power of review by evaluating and finding the Corps’ expert witness not credible. It took testimony from other purportedly expert witnesses and found that they possessed a “high degree of expertise” and that their knowledge of the fisheries issue was “profound” and in “sharp contrast” to the Corps’ expert. Moreover, when the Secretary of the Army decided to conduct a four instead of 17-month study of the bass, the trial court found it inadequate. But, the defendants’ decision that essentially balanced the quality of the data sought to be obtained against the cost of acquiring it, is one that lies peculiarly within the agency’s discretion. In undertaking to weigh the relative merits of scientific evidence on the fisheries issue and finding the study time inadequate, the district court improperly decided substantive issues and impermissibly interjected itself into an area reserved to the executive agency. VI Remaining Issues A. Consideration of the Views of the Resource Agencies In addition, it appears from the summary of its findings that the district court apparently concluded that the Corps failed to give adequate consideration to the views of the U.S. Fish & Wildlife Service, National Marine Fisheries Service, the U.S. Environmental Protection Agency and the New York Department of Environmental Conservation, the state agency responsible for fish and wildlife. All of these agencies were opposed to granting the landfill permit and recommended to the Corps that it be denied. The “public interest review” regulations require that the Corps give “full consideration” to these agencies’ views “in deciding the issuance, denial, or conditioning of individual or general permits.” 33 C.F.R. § 320.4(c). 49 Fed.Reg. 39482 (October 4, 1984). Under these regulations the Corps is not bound to agree with the conclusions reached by these resource agencies, but simply required to listen to and consider their views in the decisionmaking process. See, e.g., Corps of Engineers v. National Marine Service, Inc., 764 F.2d 445, 452 (7th Cir.1985); Sierra Club v. Alexander, 484 F.Supp. 455, 469-70 (N.D.N.Y.), aff'd without opinion, 633 F.2d 206 (2d Cir.1980). The trial judge recognized this when he stated that “the Corps was not required to accept the views of these agencies as binding, but serious consideration was warranted.” In this case, the Corps solicited the other federal and state resource agencies’ views, encouraged their participation in the remand process, and gave full consideration to their comments on both the DSEIS and FSEIS, all of which is evident from the detailed responses that the Corps prepared in assessing those agencies’ comments. Thus, that consideration called for under the cited regulations was given. We see no need to comment further on this issue since despite the district court’s statement it actually made no direct finding that the Corps did not seriously consider the contrary scientific opinions expressed by the resource agencies. In any event, the record is plain that it did. B. Disclosure of Information Relating to Practicable Alternatives to West-way The district court found that the FSEIS did not “fairly disclose the issue” of Westway to the public. The particular omission cited in the ruling was a presentation of whether vast sums of money should be spent to build a six-lane highway and redevelopment project as opposed to revitalizing an existing road for a modest sum ($46 million), with a substantial “trade-in” of federal funds to be used for mass transit. Under NEPA, exhaustive detail regarding reasonable alternatives is not called for, rather only the furnishing of that information needed to “enable those who did not have a part in [the EIS] compilation to understand and consider meaningfully the factors involved” is necessary. County of Suffolk, 562 F.2d at 1375. The short answer is that the FSEIS met NEPA’s test with respect to setting forth reasonable alternatives to the highway project. Although there were no reasonable alternatives suggested to the redevelopment aspect of Westway, a great deal has already been publicly reported on that score. In fact, this vigorously contested litigation over a proposed public works project of the scope and notoriety of West-way has generated paper by the ton and ink by the carload. To believe that the public has remained somehow uninformed about the alternative of a smaller-scale road with the possibility of trade-in funds in lieu of federal Westway funding is farfetched. As the trial judge found that reasonable alternatives were set forth in the FSEIS, even though he viewed them “by no means emphasized,” his responsibility on this issue ended. The further lengthy analysis, fact-finding and conclusions reached exceeded the district court’s boundaries of limited review with respect to an executive agency’s choice and, as such, constituted an abuse of discretion. VII Permanent Injunction We further hold that issuing an order permanently enjoining the construction of Westway was an abuse of the district court's discretion. It is not within the power of the judiciary to bar an executive agency from making administrative decisions, assuming full, good faith compliance with the requirements of NEPA and the Clean Water Act. No authority exists to support the granting of such drastic relief. On the contrary, the Supreme Court has repeatedly held that if an administrator’s action is not “sustainable on the administrative record ... then the ... decision must be vacated and the matter remanded ... [to the administrator] for further consideration.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. at 549, 98 S.Ct. at 1214; Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976) (per curiam); Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. at 1244. Since a court’s review of administrative choices under NEPA and the Clean Water Act focuses primarily on the procedural regularity of the decision, it is not for the courts to tell the executive branch what projects they may or may not consider or how much of the taxpayers’ money should be expended in an attempt to “get it right.” VIII Conclusion We affirm the district court’s conclusions that the proferred denial of the change from “significant adverse impact” in the DSEIS to the “minor impact” in the FSEIS was a post-hoc rationalization unworthy of belief by this Court and that the Corps had failed to provide any reasoned explanation for the change. Nonetheless, we do not agree with the dissenter that additional field studies of the Hudson River Fishery would be required before the Corps on remand could properly grant a permit. Perhaps a fresh look at the collected data could produce a clear, logical and good faith explanation for the change. Such an effort could be plausibly advanced as within the federal defendants’ discretion. Affirming the voiding of the permit may result in condemning the Westway project to oblivion. Some will cheer that distinct possibility; others will cry over the loss of projected public benefits. The State, having no part in the failure to keep the ordered records nor responsibility for preparation of the draft and final environmental reports, may count this decision a far-reaching loss. Whether this or any court is happy with the result we reach is a matter of little or no note. Under the statutory scheme and the Constitution, our concern is not with the fate of Westway. Congress has decreed that such a project may not proceed without an acceptable environmental impact statement. Congress’ intense concern with the environment is perhaps best capsulized in its belief that man and nature are so intimately connected that to significantly degrade the waters of a river threatens not only the fish, but ultimately man as well. Thus, to forge ahead with the project— gambling on the loss of this major east coast fishery resource — may result in even greater loss. In any event, the reasons given for issuing a permit for dredging and filling 242 acres of the Hudson River now used by juvenile striped bass at least as a transitory habitat, do not reasonably connect the data found by the federal defendants to the choice they made. Therefore, the decision to issue the permit was arbitrary and capricious. Accordingly, insofar as the judgment appealed from vacated the issuance of the federal defendants’ landfill permit and the associated funding, it is affirmed. Insofar as the judgment granted a permanent injunction, it is reversed. In view of the publicized time constraints facing the State of New York, this matter is remanded directly to the federal defendants for whatever action they may now deem advisable. The mandate of this Court shall issue forthwith.

Sierra Club v. United States Army Corps of Engineers

MANSFIELD, Circuit Judge (concurring in part and dissenting in part): The record demonstrates that Westway, a long-range project that may well be in the public interest, has ironically been “roadblocked” by the U.S. Army Corps of Engineers, the very ageney that might, if it had complied with its duties under the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), have paved the way for its construction. Despite the blueprint offered by our thorough analysis of its earlier errors, see Sierra Club v. United States Army Corps of Eng., 701 F.2d 1011 (2d Cir.1983) (Sierra Club), the Corps has simply repeated them upon remand, presenting us with all the aspects of a déjá vu. In its initial EIS, the Corps tried to sweep under the rug evidence indicating that there were “significant numbers of fish in the interpier area”, id. at 1023, and that the area might be an important fisheries habitat. Instead it described the site as a “biological wasteland”, id. at 1019. Then, after we remanded with directions to comply with NEPA and the CWA, it concluded in its DSEIS that the proposed landfill of the interpier area would have a “significant adverse impact” on the Hudson River fishery, 2 DEIS at 42. That conclusion would have required denial of a landfill permit under the CWA. 40 C.F.R. §§ 230.10(c), 231.2(e). Six months later, however, without any explanation or new relevant evidence, it turned full circle and concluded in its FSEIS that the impact would be “minor” and insignificant. 2 FEIS at 50-51, 65-66. This arbitrary, unreasoned flip-flop, exacerbated by the Corps’ defiance of our record-keeping order, clearly violated NEPA and the CWA. Indeed, the Corps has virtually repeated the remarkably similar failure to explain a dramatic swing in its views that we found to violate NEPA in Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79 (2d Cir.1975) (change of ocean site for dumping of dredged material). I agree that the proper remedy is not an injunction but a remand to the Corps for further proceedings in compliance with its statutory obligations. The Supreme Court has made it clear that if an administrator’s action is not “sustainable on the administrative record ... then the ... decision must be vacated and the matter remanded ... [to the administrator] for further consideration.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 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) (per cu-riam)). See also Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976) (per curiam). I must respectfully dissent, however, from the majority’s holding that the district court’s review of the Corps’ decision was entirely de novo and an abuse of discretion which may be excused only because of the Corps’ violation of our record-keeping order and the unexplained inconsistency between the DSEIS and the FSEIS. In my view, although a portion of the district court’s scrutiny of the Corps’ conduct was an improper de novo review, most of its examination was fully within its power, under the Administrative Procedure Act, to review an agency’s conduct for the purpose of determining whether the agency had complied with the procedural requirements of NEPA and CWA. “De novo ” review is substantive in character. It occurs when a court refuses to defer to an administrative body’s decision but, starting afresh, conducts an evidentia-ry hearing for the purpose of deciding what decision the agency should have reached. In essence the court substitutes its view of the merits for that of the agency. Camp v. Pitts, supra, 411 U.S. at 142, 93 S.Ct. at 1244; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971). A de novo review is permissible only “when the action is adjudicatory in nature and the agency fact finding procedures are inadequate [or] ... when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action.” Id. at 415, 91 S.Ct. at 823. See also Camp, supra, 411 U.S. at 142, 93 S.Ct. at 1244. It is not warranted by an agency’s “failure to explain administrative action.” Id. at 142-43, 93 S.Ct. at 1244. On the other hand, under NEPA and CWA a court is empowered to make a procedural or plenary review to insure that an agency has complied with each of the steps required of it by relevant statutes and regulations and “has taken a ‘hardlook’ at environmental consequences” of its actions. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). See also Sierra Club, supra, 701 F.2d at 1029. Implicit in that obligation is a duty to make an adequate compilation of relevant information, to analyze it reasonably and, perhaps most importantly, not to ignore “pertinent data.” Id. at 1029. A procedural review is called for when the administrative record or evidence proffered by others suggests that the agency has violated its basic duties under NEPA. It is triggered when the record (1) fails to disclose the reasons for the agency’s action, Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244; Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825; (2) fails to show that the agency obtained and adequately considered available, relevant, material evidence, Sierra Club, supra, 701 F.2d at 1029; or (3) demonstrates that the EIS contains some glaring sin of omission or other defect, County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). In considering whether the nature and depth of the agency’s investigation was adequate this court looks to a range of factors, including “(1) whether obtaining more detailed useful information on the topic ... is ‘meaningfully possible’ ... and (2) how important it is to have the additional information.” County of Suffolk, supra, 562 F.2d at 1378. In short, the court considers, among other factors, the importance and weight of the additional evidence, the difficulty and cost involved in obtaining it, and the extent to which it would be merely cumulative. Obviously, because a procedural review considers how the administrative record was developed and whether, once developed, it was complete, judicial scrutiny of the agency’s activities is not limited to the record alone. Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244; Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825. Rather, the courts may conduct “a thorough, probing, in-depth review” of what the agency did and why. Id. at 415, 91 S.Ct. at 823. To do so it may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary,” Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244, and “require the administrative officials who participated in the decision to give testimony explaining their action.” Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825. As we have recognized time and again: “[A]llegations that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept ‘stubborn problems or serious criticism ... under the rug’ ... raise issues sufficiently important to permit the introduction of new evidence in the district court ... in challenges to the sufficiency of an environmental impact statement ...” Citizens for Balanced Environment v. Volpe, 650 F.2d 455, 461 (2d Cir.1981) quoting County of Suffolk, supra, 562 F.2d at 1368). A procedural review, however, has firm borders. It is deep, but not broad. The court may, for example, judge the credibility of witnesses, but only as their testimony affects procedural issues. It may not substitute its view of the merits or of “the choice of action to be taken” for the agency’s. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) (per curiam); Vermont Yankee, supra, 435 U.S. at 558, 98 S.Ct. at 1219. It is the agency’s province to decide what the executive should do and the court’s function to insure that the decision was rooted in careful consideration of all relevant factors and reached only after the relevant evidence and agency’s rationale were put before the public. Sierra Club, supra, 701 F.2d at 1029. Applying these principles here, I cannot agree with the majority that Judge Griesa’s evidentiary hearing amounted entirely to an impermissible de novo review of the Corps’ conduct. (See Maj.Op. 1052). Indeed, if that were the case, Camp and Overton Park would require us to reverse his decision, not affirm it in substantial part. In my view the district court conducted a permissible procedural review of certain matters: (1) the Corps’ unexplained “flip-flop” in which it adopted a FSEIS that reached conclusions that were diametrically opposed to those stated in its DSEIS without any rational explanation for the about-face, (2) the Corps’ failure to follow its consultants’ almost unanimous recommendation that it obtain a 17-month, 2-winter study of the relevant fishery habitat before deciding whether Westway would have a significant adverse effect on the fishery; (3) the Corps’ failure to explain why it did not use the “overwintering” theory in its “worst case” analysis of fishery impact, and (4) the claim that the FSEIS made an inadequate disclosure of whether any alternatives existed that would provide the redevelopment benefits offered by Westway. On the other hand, I agree with the majority that Judge Griesa made an impermissible de novo review of whether the Corps failed to consult adequately with the United States Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and the New York Department of Environmental Conservation. Although I agree with the majority opinion’s analysis of the Corps’ failure to explain its radical change of mind between the DSEIS and FSEIS, I part company from the majority when it comes to the plaintiffs’ contention that the Corps’ failure to conduct a 17-month study constituted a failure to gather all data necessary to enable it intelligently to decide what impact Westway would have on the fishery. In my view this attack on the adequacy of the FSEIS is meritorious. With near unanimity, the Corps’ consultants called for, at least, a 2-winter study. Following the earlier remand of this case to the Corps, Malcolm Pirnie, Inc. was retained by the Corps to analyze existing fishery data with respect to the Westway area and to recommend whether additional fishery studies were needed to determine how many fish used that area and their movements. It produced a report recommending two studies: (1) a fish sampling program for a minimum of three years, and (2) a habitat survey for a minimum of one year. At meetings of the Corps, Malcolm Pirnie, Inc., the NMFS, the FWS and the Environmental Protection Agency (EPA), it was agreed that the study could be reduced to two winters and still gather enough data. The Corps then convened a workshop of leading experts in striped bass ecology, sampling design, statistics and hydro-acoustics to consider the matter and, after thorough review and further consultation with the FWS, NMFS and the EPA, it was the unanimous view of all that there should be a 17-month, 2-winter study of the fishery habitat during the period from December 1982 to April 1984, to determine how many fish used the Westway site and their movements. When the New York Department of Transportation objected to the proposed study, Col. Fletcher H. Griffis, District Corps Engineer, in July 1983 convened a second workshop of some 39 persons, including representatives of the Corps, FWS, NMFS, EPA, New York Department of Conservation, New Jersey Department of Environmental Protection and many of the independent experts who had attended the 1982 workshop. A majority of the participants approved the 1982 proposal for a 17-month, 2-winter study, which would commence in December 1983. The Governor of New York, however, registered his objection with the Secretary of the Army, and Col. Griffis’ decision to go forward with the study was in short order countermanded, without explanation, by the Chief of Army Engineers, based on the conclusion of a specially selected Task Force that did not include any of the experts who had favored the 2-winter study. Accordingly, the Corps was only permitted to make a study lasting through the remainder of the 1983-84 winter, i.e., from December 1983 to April 1984. If the Corps had implemented its own original 1982 proposal for a 17-month, 2-winter study, that study could have been completed by April 1984. Instead, the truncated study left crucial questions unanswered, demonstrating that the advocates of the 17-month study had been correct. The role Westway played in the bass’ life cycle, where the bass went when they were not in the area, and how often they used it, were left unresolved. Another winter’s study would have allowed the Corps to use tagging and recapture procedures to gather reliable data to replace the speculation with which it answered these crucial questions in the DSEIS and FSEIS. In my view, the Corps’ failure to obtain this pertinent evidence rendered its FSEIS inadequate, incomplete and a violation of NEPA. Perhaps the clearest illustration of how the Corps’ failure to get essential facts tainted the environmental impact statements was its elimination of the “overwintering” theory as a base for its “worst case” analysis. 40 C.F.R. § 1502.22(b)’s requirement that the Corps carry out a worst case analysis “requires [that] impact statements, at a minimum, contain information to alert the public and Congress to all known possible environmental consequences of agency action.” Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed.Reg. 18,026, 18,032 (1981) (answer to Question 20b) (emphasis in original). See also Sierra Club v. Sigler, 695 F.2d 957, 971-72 (5th Cir.1983). In preparing its worst case analysis, however, the Corps dismissed the possibility that bass overwinter in Westway and adopted the “migratory theory,” which assumed that the bass leave Westway and move out to sea in mid-winter. The Corps’ study, however, had found few juvenile bass in the areas to which they had supposedly migrated but showed, on the contrary, that significant numbers of the fish were in Westway throughout the winter. It is ludicrous to think that the Corps fulfilled its obligation to produce a worst case analysis when it rejected, in the face of such contradictory evidence, the possibility that the bass over-wintered in, rather than migrated through, Westway. The district court’s findings that the Corps did not give “full consideration” to the views of the FWS, NMFS and EPA, and that the FSEIS improperly enlarged the scope of Westway and failed to consider alternatives to its redevelopment aspects, stand on a different footing. With respect to the latter, Judge Griesa’s conclusion is at odds with the evidence. Whether one labels his review “de novo ” or “procedural,” his findings are not supported by substantial evidence but, on the contrary, are plainly wrong. In addition, the record reveals that the Corps considered the views of all other relevant agencies; Judge Griesa’s decision that its consideration was inadequate amounted to an impermissible substitution of his view for the discretion vested in the Corps. Lastly, I believe it will be well nigh impossible upon remand for the Corps, having already found in its DSEIS on the present record that Westway would have a “significant adverse impact” on the Hudson River fishery, to explain another about-face without obtaining additional evidence as to the quantity and movements of fish in the estuary. Some may view the resultant delay as an unfortunate blow to New York City’s future. If it is, the statutory provisions by which we are governed, as construed by the Supreme Court, leave little doubt that the remedy, short of further field study by the Corps, lies with Congress, not the courts.

Orleans Audubon Society v. Lee

E. GRADY JOLLY, Circuit Judge: I. A. This environmental suit involves a 466-acre tract of cypress-tupelo gum swamp located on the west bank of the Mississippi River in Jefferson Parish, Louisiana. The tract is bounded on the northeast by a residential subdivision known as Lincoln-shire, on the west by the Drill Hole Canal, a small artificial canal constructed during the 1960s, and on the east by a levee, on the other side of which runs the Millaudon Canal. The tract is surrounded by levees constructed in 1972 by the owner of the property at that time. In late 1972 or early 1973, the Drill Hole Canal, which previously had been a navigable waterway, was dammed, completing the ring of levees and impounding the tract so that it was no longer subject to tidal motion. In late 1976 or early 1977, C.I.T. Corporation became the owner of the tract through foreclosure and decided to proceed with the previous owner’s plans to convert the tract for residential use by draining and filling the area within the levees. In order to do so, C.I.T. began working with the Corps of Engineers to prepare the environmental impact statement needed to secure an after-the-fact permit for the closure of the Drill Hole Canal. See infra, part B. In late 1979, the Corps discovered two gaps in the levee at the closure of the Drill Hole Canal. After receiving assurance from the Corps that no permits were required for the work, C.I.T. repaired the two gaps. In 1980, C.I.T. installed a drainage culvert into the levee between the tract and the Lincolnshire subdivision. This culvert permitted gravity drainage from the tract into a drainage canal serving the subdivision. Because the first culvert was ineffective, in 1981 C.I.T. installed a second culvert into the levee at a lower elevation. B. The Corps of Engineers first became involved in this case in March 1976, when it received a citizen’s complaint that the Drill Hole Canal had been blocked in violation of the Rivers and Harbors Appropriation Act of 1899 (RHA) and federal regulations which require the issuance of a permit for activities which result in the obstruction of navigable waters. Soon after receiving the complaint, the Corps issued a cease and desist order to the developer of the tract (C.I.T.’s predecessor in interest) and ordered the developer to apply for an after-the-fact permit for the canal blockage and for maintenance of the levee system around the tract. After C.I.T. became owner of the tract, it filed the necessary application. The Corps decided that it would have to prepare an environmental impact statement before granting or denying the permit application in order to comply with its responsibilities under the National Environmental Policy Act, § 102, 42 U.S.C. § 4332 (1977). Between late 1977 and June 1979, the Corps proceeded with the development of an environmental impact statement and took other steps to review C.I.T.’s application. During this time, several federal agencies, including the Environmental Protection Agency, the National Park Service and the United States Fish and Wildlife Service, notified the Corps of their opposition to the granting of the permit and their intention to participate in hearings on the matter. In the spring of 1979, C.I.T. first inquired of the Corps whether the blockage of the Drill Hole Canal fell within the scope of nationwide permits issued by the Corps in July 1977. These nationwide permits authorize certain classes of activity within the scope of the Corps’ jurisdiction to be carried out without an individual project permit. The Corps agreed with C.I.T. that its activities were authorized by the nationwide permit and did not require an individual permit. In September 1979, the Corps advised C.I.T. that its proposed repair of gaps in the levees surrounding the tract was also authorized by the nationwide permits. In early 1980, Orleans asked the Corps to reconsider its two decisions regarding the applicability of nationwide permits. The Corps considered Orleans’ arguments and consulted with personnel of the Environmental Protection Agency before deciding, after almost one year, to stand by its determinations that the canal blockage and levee repair were authorized by the nationwide permits. During this period of reconsideration, the Corps inspected, also at Orleans’ request, the installation of the two drainage culverts in the tract’s northeast levee. The Corps engineer who inspected the site reported that the installation did not involve any work upon the wetlands in the interior of the tract, nor did it result in the depositing of dredged or fill material into the wetlands. The Corps concluded that it had no basis to assert jurisdiction over the culvert installations. C. Orleans filed this suit in June 1981, seeking declaratory and injunctive’ relief from the Corps’ decision that C.I.T. was not subject to individual permit requirements for three activities: the blockage of the Drill Hole Canal, the repair of levees around the tract and the installation of culverts to drain the tract. One year later, the plaintiffs filed a motion for partial summary judgment, arguing that permits were required as a matter of law for installation of the two drainage culverts. The defendants countered with motions to dismiss the complaint or, in the alternative, for summary judgment on all issues raised by the plaintiffs. The district court, after a hearing, granted the defendants’ motions and dismissed the complaint, holding that none of the decisions not to require permits was arbitrary or capricious. The plaintiffs now appeal the judgment of the district court. II. Orleans concedes that we normally must review discretionary decisions of the Corps under the arbitrary and capricious standard, and it concedes that decisions not to require permits for actions by private developers, such as those at issue here, are usually considered to be discretionary. Despite these admissions, Orleans argues that we should review the first of the three decisions challenged in this case more closely because “a successor agency head [has], without any apparent valid reason, alter[ed] a three year old, apparently valid exercise of authority by his predecessor ____” The issues before this court, then, are (1) what standards of review to apply, and (2) whether the three challenged agency-decisions are reversible under the appropriate standards of review. Before discussing these issues, however, we shall canvass some of the statutes and regulations governing the Corps’ decisions. III. Orleans argues that there are two statutory schemes under which the Corps should have exercised its authority to require permits for the enclosure and drainage of the C.I.T. tract: the Federal Water Pollution Control Act, as amended in 1977, popularly known as the Clean Water Act (CWA), and the RHA. The Corps possesses regulatory authority relevant to this case granted by the Clean Water Act, which, in general, prohibits the discharge of pollutants into the navigable waters of the United States except in compliance with the CWA’s terms. Clean Water Act, §§ 301(a), 502(12), 33 U.S.C. § 1311(a), 1362(12) (1978). The Act authorizes the Secretary of the Army, acting through the Chief of Engineers, to “issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites,” and to issue nationwide permits for some classes of activity. Clean Water Act, § 404(a), (e), 33 U.S.C. § 1344(a), (e) (1978). In July 1977 the Corps enacted the nationwide permit regulations on which the Corps relied in this case to exempt the blockage of the Drill Hole Canal from individual permit requirements under the CWA. Those regulations provided for a phase-in of the individual permit requirements to wetlands and non-navigable waters. Discharges into wetlands or non-navigable waters prior to the phase-in dates were not subject to individual permit requirements if they did not violate certain health and environmental restrictions, subject to the Corps’ reservation of discretionary authority to require an individual permit if the circumstances “indicate the need for such action because of ... adverse impacts to the affected waters,” 33 C.F.R. §§ 323.4-l(a), 323.4-4 (1977), superseded, see 47 Fed.Reg. 31,800 (1982). In addition to its authority to require individual permits for the depositing of dredged or fill material in navigable waters, the Corps may bring suits for injunctive and punitive relief for violations of permits issued under section 404. 33 U.S.C. § 1344(s) (1978). The Corps’ 1977 regulations allowed district engineers to require an after-the-fact permit rather than bring suit if “the unauthorized activity does not warrant legal action.” 33 C.F.R. § 326.5 (1977). Orleans has also asserted claims relating to the Corps’ regulatory authority under the Rivers and Harbors Act. Section 10 of the RHA prohibits the obstruction of the “navigable capacity” of the waters of the United States except as. authorized by the Chief of Engineers and the Secretary of Army. 33 U.S.C. § 403. The Corps of Engineers has developed regulations which specify the circumstances under which it will authorize activities which obstruct navigable waters, as well as regulations which define “navigable waters” for the purposes of determining whether the Corps will exercise section 10 jurisdiction over particular bodies of water. Through these regulations the Corps has asserted jurisdiction over privately developed artificial channels, even those passing through private property, if they are susceptible to being used in support of interstate commerce. 33 C.F.R. 329.4, 329.5, 329.8 (1983). In general, the Corps requires individual permits for all “structures and/or work in or affecting navigable waters of the United States ____” unless the regulations specifically exempt the activity, 33 C.F.R. § 322.3(a) (1983), but it has established “nationwide permits” which exempt certain classes of activities from the individual permit requirements. Prior to July 22, 1982, nationwide permits promulgated under section 10 authority were codified at 33 C.F.R. § 322.-4. These nationwide permits, promulgated by the Corps in July 1977, provide: The following structures or work are hereby permitted for purposes of Section 10 and do not require separate Department of the Army permits: (c) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or of any currently serviceable structure constructed prior to the requirement for authorization; provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure, and further provided that the structure to be maintained has not been put to uses differing from uses specified for it in any permit authorizing its original construction; (g) Structures or work completed before 18 December 1968 or in waterbodies over which the District Engineer has not asserted jurisdiction provided there is no interference with navigation. 33 C.F.R. § 322.4 (1977) (emphasis added). In this case, the Corps found that C.I.T. was exempt from the permit requirement for the blockage of the Drill Hole Canal on the basis of section 322.4(g), and the repair of the levees around the C.I.T. tract on the basis of section 322.4(c). Section 9 of the RHA prohibits the construction of dams or dikes across navigable waters of the United States unless both Congress and the Secretary of the Army approve. The Secretary of the Army has not delegated the authority to grant or deny section 9 permits to the Chief of Engineers, but the Corps’ regulations under section 9 allow the district engineer of the relevant district to recommend “conditions to be imposed” upon authorized section 9 projects. 33 C.F.R. § 321 (1983). IV. A. Orleans argues that because the Corps initially required C.I.T. to apply for an after-the-fact permit for the 1972-73 canal closure, the Corps' decision to abandon the permit process should be reviewed under a stricter standard than the usual “arbitrary and capricious” standard. Because the reversal in position occurred after a change in the administration of the Corps’ New Orleans District, we should, according to Orleans, view it with suspicion. This court has recently reaffirmed the principle that an agency may adjust its rules and policies in the light of its experience and changing circumstances. Creppel, 670 F.2d at 571; American Petroleum Institute v. Environmental Protection Agency, 661 F.2d 340, 355 (5th Cir.1981). Even when an agency abandons a prior determination, the reviewing court should affirm the agency’s decision if the final agency action is not arbitrary or capricious. Texaco, Inc. v. National Labor Relations Board, 700 F.2d 1039, 1043 (5th Cir.1983); Creppel, 670 F.2d at 571-72. Orleans invites this panel to modify the rules summarized above because in this case the reversal of an agency’s position coincides with a change in agency leadership. We decline to depart from our traditional standard of review, however, because to do so would violate a basic principle of judicial review of agency action, that is, the presumption of regularity. 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). Orleans advances no persuasive reasons for abandoning this presumption here. If, in fact, the Corps’ decision to discontinue the permit process for the Drill Hole Canal was made in bad faith or is otherwise not supported by the administrative record, then the decision will not withstand the arbitrary and capricious standard. On the other hand, if the decision represents a valid exercise of the Corps’ decision-making powers, then this court should not interfere with the Corps’ judgment. Overton Park, 401 U.S. at 416, 91 S.Ct. at 824. To substitute a stricter rule of judicial review for changes of agency rules made by succeeding administrations would unnecessarily and inappropriately restrict the agency’s discretion. The record in this case shows that the New Orleans district of the Corps has had three district engineers since 1976. If this court considers each change of administration to undermine the traditional standards of deference outlined in Creppel, then only rarely would a federal agency such as the Corps be able to change its bureaucratic mind without being subject to a higher level of judicial scrutiny. Such a rule is, it seems to us, at odds with this court’s policy of deference to matters generally committed to the expertise and discretion of federal agencies. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Buttrey v. United States, 690 F.2d 1170, 1183-85 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983). We therefore conclude that the Corps’ decision not to require an after-the-fact permit for the closure of the Drill Hole Canal will be reviewed, as will the other two decisions challenged on appeal, under the arbitrary and capricious standard. B. Orleans has challenged the three Corps decisions relating to the C.I.T. tract on the grounds that they violate the terms of the CWA. We first address Orleans’ attack on the halting of the after-the-fact permit process for the closure of the Drill Hole Canal, 1. In 1979, the Corps decided that the closure of the canal was within the scope of a nationwide permit promulgated under the CWA in 1977, 33 C.F.R. § 323.4-l(a), the text of which is set out supra, note 7. Under this regulation, the Corps did not require after-the-fact permits for discharges made prior to July 25, 1975, except for discharges “into navigable waters of the United States.” Orleans has not expressly stated why it believes its decision was arbitrary or capricious. Primarily, it relies on the fact that the decision not to require a permit was a reversal of the Corps’ prior position. We examine, first, whether the Corps’ decision appears to be a reasonable application of the regulation, and second, whether the Corps acted arbitrarily or capriciously in reversing the permit process. The facts before the Corps were as follows. During 1972 and 1973, when this discharge occurred, the Corps did not consider the Drill Hole Canal to be a navigable waterway. The Corps did not exert jurisdiction over private, man-made canals, such as the Drill Hole Canal, during the period when this canal was actually blocked. In March 1976, the Corps issued a cease and desist order to the owner of the C.I.T. tract, basing its authority to require an after-the-fact permit on United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). This was the first time that the Corps even arguably asserted jurisdiction over the Drill Hole Canal. In 1977, the Corps formally amended its regulations to make it clear that private artificial canals subject to tidal action were within the Corps’ jurisdiction, In applying the nationwide permit regulation to this situation, the Corps decided that the discharge was not made into a “navigable water”, based on the status of the Drill Hole Canal when the discharge occurred. In reasoning this way, the Corps chose not to use several other points in time at which it might have chosen to measure navigability: the enactment of the CWA, the promulgation of the 1977 regulations’ or the time when the CorPs was deciding whether to re<luire an after-the-^ac^ Perm^- Although the Corps did not actually discuss its rationale for choosing ^he date of the discharge, a valid rationale is immediately apparent: that is, the unfairness of exerting jurisdiction over activity which, when done, was clearly not within the Corps’ jurisdiction. In fact, the Eleventh Circuit recently held that the Corps may not retroactively apply the CWA permit requirements against private developers 'n some situations. United States v. Context-Marks Corp., 729 F.2d 1294 (11th Cir.1984); Buccaneer Point Estates, Inc. v. United States, 729 F.2d 1297 (11th Cir. 1984). While these cases arose in a factually dissimilar context from this one, their reasoning helps to persuade us that the Corps did not act arbitrarily or capriciously in interpreting this regulation, Orleans relies primarily on 33 C.F.R. § 323.4-4, under which the Corps had discretionary authority to require an individual permit for a discharge otherwise exempted by the nationwide permits. Orleans contends that Colonel Rush was exercising his discretionary authority under this regulation when he began the after-the-fact permit process on the closure of the Drill Hole Canal, and that Colonel Sands acted arbitrarily in halting the permit process. Colonel Sands noted, however, that under the applicable regulatory guidelines that the Corps’ policy was to apply the discretionary permit requirement only to proposed discharges, and not to completed discharges such as the canal closure. See 40 C.F.R. 230.1 (1975). His interpretation of the guidelines led him to believe that he had no authority to continue the permit process. This reading of the guidelines is a reasonable one, and we cannot say that Colonel Sands’ decision not to invoke his discretionary authority constituted an abuse of that discretion, nor that it was arbitrary or capricious, even though it differed from his predecessor’s opinion. The Corps’ decision that the 1972-73 closure of the Drill Hole Canal is covered by the 1977 nationwide permits under the CWA is, therefore, a reasonable interpretation of the nationwide permit regulation. In fact, although Orleans has argued on appeal that this interpretation was a reversal of the Corps’ prior position, it is not clear from the record that the Corps actually considered whether the 1977 regulations might cover the canal closure before C.I.T. first requested the Corps to do so in 1979. Even if the decision is considered to be a reversal of prior Corps policy, under the “arbitrary and capricious” test which we must apply to such a decision, see part IY.A, supra, we find no basis in the record for reversing the Corps’ determination that the activity at issue here was covered by the nationwide permit. 2. Orleans also contends that the repair of the levees surrounding the C.I.T. tract in the fall of 1979 required permits under the CWA. When C.I.T. first contacted the Corps about repairing the levees, the Corps took the position that the repairs could be performed without a permit under the authority of section 404(f)(1)(B) of the CWA, which exempts the discharge of dredge of fill material for the purposes of maintenance of currently serviceable structures such as levees. In addition, the Corps found that a nationwide permit promulgated under the CWA, 33 C.F.R. 323.4-3(a)(5) (1977), covered the levee repair. The Corps found that the levee was currently serviceable, as required by the statute and the interpretative regulation, because it served as a secondary flood and hurricane protection barrier for the nearby Lincolnshire subdivision. Orleans argues that the Corps acted arbitrarily and capriciously in failing to require a permit for the levee repair because (1) the levee could not properly be characterized as “currently serviceable,” and (2) the Corps did not make the necessary finding that the repair satisfied the conditions enumerated in 33 C.F.R. § 323.4-3(b) (1977). Neither the CWA nor the regulations defines “currently serviceable,” nor does the legislative history of the 1977 Clean Water Amendments. The Corps’ determination that the levee was currently serviceable because it filled a need for a flood and hurricane protection barrier for the Lincolnshire subdivision is a reasonable interpretation of the term as it is used in the statute and regulation. Orleans does not challenge this interpretation directly; rather, its primary argument is that the currently serviceable structures of which the statute and regulations contemplate repair include only those structures which were legally built in the first instance. Because the levee was not authorized, Orleans contends, its repair is not exempted from the permit requirement. Because we have already rejected Orleans’ contention that the original structure was unauthorized, however, this argument fails for lack of its necessary factual basis. We also reject Orleans’ contention that the Corps was required to make specific findings of fact regarding whether the repairs violated any of the conditions set forth in 33 C.F.R. § 323.4-3(b). The purpose of the nationwide permit system is to allow certain types of discharges to be made without prior Corps approval: if a private party, acting under the assumption that its discharge is allowed under a nationwide permit, makes a discharge, that party bears the risk of liability for rectifying the harm done if in fact the discharge is not permitted. In this case, C.I.T. chose to seek the Corps’ opinion before it repaired the levee. The fact that C.I.T. chose to seek the advice of the Corps prior to repairing the levees does not, in our opinion, serve to place upon the Corps an additional burden, not contemplated by the regulations, of making extensive findings of fact regarding compliance with section 323.4-3(b). We note also that Orleans has been actively challenging the Corps’ actions in this case since January 1980, and has had ample opportunity to present both to the Corps and the courts evidence which would indicate that the conditions of section 323.-4-3(b) were violated by the levee repairs challenged in this lawsuit. Orleans has not done so. At Orleans’ request, the Corps spent nearly one year reconsidering its decisions not to require permits for the Drill Hole Canal closure and the levee repair. No evidence or legal argument having been presented which persuades us that the levee repairs were not authorized under the nationwide permit, we cannot say that the Corps acted arbitrarily or capriciously in failing to require a CWA permit before C.I.T. made the repairs. 3. Finally, Orleans argues that the installations of two drainage culverts between the C.I.T. tract and an adjacent drainage canal violated the CWA because they resulted in the depositing of dredged or fill material into either the C.I.T. tract itself or into the Lincolnshire Canal, which drains into the Millaudon Canal, a navigable waterway. As was the case with the levee repairs, the record shows that C.I.T. informed the Corps of its intent to install the culverts beforehand and that Corps personnel inspected the site shortly after the work was completed. The Corps’ on-site investigator reported that he found “no evidence of any discharges regulated under section 404 of the Clean Water Act.” The record clearly indicates that after the culverts were installed, only clear water from within the C.I.T. tract flowed into the drainage canal. Clear water is not within the definition of a pollutant under the CWA. Orleans contends, however, that a “plug” of dirt was washed through the canal during the installation of the culverts, and that this discharge of dirt, no matter how small, violated the CWA. In its briefs, Orleans has contended that the “fact” that a plug of earth was washed away during the culvert installation is undisputed. The record does not support the contention that this was a “fact.” Colonel Sands, in his deposition, explained that the Corps had no evidence before it which would confirm that dirt had been deposited either into the tract or into the canal. As he said, C.I.T. could easily have removed the earthen plug and deposited it elsewhere. Colonel Sands indicated in his deposition that the Corps would have asserted jurisdiction under the CWA if the on-site inspector had found evidence of the depositing of dredged or fill material. His testimony reflects a necessary deference to the field inspector’s findings of fact. Just as Colonel Sands, as an administrator, must rely on the reports of his subordinates to determine whether the necessary facts for exercise of the Corps’ jurisdiction are present, we, as a reviewing court, must grant considerable deference to the agency’s findings of fact. In this case, Colonel Sands had before him a report from his field inspector indicating that no dredged or fill material was deposited. Relying on this report, and having no concrete information which would indicate that the field inspector was in error, Colonel Sands agreed that the Corps had no jurisdiction under section 404 to require C.I.T. to obtain a permit for the culvert installation. His reliance on this report appears to have been in good faith, and we find no basis for holding that Colonel Sands’ decision was arbitrary or capricious. Even assuming that the report was erroneous, we cannot find in the record before us any indication that Colonel Sands’ reliance upon the findings of the field investigator was so unreasonable as to indicate that the Corps’ handling of this matter was actionable under the APA. C. Orleans has argued that the first two of the actions challenged in this lawsuit, the blockage of the canal and the repair of the levees, violated section 10 of the RHA. Although it also alleged claims under section 9 of the RHA in its complaint, Orleans has not argued these claims on appeal. 1. Orleans argues that the decision not to require an after-the-fact permit for the closure of the Drill Hole Canal was arbitrary and capricious because it contravened section 10 of the RHA. However, Colonel Sands clearly based his decision not to require a permit on 33 C.F.R. § 322.4(g). That section created a nationwide permit for “[sjtructures or work completed before 18 December 1968 or in waterbodies over which the District Engineer has not asserted jurisdiction provided there is no interference with navigation.” The Corps interpreted this regulation to exempt from the permit requirement any structure or work completed in a waterway before the Corps asserted jurisdiction over that waterway. We have already discussed the fact that the Corps did not assert jurisdiction over canals such as the Drill Hole Canal until several years after the Drill Hole Canal was blocked. As long as the Corps’ interpretation of the exemption is not arbitrary or capricious, we must not disturb its decision not to require a section 10 permit. We realize that section 322.4(g) could plausibly be read to exempt only those structures completed in waterbodies over which the Corps had not exerted jurisdiction in July 1977, when the regulation was promulgated. However, we also find that the Corps’ reading of the regulation is not unreasonable, particularly in the light of the recent cases, discussed in part IV.B.l, supra, holding that the Corps may not retroactively apply its permit requirements when to do so would be manifestly unfair. In any event, for reasons not apparent to us, Orleans has chosen not to raise this argument. Rather, it has argued that section 322.4(g) exempted only the repair of structures which were completed prior to the Corps’ assertion of jurisdiction. This argument is clearly based on a misreading of the plain words of the regulation. The regulation plainly exempts the structure itself, in this case, the dam across the Drill Hole Canal. Neither Orleans’ argument nor our own reading of the regulation convinces us that the Corps acted arbitrarily or capriciously in applying section 322.4(g) to this situation. Orleans’ second line of argument is that, even if an activity was specifically exempted by section 322.4(g) from the mandatory permit requirement, the Corps retained discretionary authority to require an RHA permit under 33 C.F.R. § 323.4-4, discussed in part IY.B.l, supra. This argument is, again, based upon a misreading of the regulation: section 323.4-4 applied only to projects exempted under the nationwide permits promulgated under the CWA, not the RHA. On its face, Colonel Sands’ decision that the canal closure was not subject to an individual permit requirement was neither arbitrary nor capricious. Orleans’ arguments do not convince us to the contrary. 2. Orleans also asserts that the levee repairs made by C.I.T. in 1979 were subject to an RHA permit requirement. Colonel Sands reached the opposite conclusion, based on the nationwide permit found at 33 C.F.R. § 322.4(c), which exempted the following activities from the permit requirement: The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or of any currently serviceable structure constructed prior to the requirement for authorization; provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure, and further provided that the structure to be maintained has not been put to uses differing from uses specified for it in any permit authorizing its original construction; ... Orleans’ argument is that section 322.4(c) cannot be applied to this repair project because it was neither “previously authorized” nor “constructed prior to the requirement for authorization.” We have already concluded that the levee in question was completed before the Corps asserted jurisdiction over the canal, when no authorization by the Corps was required. Therefore, Colonel Sands’ finding that the levee repair fell into this category of the nationwide permit was completely justified. We find that the Corps’ decisions described above were in accordance with its own regulations and the terms of the RHA. It follows that these decisions were not arbitrary or capricious. V. Orleans has raised a number of arguments which we have not specifically addressed in this opinion. These relate primarily to Orleans’ contention that the Corps, particularly Colonel Sands, has acted in bad faith in handling this case. We find no evidence in the record which supports this notion. We are convinced that the Corps was reasonable in finding that C.I.T.’s actions in enclosing the tract and repairing the levees were allowed under nationwide permits under both the CWA and RHA and that the installation of the drainage culverts did not involve a discharge regulable under the CWA. The Corps’ refusal to require C.I.T. to obtain individual project permits for these acts was not, therefore, arbitrary and capricious. Therefore, the judgment of the district court is AFFIRMED. . "The plaintiffs" and "Orleans” include the Sierra Club, which was allowed to intervene in the suit. . "The defendants” include C.I.T., which was also allowed to intervene. . Actually, Orleans Audubon does not limit its argument to the first decision, i.e., to discontinue the after-the-fact permit process for the closure of the Drill Hole Canal. However, neither of the other decisions can be rationally characterized as a reversal of prior policy, since neither was presented to the Corps prior to the change in administration on which Orleans Audubon bases this argument. . The RHA is codified at 33 U.S.C. § 401, et seq. . Under the CWA, "pollutants” include "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage, sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6) (1978). . The procedure by which the Corps determines whether to issue a permit under section 404 is described in Creppel v. U.S. Army Corps of Engineers, 670 F.2d 564, 569. (5th Cir.1982). . The 1977 regulations provided: If a discharge of dredged or fill material is not permitted by this regulation, an individual or general Section 404 permit will be required for the discharge of dredged or fill material into waters of the United States in accordance with the following phased schedule: (1) Before July 25, 1975, discharges into navigable waters of the United States. (2) After July 25, 1975, discharges into navigable waters of the United States and adjacent wetlands. (3) After September 1, 1976, discharges into navigable waters of the United States and their primary tributaries, including adjacent wetlands and into natural lakes, greater than 5 acres in surface area. 33 C.F.R. 323.4-l(a) (1977), superseded by amended regulations, see 47 Fed.Reg. 31,800 (1982). The Corps has issued several nationwide permits under the authority of section 404(e); the present versions are codified at 33 C.F.R. § 323.4 (1983). See note 5, supra. . The present regulation is similar. See 33 C.F.R. § 326.3(c) (1983). . In July 1982, the Corps combined the nationwide permit regulations promulgated under section 10 of the RHA with those promulgated under the authority of section 404 of the CWA. See 47 Fed.Reg. 31,798 (1982). . The approval of the state legislature may be substituted for that of Congress for dams and dikes to be built across wholly intrastate bodies of water. . Normally, this court’s review of decisions such as those challenged in this lawsuit is limited to whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’’ Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (B), (C), (D). See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904-05 (5th Cir.1983). . Colonel Early J. Rush was district engineer for the New Orleans district until August 1978, when he was replaced by Colonel Thomas A. Sands. Colonel Robert C. Lee succeeded Sands as district engineer after this action commenced. . It appears from the statement of facts in Creppel that the New Orleans district was administered by still another district engineer, Colonel E.R. Heiburg, III, as late as 1975; the agency has, then, been under four administrations within the past decade. . This regulation was superseded in 1982. See 47 Fed.Reg. 31,800 (1982). Section 323.4-3(a)(5) allowed the "repair, rehabilitation or replacement” of any "currently serviceable fill discharged prior to the requirement for authorization” providing that the work did not result in a deviation from the specifications of the original fill. Additionally, the repair or replacement was required to satisfy seven conditions set forth in 33 C.F.R. § 323.4-3(b), relating to the safety of the discharge to the environment. . Even so, Orleans' argument would be valid only if the repairs were to that portion of the levee blocking the Drill Hole Canal. These particular repairs appear to have been made in the southern levee of the C.I.T. tract, and the Drill Hole Canal runs beside the west of the tract, but was closed by the levee near the southern end of the tract. We simply cannot be sure where the repairs were made from the information available to us. . Orleans has also argued that the drainage of water from the C.I.T. tract is prohibited by section 404(f)(2) of the CWA, which provides: Any discharge of dredge or fill material into the navigable waters incidental to any activity having as its purposes bringing an area of the navigable waters to a use which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Orleans contends that the drainage is prohibited under this section because it is incidental to an activity which is intended to bring about the conversion of a wetland, the C.I.T. swamp, into a non-wetland area which can then be developed into a residential area without governmental approval. Although we are fully aware of this possibility, as is the Corps, we cannot require the Corps to exercise a jurisdiction that it does not possess. Section 404(f)(2) applies only when dredged or fill material has been discharged, and water is simply not dredged or fill material. Orleans’ bald assertion that vegetation from the tract (which, it argues, constitutes a pollutant) is also being removed through the culverts is not supported by the record. . The government has, in another case, expressed the position that de minimis discharges do not require permits under section 404 of the CWA. See Avoyelles Sportsmen’s League, 715 F.2d at 919-20, n. 37. . Although the Supreme Court held, in California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), that the RHA does not provide a private cause of action for enforcement of its provisions, a federal court may review agency actions alleged to be in violation of the RHA under the provisions of the APA. Jurisdiction is based on 28 U.S.C. § 1331. See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir.1982). . Orleans' assertion that Colonel Sands made misrepresentations to personnel of the Environmental Protection Agency is not supported by the record. . Orleans, in a post-argument letter brief, has suggested for the first time in this appeal that the construction of ring levees around the C.I.T. tract was not authorized. Previously, Orleans had argued only that the portion of the levee which actually blocked the Drill Hole Canal was unauthorized. This issue, raised at such a late date, has not been properly brought before this court for our consideration in this appeal.

Quinonez-Lopez v. Coco Lagoon Development Corp.

BREYER, Circuit Judge. This case concerns the validity of the Corps of Engineers’ decision to grant Coco Lagoon Development Corp. (“CLDC”) a permit to fill a wetland area for the construction of housing on the northern coast of Puerto Rico. The Corps granted the permit on the basis of an “Environmental Assessment.” It concluded that the filling project would have no significant adverse environmental impact. Thus, there was no need to go further and prepare a full environmental impact statement (“EIS”). See 42 U.S.C. § 4332(C) (EIS required only for “major Federal actions significantly affecting the quality of the human environment”). Appellants challenge this “Finding of No Significant Impact.” We affirm the district court's dismissal of that challenge. Twenty years ago, the area in question was a mangrove forest, a type of environment that all the parties acknowledge to be a valuable and productive wetland. In the late 1960’s, before enactment of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., CLDC deposited large volumes of fill in the area, destroying the mangroves in all but one corner of the property. No one challenges the propriety of this pre-NEPA activity. In at least a sizeable portion of the filled area, however, insufficient fill was deposited to create permanently dry land; this portion continued to support some types of wetland vegetation. Any further filling activity affecting this “secondary wetland” portion of the area (and any affecting the remaining mangrove areas) requires a Corps permit, see 33 U.S.C. §§ 1344, 1362(7), and the issuance of a Corps permit is now subject to NEPA. In the late 1970’s, CLDC resumed filling activity at the site, without seeking permission from the Corps. It deposited a 250 foot square “pad” of fill in a wetland clearing in the remaining mangrove area, to provide a location for a “sanitary treatment plant.” It also resumed filling in the “secondary wetland” area. In January 1980 the Corps issued a cease and desist order, telling CLDC to stop these activities unless and until it obtained an appropriate permit. CLDC applied for the permit, and it entered into negotiations with the Corps concerning the permissible scope of filling in the area. Various federal and Commonwealth agencies studied the site and the proposals, offered their opinions, and participated in the negotiations between the Corps and CLDC. As a result of these negotiations, CLDC agreed to remove the fill it had placed in the mangrove clearing and to relocate the treatment plant away from the surviving mangrove area. It also agreed that, if the Corps permitted it to continue to fill the 100 or so acres of “secondary wetlands,” it would create a new 30-acre mangrove forest elsewhere on its property, to compensate for the lost wetlands. The Corps granted the permit, with these conditions. It also issued an environmental evaluation concluding that the area to be filled was of marginal environmental value; that, in light of the agreement to create a more valuable mangrove area, the “net environmental impact of the issuance of the permit is positive;” and that an environmental impact statement was therefore unnecessary. It is these conclusions that appellants challenge here. The critical determination of the Corps here under review is that there is no substantial possibility that CLDC’s permitted activities could significantly affect the quality of the human environment. Cf. Winnebago Tribe v. Ray, 621 F.2d 269, 271 (8th Cir.) (party challenging decision not to prepare EIS bears burden of establishing substantial possibility that agency action “could significantly affect the quality of the human environment”) (quoting Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir.1974)), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Maryland-National Capital Park & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1039-40 (D.C.Cir.1973) (EIS unnecessary only when “potential impacts are truly insignificant”). Appellants must show the Corps’ determination to be “arbitrary, capricious, an abuse of discretion,” 5 U.S.C. § 706(2)(A); in essence, they must seek to show that, in light of the factual circumstances, the Corps’ decision was unreasonable. See, e.g., National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883, 889 (D.C.Cir.1981); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980). Different courts have urged different degrees of “judicial scrutiny” of the underlying record in cases like this one. Compare, e.g., City of Davis v. Coleman, 521 F.2d 661, 673-74 (9th Cir.1975) (relatively searching review of “reasonableness”) and Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973) (same) with, e.g., First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1381 (7th Cir.1973) (more deferential “arbitrary or capricious” standard) and Hanly v. Kleindienst, 471 F.2d 823, 828-29 (2d Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973) (similar); see generally Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F.2d 732, 741-42 (3rd Cir.1982) (comparing two approaches); Shea, The Judicial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 B.C.Envtl.Aff.L.Rev. 63 (1980). And they have used various legal formulae to describe the standard of review. We need not enter the luxuriant jungle of differing review descriptions here, however, for the Corps decision is sufficiently well-supported to withstand even strict judicial scrutiny. We note at the outset that the Corps’ geographical determination — picking out the 100 acres of secondary wetlands over which it retained jurisdiction— has adequate support. Corps scientists examined the area in 1979 and 1980 to delineate the jurisdictional area and based their conclusions on observed vegetation on the site. Appellants have presented us with no record evidence casting doubt on the accuracy of the Corps’ findings. Similarly, appellants cannot seriously attack the Corps’ decisions in respect to the remaining mangrove areas. The Corps required that CLDC remove the one “pad” of fill in the vicinity of the surviving stand of mangroves, before it would allow continued filling elsewhere on the site. And no one has argued that the resumed filling elsewhere on the site will have any deleterious effects on the mangrove areas. The issue on which appellants must rely concerns the environmental value of the “secondary wetlands.” The Corps, along with other federal and commonwealth agencies, thoroughly studied the affected area. Staff of at least five governmental agencies visited the site to assess the likely environmental impact of filling. The agencies’ staffs met with each other and prepared reports. The consensus of the agencies was that the secondary wetlands were of so little environmental value that permitting their destruction was cause for no concern. The United States Environmental Protection Agency described the area as “of poor quality” and concluded that restoration efforts were not warranted. The Commonwealth Environmental Quality Board described the area as “of little or no ecologic importance.” And the Commonwealth Department of Natural Resources characterized it as “marginal and of poor quality.” The federal Fish and Wildlife Service focused its attention on the serious detrimental effects of the activity in the mangrove forest, but concluded that as long as that area was not affected, the remaining work could safely proceed. Appellants’ efforts to rebut these appraisals focus on certain preliminary staff reports, which, they say, show that the agencies’ conclusions fail to reflect the true facts. In particular, they point to a staff report of the National Marine Fisheries Service and to a report of the Corps’ own biologist; these documents, they claim, establish the environmental significance of the affected area. Our review of the materials in the record reflecting the views of these two agencies convinces us, however, that these reports cannot support a conclusion that the secondary wetlands were of significant ecological value. Robert Pace, the Corps’ biologist, visited the site on at least two occasions in late 1979. In his report of January 1980 he described the “Effects of Violation upon Environment” as follows: Destruction of a mangrove forest and a freshwater marsh has eliminated a wildlife habitat, affected drainage patterns and areas receiving flood waters, affected water quality by eliminating a natural filtration area, and has possible detrimental effect on sedimentation over adjacent reefs and marine fishery productivity. This passage casts little or no light on the impact of the destruction of the secondary wetlands; for, it describes the effects of the prior destruction of the mangrove forest, a matter that is not in dispute here. At the time of Mr. Pace’s visits, the Corps may not have been aware of the relevant chronology. In any case, there is no conflict between the report and the Corps’ later characterization of the area — in its contemporary condition — as “marginally valuable wetlands.” The National Marine Fisheries Service study also initially focused on the effects of the entire long-term filling project. It also described the effects of the entire project in troubling terms: 132 acres of mangroves and saline, brackish, and freshwater marsh have been filled for roads, housing development, drainage ditches, and a sewage treatment plant. Runoff from the project is also impacting seagrasses and coral reefs. Loss of this habitat removes sources of detritus, filtration of land and waterborne pollutants, and generally diminishes the marine and estuarine systems’ capability to produce fishes and invertebrates of commercial and recreational importance. But again it is clear that this assessment concerns the project as a whole, including the pre-NEPA destruction of the mangroves and the current filling within the remaining mangrove area for the sewage treatment plant. The Fisheries Service played an active role in the subsequent discussions concerning the project. When, in the course of the negotiations, attention focused on the significance of the wetlands in their present condition, the Service’s representative characterized the secondary wetlands as having a “productivity value” of 1, on a scale where 0 represented totally unproductive wetland and 5 represented the most productive mangrove wetlands. Thus, the Fisheries Service’s position also does not cast doubt on the Corps’ conclusion. All the concerned agencies appear to have agreed that the secondary wetlands were of very little environmental value, and nothing in the record before us contradicts this consensus. Under these circumstances, we find no basis for questioning the reasonableness of the Corps’ determination that the filling activity covered by the permit it issued would cause no significant environmental damage. Its conclusion is not arbitrary or capricious. Hence, the decision of the district court dismissing the complaint is Affirmed.

National Wildlife Federation v. Marsh

KRAVITCH, Circuit Judge: This is an appeal from a denial of preliminary injunctive relief by the District Court for the Southern District of Georgia. Appellants seek to prohibit the release of funds by the Department of Housing and Urban Development (“HUD”), the expenditure of funds already released, and any other action in furtherance of the construction of Lake Alma, a man-made 1,400 acre lake in Bacon County, Georgia. Appellants challenge the lawfulness of HUD’s 1982 decision to release the funds for the Lake Alma Project and the Army Corps of Engineers’ (“Corps”) grant of a permit pursuant to § 404 of the Federal Water Pollution Control Act, as amended by the Clean Water Act, 33 U.S.C. § 1344, for construction of the dam for the lake. In releasing the funds, HUD waived a regulation requiring that the project for which funds are issued must “principally benefit” persons of low and moderate income. Appellants contend (1) that the governing statute, 42 U.S.C. §§ 5301-5320, requires that over fifty percent of the persons benefited by funding issued thereunder be of low and moderate income and (2) that the Deputy Assistant Secretary of HUD had no authority to waive this requirement. Appellees argue and the district court held that the statute does not impose a requirement of fifty percent benefit to low and moderate income persons; that the fifty percent directive is regulatory only, see 24 C.F.R. § 570.302(b)(1), (d)(2) (1983); and that, therefore, the provision may be waived pursuant to 24 C.F.R. § 570.4. Alternatively, appellants claim that even if the requirement is regulatory only, waiver of the regulation was arbitrary, capricious, and an abuse of discretion. Appellants next argue that a supplemental environmental impact statement (“SEIS”) was required before HUD or the Corps could release the funds or grant the § 404 permit because modifications in the plans subsequent to issuance of the final environmental impact statement (“EIS”) would have a significant impact on the environment. Finally, they contend that the Corps acted unlawfully in granting a § 404 permit for the primary project prior to determining whether additional permits would be necessary for the modifications of the plan on which environmental approval for the entire plan is conditioned, and, if the additional permits are needed, prior to issuance of such permits. The district court rejected each of appellants’ claims, ruled that there was no substantial likelihood of success on the merits, and denied the preliminary injunction as well as a stay pending appeal. A panel of this court granted a temporary stay pending appeal. We affirm in part, reverse in part and remand for further proceedings. I. Background A. Early History In 1968 the City of Alma (“Alma”) was selected to participate in the Model Cities Program, pursuant to the Demonstration Cities and Metropolitan Development Act of 1966,42 U.S.C. §§ 3301-3374. Alma formulated its plan under the program centered around four cornerstone projects: (1) development of an air/rail industrial park, (2) improvement of water and sewage treatment facilities, (3) improvements to the airport, and (4) the construction of a reservoir on Hurricane Creek, now referred to as Lake Alma and the subject of this litigation. Alma secured funding for and completed the first three of the four cornerstone projects. Other community development projects, such as a residential community for the elderly and a recreation park, were constructed on the expected shoreline of the lake. In 1971 HUD released funds for a feasibility study on the Lake Alma project and, in 1972, funds for preliminary engineering work. Additional funds were appropriated in 1973. In the same year a lawsuit was filed by plaintiffs challenging the project on the grounds that an EIS was required. Deen v. Lynn, CV No. 861 (S.D.Ga. Sept. 20, 1973). The suit was dismissed when HUD undertook preparation of an EIS. In 1974 HUD issued a draft EIS for the Alma project. Because the EIS engendered a substantial amount of criticism, it was withdrawn. B. HUD’s Involvement in the Lake Alma Project as Administrator of the Community Development Block Grant Program In the meantime, Congress had enacted the Housing and Community Development Act of 1974 (“Act”), 42 U.S.C. §§ 5301-5320. Alma sought funding for the Lake Alma project under this Act and, pursuant thereto, assumed HUD’s responsibility for ensuring compliance with all applicable environmental requirements. Under the Act, in particular the Community Development Block Grant Program, HUD allocated funds for the Lake Alma project in fiscal years 1975 through 1979. The release of these funds, however, was conditioned upon the completion of an EIS for the project. Alma issued a final EIS in December, 1976, and submitted it to HUD in March, 1977, together with a request for release of the allocated funds. By a letter dated March 24, 1977, the Deputy Assistant Secretary of the Interior informed the Mayor of Alma and HUD that the Department of the Interior opposed the project on environmental grounds. The Deputy Assistant Secretary stated that the Fish and Wildlife Service (“FWS”) also objected to the project. On the same day the Deputy Administrator of the Environmental Protection Agency (“EPA”) registered that agency’s objections to the Lake Alma project. The next day a lawsuit was filed challenging HUD’s funding of the project. Hurricane Creek Protective Society v. Bacon County, Georgia, CV No. 577-16 (S.D.Ga. March 25, 1977). The Assistant Secretary of HUD informed Alma on April 4, 1977, that serious objections to the project had been raised and that Alma should consider withdrawing its request for the release of funds. Alma declined to do so. HUD considered the merits of the application and, after consultation with all federal agencies involved, refused to release the funds. HUD informed Alma of the decision on August 10, 1977. Alma requested that HUD conduct an administrative hearing and filed a cross-claim in the pending lawsuit seeking to compel HUD to release the funds. The lawsuit was dismissed, without prejudice, for want of prosecution in June, 1980, due to an agreement among the litigants that Alma would obtain a § 404 permit from the Corps before proceéding further with the project. The Corps issued the § 404 permit in November, 1981. HUD reinstituted review of the Lake Alma project, receiving comments from certain interested parties. On January 20, 1982, HUD informed Alma it was considering funding the project on the condition that Alma certify satisfaction of four requirements: (1) that the EIS had been reviewed and, if necessary, revised, (2) that the project would principally benefit low- and moderate-income persons, (3) that the use of the lands acquired was in compliance with the applicable comprehensive open space plan, and (4) that the project description remained unchanged from the most recently approved HUD application. In February, 1982, Alma responded and submitted documents declaring that all four of the requirements were satisfied. Upon review, HUD’s Atlanta Area Office (“HUD-Atlanta”) determined that Alma had satisfied the first, third and fourth conditions, but not the second. HUD-Atlanta found that, under the best assumptions, the project might barely qualify as principally benefiting low- and moderate-income persons but that, under more realistic assumptions, the project would not qualify. HUD-Atlanta therefore recommended to the Assistant Secretary of HUD that the funds not be released. Upon review of HUD-Atlanta’s report and recommendation, the Deputy Assistant Secretary agreed with the findings therein but refused to follow HUD-Atlanta’s recommendation. Rather, the Deputy Assistant Secretary waived the principal benefit requirement on the grounds that to do otherwise would result in undue hardship and would frustrate the purpose of the block grant statute. He directed HUD-Atlanta to inform Alma that the funds would be released. C. The Corps’ Involvement in the Lake Alma Project As required by the agreement of the litigants in the second lawsuit, Alma applied to the Corps for a § 404 permit for the discharge of dredged and fill material. Public notice was issued and a public hearing was held with approximately 550 persons in attendance. Supporters of the project included several state agencies and officials: the Governor of Georgia; the Georgia Department of Natural Resources (“DNR”); the Georgia State Clearing House; and the Southeast Georgia Area Planning and Development Commission. Opponents included nearly all federal agencies involved with conservation and environmental issues: the EPA; the Executive Office of the President, Counsel on Environmental Quality (“CEQ”); FWS; and the Bureau of Outdoor Recreation (“BOR”). Other opponents included: The Sierra Club; the National Wildlife Federation; the Georgia Wildlife Federation; the Georgia Conservancy; the Atlanta Audubon Society; the Georgia Ornithological Society; and the Hurricane Creek Protective Society. After thorough analysis, the Corps’ District Engineer for the Savannah District recommended to the Divisional Engineer for the South Atlantic Division that the permit be denied for environmental reasons. The divisional engineer directed his staff to further investigate the critical issues, made a personal inspection of the site, received comments from interested state and federal agencies and asked the District Engineer for a reevaluation. At this time a major development occurred. The FWS issued a Mitigation Study for the Lake Alma project. The Study proposed a plan whereby the loss of 1,400 acres of bay and branch swamp would be mitigated with creation of six green tree reservoirs (“GTRs”), combined with intense wildlife management of the proposed project area. Conditioned on the implementation of this Mitigation Plan, the FWS and the BOR, now the Heritage Conservation and Recreation Service, withdrew their objections to the issuance of the § 404 permit. The EPA and CEQ, however, maintained their opposition to the project. During this period a new District Engineer had assumed charge of the Savannah District. After apparently comprehensive analysis, he concluded that the permit should be issued, but only on condition that the Mitigation Plan be implemented. This recommendation was forwarded to and accepted by the Divisional Engineer. The Divisional Engineer informed the EPA that the permit would be granted unless the EPA requested that the issue be elevated to the department level for further review. EPA requested the elevated review, which was conducted by the Office of the Chief of Engineers (“OCE”). The EPA and the CEQ continued to object to the construction of Lake Alma due to its anticipated environmental impact. In addition, both attacked the Mitigation Plan on the ground that it would not adequately mitigate the loss of the wetlands and that the proposed GTRs could create additional water quality problems. The EPA at this time brought to the attention of the Corps the possibility that the GTRs themselves would require § 404 permits, separate and distinct from the § 404 permit required for the entire project. In response to this last issue, OCE conducted a site inspection and concluded that individual § 404 permits for the GTRs might be required, but, due to the uncertain location of the reservoirs, there was a possibility that all of the GTRs could be covered by a nationwide permit. OCE held a public hearing on the Lake Alma project in January, 1980, with officials from the Corps, EPA, and CEQ present. Subsequently, OCE ordered preparation of a study concerning the Mitigation Plan and the GTRs. The Environmental Protection Division of the DNR made and released this study in April, 1980. Despite criticism by both the EPA and the FWS questioning the methods employed in the study, OCE concluded that the § 404 permit should be issued. Following EPA’s request for elevated review, the Assistant Secretary of the Army ordered the OCE to update the administrative file and directed that a new study on the GTRs be undertaken, this time in consultation with the FWS and the EPA. On the basis of this study, completed in July, 1981, and the other information before him, the Assistant Secretary decided that the § 404 permit should be issued. EPA was notified of this decision and of its option to elevate review to the Secretary of the Army. In a letter dated October 9, 1981, the Administrator of the EPA informed the Corps that the EPA’s questions regarding the loss of wetlands and the water quality of Lake Alma had been adequately answered and that the EPA now withdrew its objection to the project. At the direction of the Assistant Secretary of the Army, the District Engineer on November 10,1981, issued the § 404 permit to construct the dam for Lake Alma. This lawsuit ensued. II. HUD Authority to Waive the Principal Benefit Regulation This issue was framed in the court below and by the parties on appeal as whether the requirement that funds “principally” benefit low- or moderate-income persons is a statutory or a regulatory requirement. All agreed that if it were regulatory only, the Secretary of HUD has the authority pursuant to 24 C.F.R. § 570.4 to waive it. The district court concluded that while principally benefiting low- and moderate-income persons is the primary goal of the statute, 42 U.S.C. § 5301(c), the principal benefit requirement, 24 C.F.R. § 570.302(b)(1), (d)(2), was regulatory only and could be waived, and that the only statutory requirement is that the funded project give “maximum feasible priority” to benefiting low- and moderate-income persons. It is clear from the face of the statute that no explicit principal benefit requirement is statutorily imposed. “Principally benefiting” is explicitly made the primary goal of the statute, not a requirement. Preambles to statutes do not impose substantive rights, duties or obligations. See Association of Am. Railroads v. Costle, 562 F.2d 1310, 1316 (D.C.Cir.1977); Alexander v. HUD, 555 F.2d 166, 171 (7th Cir.1977). The statute requires only that the “maximum feasible priority” be given. Accordingly, it is critical to determine what the statutory requirement of giving maximum feasible priority, which all concede is a nonwaivable requirement, really means, and what it actually requires. The thrust of appellants’ argument is that “maximum feasible priority” implicitly requires that at least fifty percent of the beneficiaries of a funded project be of low- or moderate-income and that above that level the highest priority feasible is to be given to benefiting such persons. In other words, appellants assert, “maximum feasible priority” means “maximum feasible priority above fifty percent.” Appellees have failed to interpret “maximum feasible priority,” other than to argue that it does not mean at least fifty percent low- and moderate-income beneficiaries because, if that is what Congress intended, it would have said so in clear terms. When faced with an issue of statutory interpretation, “[ajbsent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.” North Dakota v. United States, — U.S. —, 103 S.Ct. 1095, 1102-03, 75 L.Ed.2d 77 (1983), quoting Consumer Products Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980) [hereinafter CPSC]. This guideline presupposes that the “plain meaning” of the statute can be deduced from its terms. CPSC, 100 S.Ct. at 2056. Accord Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325, 1331 (11th Cir.1983); Hills v. Commissioner, 691 F.2d 997, 1000 (11th Cir.1982). Here, the “plain meaning” of the term “maximum feasible priority” is not readily apparent. Accordingly, recourse to the legislative history of the statute is necessary. See Newport News Shipbuilding and Dry Dock Co. v. EEOC, — U.S. —, 103 S.Ct. 2622, 2627, 77 L.Ed.2d 89 (1983) (where statute does not define relevant term, court “must therefore go beyond the bare statutory language”). In enacting the Housing and Community Development Act of 1974, Congress authorized the Secretary of HUD to issue block grants to localities for revitalization and maintenance of our nation’s cities. As Congress stated: “The primary objective of this chapter is the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low- and moderate-income.” 42 U.S.C. § 5301(c). In setting the requirement for approval or disapproval of applications for grants, Congress established: Any grant under this chapter shall be made only on condition that the applicant certify to the satisfaction of the Secretary that its Community Development Program has been developed so as to give maximum feasible priority to activities which will benefit low- or moderate-income families or aid in the prevention or elimination of slums or blight. The Secretary may also approve an application describing activities which the applicant certifies and the Secretary determines are designed to meet other community development needs having a particular urgency as specifically described in the application. 42 U.S.C. § 5304(b)(2). The Lake Alma funds were applied for only under the “benefit to low- or moderate-income persons” prong, Alma never having certified that the project would remove or prevent blight or that any other urgent need applied. Thus, our review is limited to the propriety of the authorization of funds under the first standard. The legislative history of this section of the statute began in the Senate. The original Senate version of 42 U.S.C. § 5304(b)(2) contained a limitation that no more than twenty percent of funds issued for a particular program could be used so as not “to be of direct and significant benefit to families of low or moderate income . .. . ” S.Rep. No. 693, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4273, 4322; see also id. at 4400. This requirement of eighty percent use for low- or moderate-income persons was to be applied “unless the Secretary finds modification of the limitation necessary to meet urgent community needs.” Id. at 4322. The Senate wished to include the statutory limitation “[i]n order to assure ... that the activities undertaken by a community development agency reflect the national priorities for which assistance is provided .... ” Id. Although the Senate committee members dealing with the bill had divergent views as to the propriety of the limitation, all seemed to agree on the purpose to be served by the eighty percent requirement: limiting the discretion of localities to use community development funds for purposes other than those set forth in the statute. The eighty percent requirement was deleted from the bill by the Conference Committee before final passage. In lieu thereof the “maximum feasible priority” language made its debut: The Senate bill contained a provision not contained in the House amendment prohibiting more than 20 percent of an applicant’s community development funds to be used for activities which do not directly and significantly benefit low- and moderate-income families or blighted areas. The conference report contains, in place of the Senate provision, a requirement that the applicant certify to the • HUD Secretary’s satisfaction that its program has been developed so as to give maximum feasible priority to activities which will benefit low- and moderate-income families or aid in the prevention or elimination of slums or blight. S.Conf.Rep. No. 1279, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4449, 4453 (emphasis deleted). This is the sum and substance of guidance given by the 93rd Congress on the meaning of “maximum feasible priority.” It is clear at this stage in the history that adoption of the term signaled a rejection of the eighty percent use requirement. While the legislative history is silent on Congress’ reasons for the rejection, given the criticism by several Senators, we can infer that it was prompted primarily by a belief that the requirement would place too rigid a restriction on local government discretion. What limits on discretion 'were intended by “maximum feasible priority,” however, we are not told. It is probable that Congress deliberately avoided the issue, not setting any specific percentage limits on the authorization of funds. To gain insight into this question, we have explored the subsequent history of the Housing and Community Development Act. We bear in mind that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” CPSC, 447 U.S. at 117, 100 S.Ct. at 2061 (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960)). Given the paucity of guidelines, however, any assistance available must be accepted. The Conference Report for the 1977 amendments to the statute suggests that the conferees may have interpreted § 5304(b)(2) in the way appellants urge: “maximum feasible priority” as a requirement to give as much priority as possible over fifty percent to activities benefiting low- and moderate-income persons. The report states: “The committee ... does not intend that this amendment change the requirement that community development grant funds must, to the maximum extent feasible, be used for activities primarily benefiting low and moderate income persons .... ” H.Conf.Rep. No. 634, 95th Cong., 1st Sess. 47, reprinted in 1977 U.S. Code Cong. & Ad.News 2965, 2968 (emphasis added). This language reflects that particular Congress’ understanding that maximum feasible priority means above and beyond primarily benefiting low- and moderate-income persons. But cf. Staff Report on the Community Development Block Grant Program, Subcommittee on Housing and Community Development of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess. 5 (1977) (“While [maximum feasible priority] appears to focus on funding priorities, the focus is still extremely broad. Given the procedural objectives of the program, this provision would appear to proscribe only those individual activities which are clearly unrelated to ... low or moderate income persons ... ”). ■ Later in this report the Conference Committee adopted a Senate amendment to § 5304(c)(3) providing for disapproval of block grant applications that do not comply with the primary purpose of principally benefiting low- and moderate-income persons: “The Conference report contains the Senate provision amended to specifically incorporate the present [1974] law requirements that no application be approved unless it ... principally benefits persons of low- and moderate-income .... ” H.Conf. Rep. No. 634, 95th Cong., 1st Sess. 50, reprinted in 1977 U.S.Code Cong. & Ad.News at 2970 (emphasis added). In 1981 Congress repealed and rewrote major portions of the statute, restructuring its provisions to emphasize administrative oversight of post-award use of funds instead of stringent enforcement of detailed application requirements. It stated its reasons for so doing thus: In the period since 1974, various pressures from both Congress and within HUD, have worked both to narrow the focus of the program and to layer thicker and more restrictive regulations on the application .... The HUD regional and area office staff has used the application process far too frequently as a means for imposing HUD’s views of acceptable program activity on local entities. S.Rep. No. 139, 97th Cong., 1st Sess. 227, reprinted in 1981 U.S.Code Cong. & Ad. News 396, 523. Nevertheless, Congress retained “maximum feasible priority” as a project requirement to which each applicant must certify when applying for funds under the low- and moderate-income provision of the statute. See 42 U.S.C. § 5304(b)(3) (Supp.1982). Whether the “principally benefit” regulation, 24 C.F.R. § 570.302(b)(1), (d)(2), was one of the “restrictive regulations” to which the Senate reacted is not clear. In light of the fact, however, that soon thereafter HUD took steps to modify substantially its principal benefit requirement, see Proposed Amendments to Community Development Block Grants, 47 Fed.Reg. 43900, 43923 (1982); 24 C.F.R. § 570 (1983), and accompanying editorial note; Intergovernmental Review of the Department of Housing and Urban Development Programs and Activities, 48 Fed.Reg. 29206, 29218 (1983), it is likely that the requirement was considered one of the “restrictive regulations.” It would be illogical therefore to interpret “maximum feasible priority” as containing an implicit “principal benefit” requirement. Congress decried the restrictive regulations, which HUD subsequently modified by proposing removal of, among other things, the principal benefit requirement, yet retained the “maximum feasible priority” requirement as part of the program’s certification procedure. Our inquiry next turns to the history of the implementing regulations to the statute. We must accord “great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). “[T]his Court will normally defer to an agency’s determination ‘when the administrative practice at stake “involves a contemporaneous construction of a statute by” ’ ” the responsible administrative agency. Veteran’s Admin. Medical Center v. FLRA, 675 F.2d 260, 262 (11th Cir.1982) (quoting Power Reactor Dev. Co. v. International Union of Elec., Radio & Machine-workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961) (quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933))). Unfortunately, the agency’s contemporaneous and subsequent interpretations of the statutory language are unclear and seemingly inconsistent. Certainly, contrary to appellees’ assertions, no one interpretation is longstanding. The 1978 administrative regulations implementing section 5304(b)(2) require that at least fifty percent of the persons benefited must be of low- or moderate-income. 24 C.F.R. § 570.302(d)(2). The original 1974 implementing regulations, however, did not by their terms contain a principal benefit requirement. See Rulemaking, Community Development Block Grants, 39 Fed.Reg. 40136 (1974). Instead they required an applicant to identify community development needs and a strategy for meeting those needs, and to specify both short and long term objectives developed in accordance with area-wide development planning and national urban growth policies. Id. at 40144. These regulations could be interpreted as an indication that HUD, at least originally, did not construe “maximum feasible priority” to include a principal benefit requirement. In 1977, three years after Alma applied for funding under the Act, HUD first proposed the principal benefit regulation, Proposed Rulemaking, Housing and Community Development Act, 42 Fed.Reg. 56450 (1977), stating: The experience gained in carrying out the block grant program has caused some concern that the statutory intent was not being met in a consistent fashion, and that benefits to lower-income persons might be diminishing. The 1977 amendments to the Housing and Community Development Act include additional language concerning benefits to low- and moderate-income persons. It was therefore decided to propose a rule which contained specific controls on the use of funds to assure that low- and moderate-income persons are the principal beneficiaries. The proposed rule is that all block grants must be used for projects which principally benefit low- and moderate-income persons. Id. at 56454. This proposal reflects two possible HUD interpretations: (1) that the statute embodies a requirement of principally benefiting low- and moderate-income persons; and/or (2) in HUD’s opinion, there had been times prior to 1977 when the statute had been applied so as not to principally benefit low- and moderate-income persons. The 1977 rules provided for exceptions to their requirements “where clearly necessary to attain other statutory objectives.” Id. Appellees persuasively argue that if the principal benefit requirement were statutorily required, the agency would have had no power either to make exceptions to it or not to have applied it between 1974 and 1977. Indeed, when the principal benefit regulation was finally promulgated, HUD “concluded that the requirement is statutorily permissible Rulemaking, Housing and Community Development Act, 43 Fed. Reg. 8450, 8451 (1978) (emphasis added). Given that a question had been raised in HUD’s collective mind whether the principal benefit requirement was even permissible, and given HUD’s failure to include the requirement in the original regulations, it appears HUD did not interpret the statutory “maximum feasible priority” requirement to embody a principal benefit requirement, even though it interpreted Congress’ overriding intent behind the statute to be one of principally benefiting low- and moderate-income persons. The district court properly relied upon the rule of deference to agency interpretation, defering to HUD’s original interpretation of the statute and its 1981 decision that the principal benefit requirement was regulatory only and therefore waiva-ble. In the matter before us, however, other principles of statutory construction also apply and unfortunately present a conflict. [T]he courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute ... that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1982) (emphasis added); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979). “In order for an agency interpretation to be granted deference, it must be consistent with the congressional purpose.” Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974); accord Coca-Cola Co. v. Atchinson, Topeka, and Santa Fe Ry. Co., 608 F.2d 213, 222-23 (5th Cir.1979). The statutory language is to be interpreted “in a way that accomplishes the obvious purpose of Congress in enacting the statute.” WTWV, Inc. v. National Football League, 678 F.2d 142, 143 (11th Cir.1982). Unquestionably, the statute’s primary objective is “the development of viable urban communities, by providing decent housing and a suitable living environment, and expand the economic opportunities, principally for persons of low- and moderate-income.” 42 U.S.C. § 5301(c). To interpret “maximum feasible priority” to allow approval of projects that have as their principal beneficiaries persons who are not of low- or moderate-income would appear inconsistent with this primary goal, the “very heartbeat of the bill,” Additional Views of Mr. Taft, S.Rep. No. 693, 93d Cong., 2d Sess., reprinted in 1974 Code Cong. & Ad.News 4273, 4439, and to violate the rule of statutory interpretation set forth immediately above. The conflict is not easily resolved. After examining the relevant legislative and regulatory history, as well as arguments of counsel, however, we conclude that the statutory requirement of “maximum feasible priority” does not embody a required floor that in each case the funds at least principally benefit low- and moderate-income persons. While it seems anomalous that the requirements of the statute would allow authorization of grants that do not satisfy the primary objective of the statute, the legislative history accompanying the original adoption of the “maximum feasible priority” language leads us to conclude that Congress rejected an explicit percentage floor for the use of funds. If it intended another percentage minimum to replace the eighty percent figure it rejected, it could have said so. Although Congress has been presented with various opportunities to clarify the meaning of “maximum feasible priority,” it has declined to do so. It appears that while the systemic goal behind the statute was principally to benefit low- and moderate-income persons, Congress did not intend for that goal to be met absolutely by every funded project. See Staff Report on the Community Development Block Grant Program, Subcommittee on Housing and Community Development of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess. 5 (1977). The history of the implementing regulations is consistent with this interpretation. In summary, we conclude that “maximum feasible priority” does not embody the principal benefit requirement. The district court therefore properly interpreted the principal benefit requirement as regulatory and waivable under 24 C.F.R. § 570.4. III. Waiver of the Principal Benefit Requirement The district court correctly noted that the standard of review for HUD actions is whether they are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Mejia v. HUD, 688 F.2d 529, 531 (7th Cir.1982). The Secretary of HUD has authority to waive the principal benefit requirement only if “it is determined that undue hardship will result from applying the requirement and where application of the requirement would adversely affect the purposes of the Act.” 24 C.F.R. § 570.4. The issue is whether the Deputy Assistant Secretary abused his discretion in finding that application of the regulation would result in undue hardship and adversely affect the purposes of the block grant statute. We conclude that he did not. A. Undue Hardship In a letter supporting his decision to waive the principal benefit requirement, the Deputy Assistant Secretary concluded that the project qualified as an activity benefiting low- and moderate-income persons and that imposition of the requirement would result in undue hardship. His conclusions were founded upon three considerations. First, Lake Alma was the hub of a larger development program that began over a decade ago under the Model Cities Program, which was instituted in 1966 to provide financial assistance to cities in an effort to overcome economic and social problems associated with urban life. 42 U.S.C. § 3301. In developing its program, Alma sought to alleviate area problems of poverty, a critical shortage of recreational facilities and the need for industrial development. To respond to these problems, the city proposed the development of four cornerstone projects: an air/rail industrial park, improved water and sewerage facilities, modernized airport services, and Lake Alma. The lake was intended to provide recreational opportunities and to induce economic development. Although each of the four projects was designed to provide benefits independent of the other three, Lake Alma was viewed as the “urban shaper of the four,” and as such, millions of dollars of public and private investment were spent developing and constructing projects that conceptually and physically are connected to the lake. A fifty-two unit home for the elderly was built in a location overlooking the proposed shore of the lake; the city’s urban renewal projects were built next to the proposed lake; and a recreational park was planned to surround Lake Alma on three sides, some facilities of which have already been completed. In fact, most of Alma’s revitalization projects, including the cornerstone projects, were designed and constructed in anticipation of Lake Alma. A second reason offered by the Deputy Assistant Secretary in support of his waiver is the potential waste of large sums of local and federal funds already invested in the plan. In addition to the $500,000 expended under the Model Cities Program, over $2.3 million in block grant funds had been allocated to the project from 1975 through 1977. Since the principal benefit regulation did not become effective until 1978, the Deputy Assistant Secretary concluded that failure to waive the requirement would effectively hold these previously allocated funds “hostage” to the appropriations set aside for 1978 and 1979. The Deputy Assistant Secretary’s third consideration supporting his conclusion that undue hardship would result if the principal benefit regulation were not waived was the near-majority low- and moderate-income population in the area benefiting from the project (46.2% in Bacon County; 41.9% in the twenty-one county service area). Although the regulation was not completely satisfied by these figures, he noted that the standard was nearly met and that the project did qualify as an activity benefiting low- and moderate-income persons. When examining decisions of agency officials, the reviewing court is not empowered to substitute its own judgment for that of the agency. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); McHenry v. Bond, 668 F.2d 1185, 1190 (11th Cir.1982). Review is limited to determining whether the agency has articulated “a rational connection between the facts found and the choice made.” Bowman, 419 U.S. at 285, 95 S.Ct. at 442 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). Moreover, in assessing the rationality of an agency decision, the court must give appropriate deference to the wisdom of agency officials in deciding issues within their area of expertise. See McHenry, 668 F.2d at 1190; Watkins Motor Lines, Inc. v. I.C.C., 641 F.2d 1183 (5th Cir. Unit B 1981). The Deputy Assistant Secretary concluded that undue hardship would result if the principal benefit regulation were not waived. We find his decision wholly rational and supported by substantial evidence in the record. If the project is defeated by rigid application of the regulation, the citizens of Bacon County and the surrounding area, many of whom are intended beneficiaries of the block grant program, could lose the benefits of a development program that was conceived years before promulgation of the regulation, implemented to a significant extent to date, and in large part dependent upon the completion of its final “cornerstone,” Lake Alma. Considerable federal funds, expended or allocated, would be wasted as well. In addition, the program is related to the plight of low- and moderate-income persons. Statistical evidence indicates that a substantial minority, if not a numerical majority, of the users of Lake Alma will be lower income individuals. Given these circumstances, a finding of undue hardship was reasonable. B. Adverse Effect on Purpose of the Act In order to waive the principal benefit provision, the Secretary of HUD must also make a finding that application of the standard would adversely affect the purposes of the Act. 24 C.F.R. § 570.4. In concluding that it would, the Deputy Assistant Secretary determined that enforcement of the regulation would frustrate two purposes of the Act: (1) encouraging community development activities which are consistent with comprehensive local and area-wide planning and (2) fostering the undertaking of community development activities in a coordinated and mutually supportive manner by federal agencies and programs, as well as by communities. See 42 U.S.C. § 5301(d)(2), (4). Appellants do not dispute that these two purposes of the Act will be adversely affected by application of the principal benefit standard. They maintain, however, that these are only subsidiary purposes of the block grant statute and that the primary purpose of principally benefiting low- and moderate-income persons will be adversely affected if the regulation is waived. Taking HUD’s position to its logical extreme, appellants contend, the agency could provide funding for a project completely outside its area of concern and without regard to the statute’s purpose by waiving its regulatory requirements. Appellants’ argument, simply stated, is that HUD abused its discretion when it waived application of a provision that transforms a statutory purpose, in this case the purpose of principally benefiting low- and moderate-income persons, into a regulatory requirement. Our adoption of this position, however, would in effect nullify our holding that the principal benefit requirement is not statutorily mandated but is only regulatory and therefore waivable. To accept appellants’ argument would mean that by adopting a presumably waivable regulation parroting the stated legislative purpose, HUD would have inadvertently elevated that statutory purpose to the level of an express, mandatory statutory requirement. In essence, HUD would be precluded from waiving any regulation that furthers the primary purpose of the Act, because waiving application of the regulation would be contrary to legislative intent. Such a rule would deprive HUD’s waiver authority under 24 C.F.R. § 570.4 of all practical significance. The issue under § 570.4 is not whether waiving the principal benefit standard will itself further the purposes of the statute. Rather, the question is whether given the circumstances presented to the Secretary, “application of the requirement would adversely affect the purposes of the Act.” 24 C.F.R. § 570.4. Here, application of the principal benefit requirement would adversely affect two of the stated purposes enumerated in 42 U.S.C. § 5301(d). Moreover, if the regulation is enforced and Lake Alma is not completed, the primary purpose of the statute will also be adversely affected: even if the primary objective of the Act will not be absolutely met by the project, that objective will be furthered significantly by construction of the lake. Precluding HUD funding for the lake would adversely affect that purpose by eliminating the recreational and economic benefits of the lake to the near-majority low- and moderate-income persons living in the service area. In sum, there is sufficient support for the Deputy Assistant Secretary’s conclusion that application of the principal benefit regulation would adversely affect the purposes of the Act. Finding his decision rational and supported by the evidence, we affirm the district court’s holding that HUD’s waiver of the regulation was not an abuse of discretion. See McHenry v. Bond, 668 F.2d 1185 (11th Cir.1982). IV. Supplemental Environmental Impact Statement Appellants contend that adoption of the Mitigation Plan is a significant change requiring that an SEIS be prepared. The district court concluded that release of the funds by HUD and issuance of the § 404 permit by the Corps was proper because a conclusion by the Alma officials, who had assumed the position of the responsible federal officials under 42 U.S.C. § 5304(h), that no SEIS was required, was “reasonable.” We disagree, and reverse and remand on this ground. In Environmental Defense Fund v. Marsh, 651 F.2d 983, 992 (5th Cir. Unit A 1981), the court noted that “the legal standard of the need for a supplemental EIS ... is whether the post-[original EIS] changes in the [project] will have a ‘significant’ impact on the environment that has not previously been covered by the [original] EIS.” If a “significant” impact on the environment will result, either “in qualitative or quantitative terms,” from subsequent project changes, an SEIS is required. Id. at 991. In reviewing an agency decision on the necessity for an SEIS, “the reviewing court should uphold the agency’s decision only if it is reasonable, rather than use the deferential ‘substantial evidence’ standard.” Id. at 992 (citing Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424-25 (5th Cir.1973); Save Our Ten Acres v. Kre-ger, 472 F.2d 463, 466-67 (5th Cir.1973)). The district court concluded that the decision of the Alma officials not to submit an SEIS covering the Mitigation Plan was “reasonable” because “the change is insignificant quantitatively and non-existent qualitatively.” National Wildlife Federation v. Marsh, CV No. 582-98 at 35 (S.D.Ga. Mar. 3, 1983) (emphasis added). At least the second half of this conclusion is clearly erroneous. The Alma officials, in conveying to HUD their opinion that no SEIS was required, relied on the concurrence among all relevant governmental agencies that “no substantial adverse effect to the environment would result from ... construction [of the GTRs] in conjunction with Lake Alma.” They also relied on a letter by the EPA Administrator agreeing with the Corps that the waters to be released for the GTRs “are not expected to adversely affect its water quality.” Neither of these agencies nor the Alma officials focused on the degree of mitigation, the beneficial impact, of the Mitigation Plan. In EDF v. Marsh, the court reversed the district court’s conclusion that the agency decision not to supplement an EIS was reasonable. The court made clear that even if post-EIS changes in a project are beneficial to the environment or are intended to mitigate environmental impact, if those changes are significant, a supplemental statement is required: The proper question is not the intent behind the actions, but the significance of the environmental impacts. And even if the Corps was correct in deciding that the new land use will be beneficial in impact, a beneficial impact must nevertheless be discussed in an EIS, so long as it is significant. NEPA is concerned with all significant environmental effects, not merely adverse ones. 651 F.2d at 993. The court also emphasized that the district court erred in assessing the significance only of the increased acreage needed for the mitigation project because where “the new land would be used in a way that had significant effects on the environment, which obviously could not have been addressed in the [original] EIS,” an SEIS is required. Id. (emphasis supplied). The lower court in this case relied on a portion of the EDF v. Marsh opinion in which the court concluded that one of the several post-EIS changes did not require an SEIS. This reliance was misplaced. The change deemed insignificant in that case involved a 9 million cubic yard increase in the amount of spoil excavated from a 260 million cubic yard excavation plan. Plaintiffs had offered no proof of a qualitatively significant impact, and the quantitative effect, a 3.5 percent increase in spoil removal, was considered insignificant. Here, however, appellants have shown that the Mitigation Plan involves a number of proposed project changes that are likely to have a significant, though beneficial, impact on the environment in and around the proposed lake. The Mitigation Plan proposes the construction of 194 acres of GTRs, which represent not only an increase in the quantity of land affected, but also a change in the character of the land itself. The GTRs would involve annual flooding, selective clearing, creation of five percent permanent water, development of small islands, planting grasses or sedges, and erecting wood duck boxes. Moreover, in addition to the six GTRs, the plan establishes a program for intense wildlife management throughout the entire project area. The wildlife management plan includes: selective clearing of 466 acres of wooded swamp; creation of small pools of standing water; planting of oak trees; development of an emergency access road; construction of firebreaks and prescribed burning to manage sand ridge areas; selective thinning and burning of planted and natural pine areas; and staged disking, seeding and mowing of old fields, pastures and rights-of-way. The GTRs and wildlife management plan are therefore easily distinguishable from the increase in excavated spoil in EDF v. Marsh. Here the plan envisions a change in the types of activities to be undertaken on the land, not merely an incremental increase in an activity that was fully evaluated in a previous EIS. Until proposal of the Mitigation Plan by FWS, all interested federal agencies had opposed the project on environmental grounds. The § 404 permit was approved by the Corps only on the condition that the plan be implemented. FWS approved the project conditioned on acceptance of the plan, and EPA withdrew its objections only after adoption of the plan and after con-eluding that the plan itself would not have adverse effects on water quality. Given the plan’s detailed proposals for mitigating any adverse environmental effects resulting from the creation of Lake Alma, as well as the role of the plan in allaying the environmental concerns of all relevant federal agencies, we conclude that the Mitigation Plan will have a significant qualitative environmental impact. The conclusion of Alma officials to the contrary is not reasonable and the district court’s approval of that conclusion is clearly erroneous. V. § 404 Permits for the Green Tree Reservoirs Appellants argue finally that the Corps acted improperly in issuing the § 404 permit for Lake Alma without first requiring application for § 404 permits required for the construction of the GTRs. The § 404 permit granted for Lake Alma expressly is conditioned on construction of six GTRs. These GTRs will require their own dams, which, appellants argue, will require individual § 404 permits. Appellants contend, therefore, that Lake Alma cannot lawfully be constructed unless the permits for the GTRs are first applied for and issued. The district court found appellants’ argument logically appealing but held that appellants had the burden of proving that the GTRs will require separate permits. Since the precise location of the GTRs is not yet definite, the court concluded that appellants had failed to meet this burden, and therefore issuance of the Lake Alma permit prior to consideration of the need for GTR permits was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. We disagree. Issuance of a permit before engaging in a determination of the need for the GTR permits would allow Lake Alma to be- constructed even though at a later date it is determined that additional § 404 permits are needed and cannot be obtained. Lake Alma, the environmental soundness of which is conditioned on construction of the GTRs, would thus be constructed without the GTRs. For the Corps to act in the face of this open question was a clear error of judgment and thus an abuse of discretion. See Citizens to Protect Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 186 (1971). While appellants have the burden of demonstrating an abuse of discretion or arbitrary agency action, this burden is met by showing that there is a substantial issue as to whether or not permits will be required for the GTRs. The district court erred in placing on the appellants the burden of conclusively closing the question. The Corps’ internal procedures require: All activities which are reasonably related to the same project and for which a Department of the Army permit would be required should be included in the same permit application. The District Engineer should reject, as incomplete, any permit application which fails to comply with this requirement. For example, permit application for a marina shall include dredging required for access as well as any fill associated with construction of the marina. March 1, 1979, DAEN-CWO-N Directive on Permit Procedures. The parties do not dispute that the GTRs are “reasonably related” to the overall project. The only no-narbitrary reason for not requiring contemporaneous application for the GTR permits would be a conclusive demonstration at this juncture that the permits were not necessary. Such a showing has not been made. At best, there is a possibility that all of the GTRs could be covered by a nationwide permit, making application for individual permits unnecessary. The district court did not hold to the contrary. The Decision Memorandum of the Corps, recommending issuance of the Lake Alma § 404 permit, indicates that a site inspection was undertaken to determine whether “the green tree reservoirs included in the Mitigation Plan would require a public notice with opportunity for public hearing and would require a 401 [sic] water quality certification.” The site inspection revealed that, of the tentative green tree reservoir locations, one (area A-l) was covered by a nationwide permit, that four could probably be constructed so as to be covered by a nationwide permit, and that one would require an individual permit. Furthermore, the Corps believes that the green tree reservoir acreage required by the Mitigation Plan could be satisfied by green tree reservoirs constructed under a nationwide permit by relocating the one reservoir which would now require an individual permit. The Corps would also require the permitee to apply for any permits that may be required to construct any of the green tree reservoirs. Aug. 29, 1980, Decision Memorandum for the Assistant Secretary of the Army (Civil Works), page 3 (emphasis added). The final word from the Corps, a November 10, 1981, letter from the Corps District Engineer, accompanying the issuance of the draft permit, states: “Based on their final location, construction of the green tree reservoirs may require additional Department of Army permits.” If, as suggested, any permit applications are required, the Corps’ procedures for consolidated permit application, including public comment, must be followed before the Lake Alma permit, which is conditioned on construction of the GTRs, is issued. Appellees argue, however, that the Corps has developed a policy of imposing mitigation plans, and determining whether permits are necessary therefor, as conditions subsequent to issuance of . permits for the entire project. As evidence of this policy, they refer to a statement of the Corps’ internal procedures which authorizes a district engineer to condition the issuance of a permit on the implementation of a proposed mitigation plan. Appellants argue that we are prohibited under Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 543-44, 98 S.Ct. 1197, 1211, 55 L.Ed.2d 460 (1978), from interfering with this “established” procedure. Neither the record nor the findings of the district court support appellees’ interpretation of Corps policy. On the contrary, this case presents a unique situation. As stated by the Deputy Assistant Administrator for Water Planning Standards of the EPA in July of 1979: To the best of our knowledge, this is the first case to come to the attention of this office in which a proposed mitigation feature of a project itself would require a Section 404 analysis. We wanted to alert you to this problem at this time, early in the process, in the interest of avoiding unnecessary delays in the further processing of this important case. Given the indication that this is the first case of its kind and the absence of any support in the record for the notion that the Corps has developed a consistent condition subsequent procedure, we reject appellees’ argument. As quoted supra, the Corps’ usual procedure is to require all related permit applications to be submitted together. Although the Corps does have a procedure for conditioning permits on implementation of a mitigation plan, the memorandum describing that procedure does not purport to modify the general policy pertaining to permits for related activities. It does not discuss the procedure for review of permits that may be necessary for the mitigation plan itself. It certainly does not state that the necessary mitigation plan permits could be obtained at a date after approval of the initial permit. Such a policy would be directly contrary to the usual procedure' of requiring contemporaneous permit application of all related project activities. In the absence of a stated policy to the contrary, the Corps’ normal procedure should be followed. This may be an unusual case, but that is no reason to abandon the well-settled internal Corps’ policy of consolidated permit application. The applicable procedure established by the Corps within the meaning of Vermont Yankee is one of contemporaneous application for all required permits. We impose no additional procedural requirement here. Because the locations of the GTRs have not been determined, the district court concluded prematurely that no § 404 permits would be necessary. If the GTRs will not be covered by a nationwide permit, Corps procedure requires it to review and approve individual permit applications before issuance of the overall project permit. Statements by the Corps itself indicate a substantial likelihood that appellants will prevail in establishing a need for additional § 404 permits. The district court erred in deciding otherwise in the face of this open question. We therefore remand to enable the district court to decide, once the GTR locations are determined, whether additional permits are necessary. VI. Conclusion The district court erred in concluding that appellants had shown no likelihood of success on the merits. Appellants have made a sufficient showing on the need for an SEIS and the impropriety of issuing the § 404 permit prior to a determination of the need for additional permits for the GTRs. Appellants also have carried their burden as to the other requirements for preliminary injunctive relief. Irreparable injury is readily apparent. Absent injunctive relief, the funds in question will be expended, the wetlands will be destroyed, and those appellants who are landowners will lose their land. Issuance of the injunction may cause monetary injury to the appellees. Failure to grant the injunction, however, will cause irreparable injury to the appellants which outweighs the threatened harm to the ap-pellees. Issuance of the injunction will serve the public interest, given the substantial issues involved both as to the proper use of federal funds and protection of the environment. Hence, the preliminary injunction is granted and this matter is remanded to the district court for further proceedings. AFFIRMED IN PART, REVERSED IN PART and REMANDED. . Appellants include the National Wildlife Federation, the Georgia Wildlife Federation, the Hurricane Creek Protective Society, and various owners of property that will be affected by construction of Lake Alma. Appellees include John Marsh, Secretary of the Army; the Department of the Army and the Army Corps of Engineers; HUD; Samuel Pierce, Jr., Secretary of HUD; the City of Alma and its various officials; Bacon County, Georgia; and the Alma-Bacon County Community Development Agency. The district court held that appellants had standing to challenge HUD’s release of the funds. Appellees do not challenge this ruling on appeal. . 24 C.F.R. § 570.4 (1983) provides: The Secretary may waive any requirement of this part not required by law whenever it is determined that undue hardship will result from applying the requirement and where application of the requirement would adversely affect the purposes of the Act. . Appellants are entitled to preliminary injunc-tive relief only if they show: (1) a substantial likelihood of success on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) the threatened irreparable injury to them outweighs the threatened harm the injunction may do to appellees; and (4) granting the preliminary injunction will not disserve the public interest. Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 435, (5th Cir. Unit B 1981). . In denying injunctive relief the district court inferred that appellees had been forced to jump through enough hoops imposed on them by “well-intentioned legislation” which has created a “bureaucratic morass.” National Wildlife Federation v. Marsh, CV No. 582-98 (S.D.Ga. Mar. 3, 1983). It is not for the federal courts to editorialize about the wisdom of legislation. Rather, it is for us to apply the law, be it confusing or clear, well-intentioned or not. We may ali sympathize with appellees’ desires to construct Lake Alma, but that sympathy must not affect our application of the law. . The structure of the “Background” information is taken substantially from the district court opinion. . Green tree reservoirs are small, shallow, wooded impoundments that are flooded in the fall to provide habitats for certain types of wildlife, especially water fowl. The GTRs are then emptied in the spring when the trees are ending their period of winter dormancy and the wildlife has less need for the reservoirs. . Nationwide permits are those issued by regulations and requiring no separate permit application. . See note 2 supra. . Senators Tower, Packwood, and Brock criticized many of the limitations in the Senate Committee version of the bill as strictly limiting the discretion of local communities and almost certainly “givfing] rise to a variety of interpretative problems, and ... openfing] the door to future efforts by Federal bureaucrats to impose their own thinking as to desirable community objectives and strategies upon local programs.” Supplemental Views of Messrs. Tower, Packwood, and Brock, 1974 U.S.Code Cong. & Ad.News at 4434. In reference to the eighty percent requirement in particular the three Senators stated: [T]he provision with all the potential uncertainties as to what benefits are both “direct” and “significant” is almost certainly to become a source of widespread contention and controversy. Communities may find themselves arguing with Federal program reviewers who have their own ideas as to what qualifies and what does not in the context of local demography and neighborhood conditions. Id. Senator Taft, on the other hand, expressed support for the provision, support apparently ratified by the entire Committee as the Committee bill contained the provision. [T]o accompany the increased local flexibility resulting from the merger of these programs, a clear federal directive is needed which channels (but does not mandate specifically) the use of funds. With the advent of general revenue sharing ... there is no reason to create another fund transfer program which simply provides localities with more federal money to use virtually as they see fit. In addition, the benefits and injuries caused by any community development program can accrue to citizens of widely varying income levels depending on the specific program. That quality makes community development funds all the more susceptible to questionable use if no specific directives for use are given. Furthermore, the essence of any community development program — housing and physical development and redevelopment— probably deals more fundamentally with the problems of economic and racial integration, which have proved so difficult for localities to tackle even with strong federal directives, than any other federal program. Because of such problems, I feel that community development is one of the least suitable types of programs areas [sic] for a totally “hands off’ revenue sharing approach. Accordingly, I consider strong federal directives for the program not to constitute support of bureaucrats “second-guessing,” but rather to be a necessity for fulfillment of the federal responsibility to the taxpayers to promote the use of their money in as productive a manner as possible. I consider the need for such a directive to be fulfilled adequately by the requirement that unless HUD grants an exception, at least 80% of a community’s funds must be expended for activities intended to be of direct and significant benefit to blighted or deteriorating areas or to families with low and moderate incomes. This provision affects the very heartbeat of the bill because it requires most funds to be spent for what have always been considered to be the most important purposes of federally supported community development program, assuming that “direct and significant” is interpreted in a sensibly broad manner. In view of HUD’s authority to interpret the broad requirement and to make exceptions, I believe that any administrative burden caused will be outweighed by a greater understanding of and commitment to these purposes at both the federal and the local levels. Additional Views of Mr. Taft, 1974 U.S.Code Cong. & Ad.News at 4439 (emphasis added). . On October 4, 1982, HUD published proposed amendments to 24 C.F.R. § 570, though their effective date was not announced: The overall thrust of these regulations is to eliminate unnecessary requirements that exceed statutory intent.... A principal objective of the amendments ... was “to ‘deregulate’ programs ... where Federal regulatory intrusion has unnecessarily encumbered the process of receiving Federal funds without a concomitant contribution to program quality....” Proposed Amendments to Community Development Block Grants, 47 Fed.Reg. 43900 (1982) (quoting S.Rep. No. 87, 97th Cong., 1st Sess. 2 (1981)). Although the proposed amendments retain the principal benefit language as part of the description of the statute’s “primary objective,” the phrase has been dropped from the enumerated program requirements. The grantee is required to certify only that the “projected use of funds [will] give maximum feasible priority to activities which benefit low and moderate income families....” 47 Fed. Reg. at 43923 (1982) (to be codified at 24 C.F.R. § 570.302, .303(e)). While this modification is not conclusive proof of Congress’ displeasure with HUD’s previous interpretation of the statute, it is strong evidence that HUD believed inclusion of a principal benefit provision was no longer the intent of Congress. . The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . We base this conclusion primarily on the 1974 Congress’ rejection of the eighty percent requirement, its failure explicitly to replace it with any other percentage requirement and the absence of any principal benefit requirement in the 1974 regulations that would evidence a statutorily mandated interpretation of “maximum feasible priority” to include a principal benefit requirement. . Demonstration Cites and Metropolitan Act of 1966, 42 U.S.C. §§ 3301-3374. . Feb. 28, 1979, Referral Report of Col. Tilford C. Creel, District Engineer, Army Corps of Engineers at 2-3. . The dissent suggests a luxury condominium as an example. We note that even if HUD waived its principal benefit regulation, such a project could not be funded unless it satisfied the statutory maximum feasible priority requirement. Moreover, waiver of the regulation for a project so clearly unrelated to the interests of low- and moderate-income individuals would be contrary to legislative intent and would likely be an abuse of agency discretion. One of the facts relied upon by the Deputy Assistant Secretary in support of the waiver was that the project would very nearly satisfy the principal benefit standard by directly benefiting a large percentage of the lower income population. Even though Lake Alma does not satisfy a fifty-percent benefit threshold, its construction will significantly further the systemic goal of the statute by providing substantial benefit to individuals in the low- and moderate-income community. A luxury condominium, which would provide only speculative, indirect benefits to the surrounding community, would not further the purpose of the statute to any significant extent. . Decided July 13, 1981, EDF v. Marsh is binding precedent on this panel. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). . Plaintiffs’/Appellants’ Exhibit 23, Enclosure 1, page 2 (emphasis added). . Plaintiffs’ /Appellants’ Exhibit 23, Enclosure 1-B, page 2 (emphasis added); see also Defendants’/Appellees’ Exhibit 5, page 20. . Because we conclude that the Mitigation Plan constitutes a significant qualitative impact on the environment, we need not decide whether its quantitative effect is also significant. Abstract numerical comparisons are frequently misleading and inconclusive, as this case illustrates. The GTRs would affect about 194 acres of the 1400 proposed for the entire project, an impact on approximately 14% of the total project land. Compared with the 3.5% increase in land affected by the change found insignificant in EDF v. Marsh, 651 F.2d at 996 n. 15, this change might be considered a significant quantitative impact. Using volume of water affected rather than acres of land, however, the figures show that the Mitigation Plan will affect only an additional 3.6% of inland water, an arguably insignificant increase. It is not immediately apparent which figure would be more relevant. . Appellees assert that the record does not support this conclusion but rather shows that issuance of the permit was forthcoming regardless of the Mitigation Plan and based solely on a study by a Mr. Macomber, opining that the wetlands at issue here are a “biological desert.” We reject this argument. The record shows that at least a combination of the effect of the Macomber report and the Mitigation Plan led to the decision and that but for the Mitigation Plan approval would not have been granted. . The EPA originally argued that the plan was insufficient to mitigate the environmental impact, but eventually withdrew all objections, explicitly referring to the Mitigation Plan. . We emphasize that we have no quarrel with the conclusion that the GTRs will cause no impact on water quality. The Mitigation Plan was intended to mitigate the effect of the project on wildlife considerations. It is this significant impact that warrants an SEIS. If there were no significant impact from the plan it would not qualify as a Mitigation Plan at all. We defer to the judgment of the FWS and the Corps that it is indeed a Mitigation Plan. . Appellees rely on the following statement of internal Corps procedure: Mitigating environmental measures suggested by Federal or state agencies with responsibility for assessing the environmental impact of the activity covered by the permit may be considered by the district engineer. The discretionary authority of the district engineer to so condition permits to effect mitigation is set forth in DAENO-CWO-N letter dated 13 February 1978. March 1, 1979, DAEN-CWO-N Directive on Permit Procedures. . In Vermont Yankee the Court stated: “Absent constitutional constraints or extremely compelling circumstances the ‘administrative 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.” ’ ” 435 U.S. at 543, 98 S.Ct. at 1211 (quoting FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965) (quoting FCC v. Pottsvilie Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed.2d 656 (1940))). . Plaintiffs’/Appellants’ Exhibit 16, page 2. . Appellees argue that they could not have complied with this procedure given that the Mitigation Plan was not adopted until after the original permit application had been filed. Consistent with established procedure, however, appellees are free to amend their permit application to include the Mitigation Plan if the Corps concludes that permits for the GTRs will be necessary.

National Wildlife Federation v. Marsh

JOHNSON, Circuit Judge, concurring in part and dissenting in part: I concur in all of the opinion of the majority except Sections II and III. I dissent from Sections II and III. I do not believe that the officials of the Department of Housing and Urban Development had the authority to waive the principal benefit regulation of the governing statute, 42 U.S. C.A. §§ 5301-5320, and authorize the release of public funds for a project that it had found would not principally benefit low-and moderate-income persons. If the requirement that a Community Development Block Grant principally benefit low-and moderate-income persons is a statutory requirement, HUD has no authority to waive it. If the requirement is merely regulatory, then HUD may waive the requirement “whenever it is determined that undue hardship will result from applying the requirement and where application of the requirement would adversely affect the purposes of the Act.” 24 C.F.R. § 570.-4. In concluding that the “principal benefit” requirement was regulatory only, the district court deferred to the agency. The court concluded that the agency’s position was reasonable because it was consistent with the language of the statute. The court acknowledged that the “primary objective” of the statute was to principally benefit low-and moderate-income persons, 42 U.S.C.A. § 5301(c), but the court deferred to the agency’s argument that the only statutory requirement is that the project have “been developed so as to give maximum feasible priority to activities which will benefit low-and moderate-income families.” 42 U.S.C.A. § 5304(b)(3). I cannot agree with the majority’s affirmance of that part of the district court’s action. In order for an agency interpretation to be granted deference, it must be consistent with the congressional purpose. Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974). HUD’s interpretation of this statute is not entitled to deference because it is clearly contrary to the purpose of the statute. In fact, there is no support in the legislative history of the statute for a project such as this one. HUD’s interpretation of this statute would permit funding of a luxury condominium as long as it benefits low-and moderate-income persons to the maximum extent feasible. Conceivably, under this interpretation the luxury condominium that would enhance the skyline for the low-and moderate-income persons would be the benefit “to the maximum extent feasible.” Appellants on the other hand assert that to be funded a project must at a minimum principally benefit low-and moderate-income families. Apparently, this requirement was not expressed as a requirement because the drafters of the statute did not think it was necessary — it was stated as the “primary objective” of the statute. The statute then explicitly requires the Secretary of HUD to determine that low-and moderate-income persons benefit to the maximum extent feasible. 42 U.S.C.A. § 5304(b)(3). When 42 U.S.C.A. § 5304(b) was being drafted, the Senate bill contained a provision prohibiting more than 20% of an applicant’s community development funds to be used for activities which do not directly and significantly benefit low-and moderate-income families or blighted areas. Conf.Rep. No. 93-1279, reprinted in 1974 U.S.Code Cong. & Ad.News at 4453. There was no question that low-and moderate-income persons were to principally benefit. In order to permit more flexibility with funds, the conference report replaced the Senate provision with a “maximum feasible priority” requirement. Id. When the 1977 amendments to the statute were added, the House Conference Report stated: Application disapproval The Senate amendment contained a provision not included in the House bill which provided for the disapproval of block grant applications which do not comply with the requirements of the block grant program and specifically with the primary purpose that the program principally benefit persons of low-and moderate-income. The conference report contains the Senate provision amended to specifically incorporate the present law requirements that no application be approved unless it: (1) aids in the prevention or elimination of slums and blight, (2) principally benefits persons of low-and moderate-income, or (3) meets a need of particular urgency, (emphasis supplied). Conf.Rep. No. 95-634, reprinted in 1977 U.S.Code Cong. & Ad.News at 2965. Given the fact that the House Conference explicitly refers to “the present law requirement” that an application must principally benefit persons of low-and moderate-income, it is clear that HUD could not waive this statutory requirement. Even if this requirement were only regulatory, under 42 C.F.R. § 570.4 it could not be waived. Waiver would be contrary to the purposes of the Act. The waiver action by HUD is, in my judgment, completely contrary to what Congress intended and this Court should not put its stamp of approval upon such action. I DISSENT from Sections II and III of the majority’s opinion. I CONCUR in the remaining portions of the opinion.

Save Our Wetlands, Inc. v. Sands

CLARK, Chief Judge: Save Our Wetlands, Inc., a nonprofit Louisiana corporation, filed this suit in an effort to block the construction of a 25-mile long electric transmission line along the west bank of the Mississippi River. The organization appeals from a district court dismissal of the complaint under Rule 41(b) of the Federal Rules of Civil Procedure. We affirm. I. The Facts In 1969, Louisiana Power and Light Company (LP & L) began acquiring property for the right-of-way for a transmission line corridor between Taft, Louisiana and Westwe-go, Louisiana along the west bank of the Mississippi River. Westwego is the site of a company switching station from which power is provided to the metropolitan area of New Orleans. The corridor would eventually accommodate three lines, one 500 kilo-volt and two 250 kilovolts. In 1979, upon obtaining all of the necessary rights-of-way for the project, the utility filed an application for section 10 and section 404 permits with the New Orleans District of the U.S. Army Corps of Engineers. The section 10 permit was sought because the transmission lines will cross three navigable water-bodies (Bayou Verrett, Cousins Canal, and an unnamed waterway). The section 404 permit was sought because of a concern that the removal of debris cleared from the corridor might be considered a discharge of dredged or fill material into navigable waters. The corridor will transverse 214 acres of wooded wetland and 244 acres of nonwood-ed wetland. The wooded wetland will have to be cleared and the utility has decided to windrow the fallen trees and sheared limbs. The windrows will be constructed along one side of the corridor and the timber and vegetation will be allowed to deteriorate at a natural rate. Herbicides approved by the Environmental Protection Agency will be used to stunt the growth of vegetation to prevent interference with the transmission lines. No herbicide runoff in the adjacent wetlands is anticipated. When the utility submitted its permit applications, it also submitted an Environmental Assessment which was prepared by Dr. Ronald H. Kilgen. Dr. Kilgen, a professor at Nichols State University, was hired by the utility to prepare the assessment. The assessment reviewed three alternative routes suggested by LP & L and found them to be inadequate. Alternate route one followed an existing right-of-way on which two transmission lines run. It was rejected because additional land would have to be purchased in high-use residential and commercial areas and because multiple transmission lines in one corridor create a high risk of power outage due to hurricanes and tornadoes. The second alternative followed Louisiana Route 3127 to U.S. Highway 90. The assessment rejects the alternative as being aesthetically and environmentally unacceptable. The third alternative ran along the same line on the proposed corridor except for a portion which would run to the south of the proposed corridor. It was rejected because it would put transmission lines between an eagle’s nest and the eagles’ natural feeding area. The route would also be closer to the feeding area of thousands of lesser scaup and would ruin the aesthetic value of wooded levees lining the Louisiana Cypress Lumber Canal. The Corps, based upon the assessment, made a preliminary judgment that the project’s environmental effects were not significant enough to warrant an environmental impact statement. On April 27, 1979, the Corps issued an initial “Findings of Fact” in which it announced that no environmental impact statement was necessary, but noted that this was subject to change should additional information be brought to its attention. On May 8, 1979, the Corps issued a public notice of LP & L’s pending permit application describing the nature and location of the proposed project. The notice stated the Corps’ view that no environmental impact statement was needed. It was circulated to more than 2,000 organizations and individuals and called for comments until June 7, 1979. Save Our Wetlands submitted no comments and no request was made for a public hearing. The Corps replied to at least one response and then, on August 24, 1979, it issued its final Finding of Fact affirming its early determination that no environmental impact statement was necessary. The section 10 permit was issued to LP & L on September 24, 1979. Save Our Wetlands filed suit on March 19, 1980 challenging the issuance of the section 10 permit and alleging that the project required a section 404 permit. The organization sought to have the work enjoined until an environmental impact statement was completed. The case was tried before a district judge who granted the defendants’ motion for involuntary dismissal under Rule 41(b) of the Federal Rules of Civil Procedure after Save Our Wetlands had completed its case. The organization appeals. . II. Standing We must consider first LP & L’s contention that Save Our Wetlands does not have standing to present this claim. The company contends that under the Administrative Procedure Act, the plaintiff must allege and show that it is adversely affected or aggrieved by the agency’s action. 5 U.S.C. § 702. The organization alleged here that its members’ economic and recreational use of the area may be permanently compromised by the electric transmission wires. LP & L argues that the organization failed at trial to show any harm. In addition, the utility alleges that Save Our Wetlands’ Articles of Incorporation relate to the use of areas on the east bank of the river and that no member testified about their use of the transmission line corridor area. Save Our Wetlands points out, however, that Mrs. Janet Moulton, its president, testified that she went fishing on the west bank in the area of Paradis Canal which is approximately a half mile from the proposed line. Organization may have standing to sue on behalf of their members if they meet the “aggrieved” party standard of section 10 of the Administrative Procedure Act, 5 U.S.C. § 702. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). An organization will have standing when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. O’Hair v. White, 675 F.2d 680, 693 (5th Cir.1982) (en banc) (quoting Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)). For the organization’s members to have standing under APA Section 10, they must suffer injury in fact and the alleged injury must be to an interest arguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated. SCRAP, 9.3 S.Ct. at 2415. Injury in fact is not confined to economic injury, but may include injuries to aesthetics and well-being. Id. The injury must be direct, however, and affect the members. Id. 93 S.Ct. at 2416. The evidence on standing in this case is admittedly thin, but we find, nonetheless, that the first prong of the Washington Apple test is met. The organization’s Articles of Incorporation state that the [f]urther purposes of the corporation are to explore, enjoy, and preserve the State’s wetlands, estuaries, forests, waters, streams, wildlife and wilderness, especially but not necessarily limited to, the Lake Maurepas, Ponchartrain, Catherine and Borgue estuary.... SOWL is dedicated to work for the improvement of the Louisiana environment in all its aspects, . .. (emphasis added). A resolution passed by the organization’s board in 1978 also indicated that “it is the purpose and intent of SOWL to preserve the Mississippi River and its surrounding waters.... ” Under Sierra Club, this statement in the articles would certainly be insufficient to establish standing, but it is relevant in the consideration of the standing question. During the presentation of the organization’s case, Janet Moulton Trombatore, the president, testified that she and her stepson have fished in the general area of the project. She testified that they intend to continue to fish in the area and that the project could have an effect on their fishing. Additionally, the project could harm the aesthetics of the wetlands which would harm Ms. Moulton and the members of the organization who “just ... ride through there on a pirouge.” Of course, the fact of actual damage to the wetlands, fishing and aesthetics is somewhat speculative, but that is the point of the lawsuit — to compel a completion of an environmental impact statement about the consequences of the project. This interest asserted by the members— the protection, of the wetlands environment — would clearly fall within the purpose of the Rivers and Harbors Act, therefore, the first prong is fulfilled. Second, the interests the organization seeks to protect are certainly germane to the organization’s purposes as stated in its articles and the resolution already noted. Third, the claim asserted and relief sought do not require the participation of individuals as plaintiffs. Therefore, Save Our Wetlands has standing. Finding standing under section 10 of the APA, we need not consider LP & L’s argument that the organization does not have standing, in the alternative, under section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365. III. Standard of Review Involuntary dismissals under Rule 41(b), Fed.R.Civ.Proc., must be affirmed unless the appellant shows that the district court’s findings are clearly erroneous or contrary to law. Reimer v. Smith, 663 F.2d 1316, 1321 (5th Cir.1981). IV. District Engineer’s Environmental Assessment An environmental assessment is a preliminary document in the permitting process. It is a “brief document which provides sufficient information on potential environmental effects of the proposed action ... to the district engineer, to determine if an [environmental impact statement] is required. ...” 33 C.F.R. § 230.10 (1982). Save Our Wetlands contends that the Corps violated its regulatory authority by failing to prepare and sign the environmental assessment. The regulations provide that: (4) The District Engineer shall prepare an Environmental Assessment on all applications. The Environmental Assessment shall be dated, signed, and placed in the record and shall include the expected environmental impacts of the proposal. Where the District Engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the Environmental Assessment. 33 C.F.R. § 325.2(a)(4) (1979). The organization argues that the Corps violated this section because the assessment was prepared by Dr. Kilgen, an outside consultant hired by LP & L, and because Colonel Sands, the district engineer, or his designee failed to sign the assessment. The organization notes that “shall” is interpreted to be mandatory, therefore, the district engineer is obligated to prepare the assessment. When LP & L applied for the permit, an assessment of the impact of the proposed project was required. That assessment was to consider “environmental information provided by the applicant, all advice received from Federal, State and local agencies, and comments from the public.” 33 C.F.R. § 209.410(e)(7) (1979). Before public notice of the application, the District Engineer was to make a “preliminary assessment” of environmental impacts and a “preliminary determination as to whether the quality of the human environment would be significantly affected.” 33 C.F.R. 325.4(b)(1) (1979), i.e., whether an environmental impact statement would be required under Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4332(2)(C). The “preliminary assessment [would] normally be based on experience with similar type activities in the past,” and the “preliminary determination” was to be “included in the public notice” and “reconsidered as additional information [was] developed.” 33 C.F.R. § 325.4(b)(1) (1$79). After the period for comment by interested agencies and the public: If the District Engineer’s final determination after consideration of all additional information developed (including responses to the public notice) is that the proposed work will not significantly affect the quality of the human environment, the District Engineer’s determination shall be documented, dated, and placed in the record as his Environmental Assessment. 33 C.F.R. § 325.4(b)(2) (1979) (emphasis added). Neither the District Engineer nor his des-ignee ever filed a document called an environmental assessment. Charles Decker, the Chief of the Corps’ Operations Division in New Orleans, testified to that fact. The Corps, according to Decker, reviewed the environmental assessment compiled by Dr. Kilgen at LP & L’s behest, public comments and materials in its file, and filed a finding of fact and a preliminary statement that no environmental impact statement was required. A fair reading of these regulations, particularly 33 C.F.R. § 325.4(b)(2), discloses that no document entitled environmental assessment is required. But the District Engineer is to file his final determination that the proposed project will not significantly affect the quality of the human environment. This final determination shall be documented, dated and “placed in the record as his Environmental Assessment.” 33 C.F.R. § 325.4(b)(2). This may be signed by the District Engineer’s designee. A reasonable interpretation of these two parts of the regulations accords the word “shall” in section 325.2(a)(4) its ordinary mandatory meaning. With corresponding direction it permits the District Engineer to make that “assessment” in the form of a statement that the proposed work does not significantly affect the quality of the human environment. V. No Abdication of Agency Role Our interpretation of the regulations does not result in the agency abdicating its responsibility to appraise a project’s import. As long as there is proof of actual agency review, it is not a delegation of authority to an interested party to make an environmental assessment for the Corps. The Supreme Court has interpreted the National Environmental Policy Act, 42 U.S.C. § 4332(2)(c), to create “a discrete procedural obligation on Government agencies to give written consideration of environmental issues in connection with certain major federal actions....” Aberdeen & Rockfish Railroad Co. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 2355, 45 L.Ed.2d 191 (1975). The Supreme Court has again recently instructed that agencies “take a ‘hard look’ at the environmental consequences before taking a major action.” Baltimore Gas and Electric Co. v. Natural Resources Defense Council, — U.S. —, —, 103 S.Ct. 2246, 2253, 76 L.Ed.2d 436 (1983) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). The role of the judiciary in such cases is “simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.” Id. Both of these cases dealt with “major federal actions,” something that we find not involved here, see section VI supra, however, the instruction to the judiciary in those cases is apt here. The agency acted properly in this case. The district court specifically found that the Corps conducted an independent and thorough review. The record establishes that there was an adequate review and that this finding of fact is not clearly erroneous. The agency is not required “to do it alone” in reviewing the environmental impact of projects. The intent of the controlling regulations is that “acceptable work [completed by parties outside the agency] not be redone, ...” 40 C.F.R. § 1506.5(a) (1979). Therefore, the agency was fully authorized to consider or even adopt the Kilgen Report. It must, however, independently verify the report. The regulations promulgated by the Council on Environmental Quality specifically state this: Environmental assessments. If an agency permits an applicant to prepare an environmental assessment, the agency, besides fulfilling the requirements of paragraph (a) of this section, shall make its own evaluation of the environmental issues and take responsibility for the scope and content of the environmental assessment. 40 C.F.R. § 1506.5(b) (1979). The Corps’ regulations now say that if an outside consultant or a permit applicant provides an assessment, the district engineer may use it, but is responsible for the “independent verification and use of the data, evaluation of the environmental issues, and for the scope and content of the environmental assessment.” 33 C.F.R. § 230.7(e), appendix B ¶ 18(b) (1982). In reviewing the role of outside consultants in the preparation of environmental impact statements, this court has specifically ruled that an agency may not reflexively rubber stamp a statement prepared by others. Sierra Club v. Lynn, 502 F.2d 43, 58-59 (5th Cir.1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484; 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 701 (1975). In Sierra Club v. Sigler, 695 F.2d 957 (1983), this court questioned the objectivity of an environmental impact statement because the record failed to show that the Corps independently evaluated the relevant information. The environmental assessment and the* impact statement was prepared by an outside consulting firm in Sierra Club v. Sigler. This extra agency preparation directed the court to a review of the record which would ensure that the Corps “in good faith objectively [took] a hard look at the environmental consequences of the project.” Id. at 962-63 n. 3 (quoting Isle of Hope Historical Association, Inc. v. United States Army Corps of Engineers, 646 F.2d 215, 220 (5th Cir.1981) (per curiam)). It is clearly stated in the regulations and implicit in the holdings of Lynn and Sigler that outside consultants may be involved in or even prepare environmental assessments. The key inquiry then is the extent of the Corps’ review of Kilgen’s assessment. If the Corps independently and carefully reviewed it and verified its data, then the Corps properly performed its regulatory function. Decker testified during the organization’s presentation of its case that “we relied on [the Kilgen Report] heavily; it was prepared by a reputable scientist; it was prepared according to the instructions; it contained the information we told them to have in it. We reviewed it, we supplemented it as necessary so we relied on it, yes.” Decker later noted that the Corps presumes that assessments completed by applicants may be somewhat biased. “I don’t think this is an important factor, since we do not accept documents as being docile. We review it. If we disagree with all or part of it, we have it done over or supplemented as necessary.” John C. Weber, a zoologist and former Chief of the Regulatory Assessment Section of the Regulatory Functions branch of the Corps’ New Orleans’ office, testified that he reviewed the permit application. Weber testified that he reviewed the application for approximately three weeks after receiving an initial assessment from Ms. Billie Tramonte. Weber said his recommendation that no environmental impact statement was necessary was based upon the Kilgen Report and other factors. He said he viewed aerial and infrared photographs of the area. He discussed the study with LP & L officials and the Corps’ environmental attorney. He applied his own knowledge of the area, wetlands in general, and southern Louisiana. He also asked a staff biologist, Michael Kskaujard, to review Kilgen’s assessment. Additionally, he relied upon the administrative file which contained letters from state agencies which expressed no concern about the project. Weber then passed the file to C.J. Nettles, the Operations Division Chief, who made the final determination that no environmental impact statement was necessary. There is evidence in the administrative record that the Corps investigated the effect of electrical transmission lines on wildlife and also received comments from some organizations about the project. The Corps studied the effects of the project on southern bald eagles and the use of EPA-approved herbicides based upon its own experience in the Salvador Game Management Area. The Corps took into consideration, in consultation with the U.S. Fish and Wildlife Service, the publication “Impact of Transmission Lines on Birds in Flight.” Decker flew over the area twice to view the corridor area. The evidence that the Corps reviewed, verified and supplemented the consultant’s report is sufficient to fulfill the Corps’ obligation under federal regulations. The cases relied upon by Save Our Wetlands for the proposition that the Corps has a non-delegable responsibility to make its own objective evaluation are inapposite. These cases, Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (2d Cir.1975); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th Cir.1975); Steubing v. Brinegar, 511 F.2d 489 (2d Cir.1975); Citi zens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908 (D.Ore.1977), deal with the failure to complete environmental impact statements in major federal actions. In Ecology Center, this court ruled that it was not improper for a federal agency to delegate an impact statement to a state agency. Finally, the organization also inappropriately relies upon Bayou St. John Improvement Association v. Sands, CA 81-1358 (E.D.La.1981). Save Our Wetlands contends that the case holds that the agency must prepare an environmental assessment and that this assessment must be a concise public document. We disagree with the district court’s reasoning in that case. Additionally, that case is factually different in that no assessment was filed, either by an applicant or by the agency. Here there is a properly reviewed, verified, supplemented and adopted assessment. VI. Environmental Impact Statement Having found proper the agency’s actions in the development of the assessment, we also find that the Corps did not err in not requiring an environmental impact statement. Save Our Wetlands argues that since the failure to file an environmental assessment was error, the decision that an impact statement was not necessary was premature. The standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and in good faith on a reviewable environmental record. If the decision is reasonable, “the determination must be upheld.” Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322, 325 (5th Cir.), cert, denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). The burden is on the plaintiff attacking the “no impact statement” decision to show that the quality of the human environment would be significantly degraded by the project. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973). These agency determinations are tested in court under a “reasonableness” standard. A reviewing court is to review the administrative records as well as other evidence to determine whether the agencies adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary. If the agencies engaged in this analysis and reasonably concluded on the basis of their findings that an impact statement was not required, their determinations will be upheld. Sierra Club v. Hassell, 636 F.2d 1095, 1097-98 (5th Cir.1981). Using the administrative record, the trial testimony, affidavits and depositions in this case as Save Our Ten Acres did, we find that the plaintiff has not carried this burden and that the agency has acted reasonably. Such a finding is implicit in our holding above that the agency acted properly and responsibly, objectively and in good faith, in determining that the permit application did not raise environmental consequences which required an in-house environmental assessment. The organization’s expert witness, Dr. Paul Wagner, testified that the Corps considered all of the concerns he raised about the project. He testified that he felt that the Corps did not give some of the concerns sufficient consideration. The testimony shows that the agency reviewed the questions raised and found that they did not significantly degrade the environment. Save Our Wetlands failed to carry its burden. VII. Consideration of Alternate Routes Save Our Wetlands argues next that the Corps failed to give full and fair consideration to three alternate routes for the power lines. Alternate route No. 1 would follow an existing non-wetland LP & L right-of-way between Taft and Westwego. Alternate route No. 2 would follow an existing highway right-of-way between Taft and U.S. Highway 90 along Louisiana Highway 3127. At Highway 90, alternate route No. 2 would pick up the proposed right-of-way. Alternate route No. 3 follows the proposed right-of-way up to mile point 11.2, at which point it picks up an existing canal right-of-way, follows it for seven miles, and then rejoins the proposed corridor at mile point 19.0. The organization concentrates its attack on the Corps’ failure to select alternate route one. We are not here to decide if the alternative or the actual route is better suited. We need only decide if the Corps has complied with its duty under the law. The applicable regulation requires that: The applicant must provide sufficient information on the need to locate the proposed activity in the wetland and must provide data on the basis of which the availability of feasible alternative sites can be evaluated. 33 C.F.R. § 320.4(b)(4) (1979). The findings of fact issued by Colonel Sands state that “[o]ther routes are possible, but the applicant has demonstrated that the one proposed has the greatest overall feasibility.” It seems evident that the determination of whether a need exists to locate the power lines in the wetlands is intertwined with the feasibility of other routes. LP & L contends that more electric power is needed for the New Orleans metropolitan area. Additional power is available at Taft through the Waterford-Gypsy generating complex and the existing southern terminus of LP & L’s 500 kilovolt transmission system. To get the power to New Orleans requires the construction of a transmission line through a portion of Louisiana which has a large area of wetlands. If the alternate routes are not feasible, then LP & L properly chose to locate some of the transmission line corridor in wetlands. Save Our Wetlands contends that before the permit can be issued, the District Engineer must decide: 1. Whether the benefits of the proposed wetland alteration outweigh the damage done to the wetland resource; 2. Whether the proposed alteration is necessary to realize those benefits; 3. Whether, on the basis of information supplied by the applicant, it can be shown that the proposed activity is primarily dependent upon being in, or in close proximity to, the aquatic environment; and 4. Whether, on the basis of data supplied by the applicant, it can be shown that no feasible alternative sites for the project are available. 33 C.F.R. § 320.4(b)(4) (1979). While the first two questions are not specifically answered by the District Engineer, the answer is implicit in his decision to grant the permit. To grant the permit is to decide that the benefits of the proposed project outweigh the damage. Additionally, the third requirement is subsumed in the fourth if no alternative routes are feasible and the area to be traversed is dominated by wetlands. Therefore, our review is limited to whether (1) LP & L provided data on the basis of which the availability of feasible alternative sites could be evaluated, and, (2) whether the District Engineer considered feasible alternative sites. The district court found that the administrative record contained the information and analysis necessary. The record discloses that LP & L provided the Corps with sufficient information. The District Court found as fact that the Kilgen Report contained feasibility data and comparisons of alternate routes. This comports with our review of the materials and thus answers the first question in the affirmative. Our review also shows us that the Corps considered the feasibility of the three alternate routes. The District Engineer rejected alternate route one because it went through a high-use residential and commercial area. The Corps found that the acquisition of additional rights-of-way would dislocate a substantial number of residents and commercial establishments. The Corps also determined that the stringing of additional power lines along the established route would be an unsound engineering practice because of the increased danger of power outage due to hurricanes and tornadoes moving through the area. Alternate two was dismissed as “unaesthetic and environmentally unacceptable,” because the lines would be run along a new highway. The third possible route was rejected because it would run closer to the feeding area of thousands of lesser scaups or ducks and would ruin the aesthetic value of the levees lining the canal. The record shows, in addition, that the Corps conferred with Louisiana state agencies about the different possible routes. The proposed route proved to be most acceptable to the Louisiana Wildlife and Fisheries Commission. The Corps conferred with that agency and with the U.S. Fish and Wildlife Service about the effect of the route on a nearby bald eagle’s nest. The agency conferred with the officials of the Salvador Game Management Area, the National Marine Fisheries Service and the Louisiana Stream Control Commission. There is no blind acceptance here of a route simply because it was the primary one proposed by LP & L. There is no doubt that LP & L has acquired the right-of-way along the proposed route, but we find no evidence that it was presented to' the Corps as a fait accompli. It is a factor that may be and was considered by the Corps in evaluating the alternate routes. Finally, Save Our Wetlands argues that the Corps could not properly assess the alternative without viewing the costs of the alternate routes. The Corps’ representatives testified at trial that requests for cost data are made on a case-by-case basis. Additionally, they determined that cost estimates were not necessary here because they felt they had sufficient non-cost data to evaluate the merits of the alternate routes. It apparently seemed clear to Corps’ officials that alternate route one, in particular, would be more costly because of the need to acquire a right-of-way through a developed area. We are confident that the Corps fully considered the suggested alternate routes before approving the proposed transmission line corridor. VIII. Failure to Require a § 404 Permit Save Our Wetlands argues that the Corps erred in not requiring LP & L to acquire a § 404 permit. The organization contends that the permit is required because the work to clear the corridor results in the discharge of dredged and fill material into the waters of the United States. It argues that the decision of Judge Scott in Avoyelles Sportsman’s League v. Alexander, 473 F.Supp. 525 (E.D.La.1979), should control this issue. The statute requires the issuance of permits where there is a “discharge of dredged or fill materials into the navigable waters.” 33 U.S.C. § 1344. There is no question that the wetlands constitute navigable waters, 33 C.F.R. § 323.2(2) (1979), therefore, the question is whether the work involved in this project is “dredge and fill” work. The Clean Water Act does not define “dredged or fill material,” but leaves the term for agency definition. The Corps defines “dredged material” as “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(k) (1979). The Corps defines “fill material” as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water-body. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under [33 U.S.C. § 1342]. 33 C.F.R. § 323.2(m) (1979). The “materials” here do not qualify as dredged or fill materials under these definitions. The definition of fill material highlights the fundamental difference that exists between this case and the Avoyelles decision. The work in Avoyelles was intended to permanently change the area from wetlands into a non-wetland agricultural tract for row crop cultivation. All timber and vegetation were to be cut and cleared. The area was to be drained and leveled. Trees and other vegetation were to be burned and the ashes disced into the land. Nonburnable materials were buried on the plot. It was within this factual setting that the Avoyelles court found that a permit was required. One of the key elements behind Judge Scott’s decision was the fact that the work would destroy the wetlands. Here, the work involved the felling of trees with chain saws. The trees and cleared vegetation were to be windrowed and allowed to naturally deteriorate. The wooded swampland to be cleared here will be changed to swampland vegetation with shrubs, grasses and other low growth. The wetlands involved here will not be converted as in Avoyelles. The trees and vegetation to be windrowed will not be used to “replac[e] an aquatic area with dry land or .. . chang[e] the bottom elevation of a waterbody.” Additionally, no access roads will be built to the corridor. All work will be done from marsh buggies and helicopters. ' We find, therefore, that the Corps’ decision not to require a 404 permit was neither arbitrary nor capricious. Our decision on the merits of the section 404. claim removes the necessity of deciding whether Save Our Wetlands was proceeding under section 505 of the Clean Water Act, 33 U.S.C. § 1365. If the organization was proceeding under this section, then it would be able to recover attorneys’ fees and costs for the litigation of the section 404 permit claim. Since Save Our Wetlands did not prevail on this claim, it is unnecessary to decide its eligibility for fees under section 505. The district court’s decision is AFFIRMED. . Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, provides: Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not' be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . Section 404 of the Clean Water Act, 33 U.S.C. § 1344, provides in relevant part: The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection. . Section 10 permits are required for “all structures or work in or affecting navigable waters of the United States....” 33 C.F.R. § 322.3 (1979). Power transmission lines are included in the definition of structures. 33 C.F.R. § 322.2(b) (1979). Navigable waters are those waters “subject to the ebb and flow of the tide shoreward to the mean high water mark ..., and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.” 33 C.F.R. § 322.2(a) (1979). . The district court summarized the assessment’s findings as follows: (a) No chemicals will be used to clear the right-of-way for construction. Approved herbicides (meaning those that are registered with the EPA, the use and application of which are approved by the appropriate State agency) will be used for the maintenance of the wooded portion of the right-of-way. There will be no herbicide run-off in the adjacent wetlands. (b) The State of Louisiana Stream Control Commission (now the Water Quality Division of the Office of Environmental Affairs of the Department of Natural Resources) certified on November 9, 1978, that it is reasonable to expect that water quality standards of Louisiana provided for under § 303 of P.L. 92-500 (Federal Water Pollution Control Act) will not be violated by this proposed project. (c) No adverse impact on ducks is expected. When passing over the proposed route, the ducks fly at an altitude of several hundred feet and would avoid the transmission conductors, the electrical field, and the large support structures will also warn the ducks and other birds to avoid collision with the transmission lines. (d) The Louisiana Wildlife and Fisheries Commission, which has management of the Salvador Game Management Area, stated it had no objection to the proposed route of the transmission lines and that it would not be detrimental to the success of eagle nests in the area, provided that construction activity be restricted to the period of time when the birds are not at Salvador. (e) The Louisiana Wildlife and Fisheries Commission owns and controls a large area of the land through which the transmission lines must traverse in order to get from the west to the east in St. Charles and Jefferson Parishes. (f) The proposed right-of-way was selected by the applicant after consultation with the Louisiana Wildlife and Fisheries Commission as to where the Commission would approve the location and grant the right-of-way across the property. (g) The proposed project will have no appreciable impact on water quality, surface run-off, or drainage patterns. The Board of Commissioners of the Lafourche Basin Levee District certified under its letter of November 9, 1978, that it had no objection to the proposed project. The Office of Public Works, State of Louisiana, Department of Transportation and Development, in its letter of November 8, 1978, stated that it had no objection to the proposed project. (h) The transmission lines and support structures are not high enough to interfere with the criteria of the Federal Aviation Administration. (i) The electrical field beneath the transmission lines will have no discernible impact on humans or human activities. (j) The clearing of the right-of-way will eliminate the normal habitat in the immediate area, but will improve the habitat diversity of the area. The log piles will provide shelter for many species, such as insects, mice and rats, snakes, rabbits, raccoons, and opossums. These species will experience a growth in population due to an increase of the favorable habitat. In turn, other animals dependent on these species for food will also become more abundant. The rabbit population will probably experience a rapid growth, thereby offering more recreational opportunities in the form of hunting. (k) The 500 KV transmission line, which will be constructed along the proposed route, will cost $17.3 million. (record citations omitted). . The public notice included the applicant’s name; the location, character, and description of project as proposed; that a formal consultation with the United States Fishery and Wildlife Service would be initiated due to the known presence of bald eagles within 2,000 feet of the proposed transmission line alignment; that the land clearing for those portions of wetland would not violate the Clean Water Act of 1977, and that the public was invited to submit comments until June 7, 1979. In addition, the notice stated that a water quality certification would be required; that no properties listed on the National Register of Historic Places were near the proposed work, and that the application would be reviewed pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. . Section 1506.5(a) provides: Information. If an agency requires an applicant to submit environmental information for possible use by the agency in preparing environmental impact statement, then the agency should assist the applicant by outlining the types of information required. The agency shall independently evaluate the information submitted and shall be responsible for its accuracy. If the agency chooses to use the information submitted by the applicant in the environmental impact statement, either directly or by reference, then the names of the persons responsible for the independent evaluation shall be included in the list of preparers (§ 1502.17). It is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency. . These regulations were promulgated in 1978, 43 Fed.Reg. 55978 (1978), and were generally effective on July 30, 1979. 40 C.F.R. § 1506.12 (1979). They were to apply to “the fullest extent practicable to ongoing activities and environmental documents begun before the effective date,” and “nothing” would prevent the agency “from proceeding under these regulations at an earlier time.” 40 C.F.R. § 1506.-12(a) (1979). LP & L’s permit application was filed on March 19, 1979 and granted on September 24, 1979. . Save Our Wetlands makes much of the fact that the dates on the documents at issue here seem to indicate that Nettles determined that no impact statement was necessary before Weber sent him the file and the application-related documents. Save Our Wetlands charges that this is proof of the arbitrary nature of the agency review. Decker and Weber testified that they could not explain this discrepancy in dates, but both swore that the dates had to be wrong. Weber suggested that the document signed by Nettles may have been erroneously back-dated, but both testified that Nettles signed the document after Weber’s review. . Save Our Wetlands does not contend that this action is a major federal action thus requiring an environmental impact statement under the National Environmental Policy Act. 42 U.S.C. § 4332(2)(c). We note only in passing that the record in this case does not show that this permitting process is sufficient to “federalize” this action thus requiring an environmental impact statement. See generally Bradley v. U.S. Dept. of Housing & Urban Dev., 658 F.2d 290 (5th Cir.1981); Citizens for a Better St. Clair County v. James, 648 F.2d 246 (5th Cir.1981); Sierra Club v. Hassell, 636 F.2d 1095 (5th Cir. 1981). A private act does not become a federal act, albeit a “major” one, merely because of some incidental federal involvement. Save The Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322, 326-27 (5th Cir.), cert, denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). . The Corps did, nonetheless, make some findings as to the benefits-damages analysis. The Corps specifically noted that it considered the impacts of the total project and not just the crossings for the small tidal streams. It found that despite energy conservation, additional power supplies are needed to insure proper service to the areas served by New Orleans Public Service and LP & L. It found that there are no reasonable alternatives available to the applicant that will achieve the purpose for which the work is being constructed. It determined that while other routes are possible the proposed route has the greatest overall feasibility. It found that the proposed work is in accordance with the overall desires of the public as reflected in comments of State and local agencies and the general public. It found that there are no truly significant adverse environmental effects related to the work. Finally, it found that, on balance, the total public interest should best be served by the issuance of a Department of the Army permit to the applicant.

Sierra Club v. United States Army Corps of Engineers

KEARSE, Circuit Judge: These are appeals by state and federal defendants and a cross-appeal by plaintiffs Sierra Club, et al. (“Sierra Club”), from judgments of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, upholding in part plaintiffs’ challenge to the federal defendants’ approval of Hudson River landfill in connection with a proposed New York City highway known as “Westway.” The court ruled that defendants United States Army Corps of Engineers (the “Corps”) and Federal Highway Administration (“FHWA”) had violated the National Environmental Policy Act, 42 U.S.C. § 4332 (1976) (“NEPA”), and that the Corps had violated the Clean Water Act, 33 U.S.C. § 1344 (Supp. V 1981), and § 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403 (1976) (“Rivers and Harbors Act”), by making inadequate investigations and disclosures concerning the impact of the Westway landfill project on fisheries in the Hudson River. The court enjoined further construction of the project pending reconsideration by FHWA and the Corps in compliance with the statutes, ordered special record-keeping in connection with the reconsideration, and appointed a special master to supervise compliance. FHWA, the Corps, and defendant William C. Hennessy as Commissioner of the New York State Department of Transportation (“NYSDOT”) challenge various aspects of these rulings. In its cross-appeal Sierra Club seeks reversal of so much of the district court’s decision as found the Corps, in other respects, in compliance with NEPA, the Clean Water Act, and § 9 of the Rivers and Harbors Act. For the reasons below, we affirm the district court’s judgments except insofar as they (1) upheld plaintiffs’ claim that the Corps had violated § 10 of the Rivers and Harbors Act, (2) required FHWA and the Corps to include in a supplemental environmental impact statement current information on nonfisheries issues, (3) prohibited FHWA and the Corps from acting as joint lead agencies in preparing a supplemental environmental impact statement, and (4) appointed a special master. I. FACTS The background Of the present litigation is more fully set forth in two opinions of Judge Griesa, reported in Action for Rational Transit v. West Side Highway Project, 536 F.Supp. 1225 (S.D.N.Y.1982), see note 14 infra, and Sierra Club v. United States Army Corps of Engineers, 541 F.Supp. 1367 (S.D.N.Y.1982). Familiarity with both opinions is assumed. Except to the extent indicated, the following statement of facts reflects findings of the district court or evidence of record as to which we see no substantial dispute. A. Initiation of the Westway Project, the Draft EIS, and the Criticisms “Westway,” the currently proposed Manhattan highway intended to replace the southernmost portion of the deteriorating West Side Highway, had its origins in a 1971 agreement reached among New York City, New York State, and FHWA in connection with major revisions of the interstate highway system in the New York metropolitan region. The plan began to take shape in 1972, when the State and the City jointly established an administrative entity called the “West Side Highway Project” (the “Project”) under the jurisdiction of NYSDOT to plan the replacement for the West Side Highway. The Project was comprised almost entirely of outside consulting firms, the chief of which was Systems Design Concept, Inc. (“Sydec”), whose principal, Lowell K. Bridwell, was Executive Director of the Project from 1972 until 1981. Beginning in 1972, the Project spent many months developing policy statements and goals to use in planning the location and design of the replacement highway. At some point it became apparent that construction of the replacement highway would require preparation of an environmental impact statement (“EIS”) pursuant to § 102(2)(C) of NEPA, to describe the environmental consequences of the construction. The staff and consulting firms associated with the Project prepared, within their respective areas of expertise, draft sections of such a statement. Sydec assembled all of the sections in a single draft, and submitted it to NYSDOT and FHWA for review. On April 25,1974, a formal draft environmental impact statement (“DEIS”) was issued, signed by NYSDOT and FHWA, presenting five alternative plans for the replacement highway and analyzing the alternatives in terms of community needs and environmental concerns. The DEIS discussion of the replacement highway’s expected impact on fisheries in the Hudson River was based on a 1973 biological survey conducted by one of the Project’s consulting firms. It concluded that the interpier area was populated only by relatively few species of fish (tomcods) and invertebrates. In accordance with 40 C.F.R. § 1500.7(a) (1974), the DEIS was circulated for public comment. Most of the responses to the DEIS related to an alternative referred to as the “outboard” alternative, which included a proposal for the highway to be built on landfill between bulkhead and pierhead lines (the “interpier area”) on the river. Three federal agencies submitted comments to NYS-DOT. The National Marine Fisheries Service (“Fisheries Service”) informed NYS-DOT that it did “not believe that the statement provide[d] sufficient information to permit a valid assessment of probable environmental impacts,” particularly with respect to marine resources. The United States Federal Wildlife Service (“Wildlife Service”) and Environmental Protection Agency (“EPA”) also submitted comments which focused tangentially on marine impacts. Following issuance of the DEIS and the Project’s receipt of comments, city agencies, with Project support, reviewed the outboard alternative and recommended the construction of a modified version of that alternative. This recommendation was approved by the Governor and the Mayor on March 7, 1975, and Westway was the name given to the approved alternative. B. The Final EIS After publication of the DEIS, the Project reevaluated the alternatives and completed further engineering and environmental studies. The environmental studies included a Technical Report on Water Quality (“Water Report”) based on the same 1973 fisheries data that had been used to formulate the DEIS’s discussion of the project’s impact on fisheries. The Water Report stated that relatively few species of fish could tolerate the existing conditions of the interpier area and that, although the area might be used to a limited extent in migration, modern-day pollution made the area a “biological wasteland.” After receiving the comments on the DEIS, the Project staff reevaluated the outboard alternative and prepared a new document, as required by 40 C.F.R. § 1500.-7(a) (1974); see also NEPA § 102(2)(C), incorporating the comments and its responses to them, to become part of the final environmental impact statement. The final environmental impact statement (“FEIS” or “January 1977 EIS”) recommending Westway, signed by NYSDOT and FHWA, was issued on January 4, 1977. The FEIS analyzed the Westway alternative as it related to, inter alia, the quality of urban development, traffic patterns, air quality, noise, water quality, and the impact of the proposed landfill on the aquatic habitat of the interpier region. Noting that the interpier area was “biologically impoverished,” the FEIS stated that Westway would create an estuarine habitat in the interpier area that will closely resemble that of the main channel. The inter pier basins are presently almost devoid of macro organisms, and therefore the landfilling of the basins will cause a minimal loss of estuarine productivity for species other than micro organisms. Since the inshore area is biologically impoverished, the placement of landfill will have little impact on the overall productivity of the Hudson estuary. As noted earlier in this discussion, future dissolved oxygen levels throughout the Lower Hudson are expected to improve substantially with the complete implementation of wastewater treatment programs. This improvement will provide an attractive habitat for more diverse and numerous estuarine species in future years. Fluctuations in salinity along the Modified Outboard edge would be much less severe than the changes now occurring in the inter pier basins. The layering of fresh, brackish, and salt water which characterizes the main channel will also apply to the Modified Outboard shoreline. The rise and fall of these layers caused by tidal action will be gradual enough to permit shore migrations along the edge for species requiring a stable habitat. The preferable edge treatment for the Modified Outboard shore would be riprap because it can provide a greater variety of dwelling areas and can attract more species, both those resident along the edge and fishes which feed on these creatures. The Water Report, which had similarly described the interpier area as a “biological wasteland,” was appended to the FEIS. Like the DEIS, the FEIS had been drafted by Sydec, under the supervision of Brid-well, and had been reviewed by FHWA. FHWA administrators testified, however, that either they had been unaware of the Fisheries Service’s comment that the fisheries information in the DEIS was inadequate, or they had considered the matter unimportant in relation to other Westway concerns. On January 4, 1977, the day the FEIS was issued, FHWA approved federal funding for Westway. FHWA design and location approvals were issued soon thereafter. C. The Application for a Landfill Permit, the Federal Agencies’ Opposition, and the New Fisheries Data Because Westway would require landfill in the Hudson River, approval was required from the Army Corps of Engineers pursuant to § 404 of the Clean Water Act, and § 10 of the Rivers and Harbors Act. On April 7,1977, NYSDOT applied to the Corps for a permit. On April 22, 1977, the Corps issued a notice of public hearing on the application, thereby beginning the “public interest review” process required under the Clean' Water Act prior to a Corps decision on whether to issue the permit. See 33 C.F.R. § 320.4(a) (1981). The Corps notice also announced that FHWA was to be considered the “lead” federal agency in the project, see 40 C.F.R. § 1500.7(b) (1974), and that the FEIS that had already been published had been reviewed by the Corps and was adequate for Corps purposes. The public interest review procedures require the Corps decisionmakers to consult with, and give great weight to the views of> Fisheries Service and Wildlife Service, see 33 C.F.R. § 320.4(c) (1981), and to coordinate with EPA, see 33 C.F.R. § 323.5 (1981). Within the Corps, the initial decision would be made by the district engineer; objections by other federal agencies could lead to successive reviews by the division engineer, the chief of engineers, and the Assistant Secretary of the Army. See 33 C.F.R. § 325.8 (1981). Following the Corps’s April 22, 1977 notice, Fisheries Service, Wildlife Service, and EPA submitted to the Corps district engineer their objections to the issuance of the permit. Fisheries Service opposed the permit on the ground that the landfill would have a negative effect on the marine habitat. Wildlife Service opposed the permit on the ground that the marine habitat in the landfill area would become very active in the near future as a result of pollution control laws and that construction of Westway would therefore permanently preempt a potentially productive piscine population. EPA took the position that there were insufficient data available concerning the impact of the project on marine life and that, under applicable law, the permit therefore could not be issued. The district engineer did not respond to the three agencies’ objections, but instead forwarded them to the Project. The Project’s response, which took the form of a several-hundred-page document, dated May 16,1978, was submitted to the district engineer after review by FHWA; it (1) concluded that the predictions of a negative impact on the marine habitat were not well taken, because the Water Report demonstrated that the interpier area “functions neither as a nursery and migration area nor as a source of primary productivity to any extent”; (2) essentially repeated the conclusion of the FEIS that, even with the proposed landfill, the interpier area would be increasingly hospitable to numerous estuarine species; and (3) took the position that EPA’s stance was “fundamentally biased and prejudged,” and that its statement contained “sufficient inaccuracies, misinterpretations and misrepresentations” to render EPA’s opinion “meaningless.” Fisheries Service, Wildlife Service, and EPA found these responses unsatisfactory. Wildlife Service and EPA stated that the Project had provided no new information to change their views, and Fisheries Service suggested that the Project “may not fully appreciate estuarine processes.” The agencies conveyed these views to the district engineer during the summer of 1978. The district engineer also received letters of objection to the permit from New York City officials, private individuals, and various organizations. The district engineer forwarded these letters to FHWA, which took the position that the January 1977 EIS was completely adequate. In December 1978, however, EPA persuaded NYSDOT to make a further biological study of the interpier region. The Project commissioned the engineering firm of Lawler, Matulsky & Skelly (“Lawler”) for that purpose. The planned scope of the Lawler study was developed in consultation with Fisheries Service, Wildlife Service, and EPA. The Corps took no part in these discussions. In May 1979, shortly after the Lawler study had begun and six months before its scheduled completion, the Corps district engineer preliminarily approved the landfill permit. A formal document embodying the approval was issued in September 1979 on the basis of reports prepared in part by Linda Monte, a Corps biologist then at the district level, who later moved to the division level where she was also assigned to the Westway matter. Monte’s report discussed the effects of the proposal on aquatic environments and concluded that the Lawler data would not be necessary for a decision on the Westway permit and that no supplemental EIS (“SEIS”) was required. Because of the continuing objections of the Fisheries Service, Wildlife Service, and EPA to issuance of the permit, however, the district engineer’s decision was submitted for review by the division engineer. The review in the division engineer’s office resulted in a conclusion that the FEIS contained little useful information on the fisheries question, and the division engineer decided to await the results of the Lawler study before making his decision on the permit. By the end of 1979, the Lawler sampling had revealed significant numbers of fish in the interpier area, and the study was extended to cover the thirteen-month period from April 1979 through April 1980. Lawler regularly forwarded its sampling data to the Project. The Project, however, relayed only limited information about the results to FHWA and to Monte. The Corps division engineer requested the Lawler data in late 1979 and early 1980. The Project refused to provide them, however, on the ground that the Corps might be forced to reveal the data under the Freedom of Information Act, 5 U.S.C. § 552(a) (1976 & Supp. V 1981). Finally, in June 1980, the Project furnished copies of an early Lawler “progress report” to the division engineer’s office and EPA. This progress report included data only through November 1979, although several months’ later data had been collected and showed, for the most part, that the months of greatest abundance of fish in the interpier area had been October 1979 through April 1980. The Lawler progress report provoked the Corps in mid-August 1980 to request a meeting with the Project and FHWA to discuss “mitigation” measures to be taken, see 33 C.F.R. § 320.4(c), i.e., measures to minimize the loss of fisheries habitat or to compensate for its loss. By that time, the Project had received a draft copy of the final Lawler report, which it had forwarded to NYSDOT and FHWA, but not to the Corps. The mitigation meeting was held on August 13,1980, and it was agreed that the Project would develop mitigation concepts and that FHWA would consider funding the cost of mitigation. In late August 1980, EPA informed the Corps that it felt the Lawler data it had been given showed the landfill would result in a loss of habitat for certain species of fish, including white flounder, white perch, and striped bass. Attorneys for Sierra Club, who had obtained interim Lawler data, contended to the Corps that the data required a SEIS. The Corps sought the view of the FHWA as to whether a SEIS was required; FHWA in turn referred the matter to the Project and continued to express interest in the subject of mitigation. At a mitigation meeting on September 8, 1980, the first complete volume of the Lawler study was finally furnished to the Corps and to Fisheries Service, Wildlife Service, and EPA. The last three agencies persisted in their objections to the Corps’s issuance of the Westway permit. Nevertheless, on November 26, 1980, the division engineer informed the agencies that he had concluded that the landfill would not be detrimental to aquatic life in the interpier area, and that he would recommend issuance of the permit. The division engineer acquiesced in FHWA’s advice that no SEIS was necessary. He recommended to FHWA, however, that the Lawler report be filed with EPA as “supplemental information” to the FEIS and circulated to concerned agencies and interested public parties who had provided comments on the DEIS and the FEIS. Apparently this was never done. In late 1980 and early 1981, Fisheries Service, Wildlife Service, and EPA again requested review of the permitting decision, this time by the Corps chief of engineers, on the grounds of adverse, insufficiently mitigated impact on fishery resources. Fisheries Service expressed concern that the information on which the permitting process had relied was biased. On February 18, 1981, however, the Corps chief of engineers approved the landfill permit, and the objecting agencies decided not to appeal the decision to the Assistant Secretary of the Army. Fisheries Service stated that it lacked a “firm conviction” that the project would result in “severe, irreversible environmental degradation.” D. Proceedings in the District Court In March 1981, plaintiffs commenced the present suit against the Corps and NYS-DOT, attacking issuance of the landfill permit on several grounds. Their principal claim was that the January 1977 EIS was inadequate because of the insufficiency of its treatments of fisheries, the relationship of Westway to the development of the West Side of Manhattan, traffic and air quality impact, problems associated with toxic chemicals and flooding, alternatives to Westway, and the possibility of a funding shortfall. Plaintiffs contended that, by relying on the inadequate FEIS, the Corps had violated NEPA, the Clean Water Act, and § 10 of the Rivers and Harbors Act. The other grounds of plaintiffs’ challenge included the contention that the landfill permit should be voided because the landfill would be a “dike” within the meaning of § 9 of the Rivers and Harbors Act and hence would require the express authorization of Congress. The district court granted summary judgment dismissing all of the claims except those concerning the FEIS’s treatment of the fisheries issue, and held a bench trial as to the latter (“First Trial”). Following the trial, in a thorough opinion dated March 31, 1982, reported at 536 F.Supp. 1225, Judge Griesa found, inter alia, that striped bass is one of America’s most highly esteemed game and food fishes, attracting millions of fishermen, both sport and commercial, each year and commanding increasingly high prices in the market; and that the Hudson River is the second most important contributor of striped bass to the Atlantic Coast fishery, providing 18-32% of all the striped bass in the New York Bight and Long Island Sound. As contrasted with the FEIS’s characterization of the Hudson interpier area as a biological wasteland, the court found that that area in winter houses a concentration of juvenile striped bass. The court found that the Corp’s treatment of the fisheries issue failed to meet the requirements of NEPA. His opinion stated in part as follows: The most significant environmental impact requiring consideration by the Corps of Engineers was the impact of the proposed landfill on fishery resources. The Corps was under a duty to make reasonable effort to ascertain the facts, and then to set forth those facts in an environmental impact statement. Under the mandate of NEPA, the Corps was required to make a full disclosure of the information about fishery resources, and to give an opportunity for comment by interested parties. As part of this process, the Corps was required to make public the views of the federal agencies with jurisdiction and expertise on the subject of fisheries. The total failure of the Corps to comply with these obligations has been demonstrated beyond any question. At no point did the Corps make any effort of its own to ascertain the facts about marine life in the interpier area. It was content to rely upon the January 1977 EIS, despite warnings from EPA, [Fisheries Service] and [Wildlife Service] that the information in this statement about aquatic impacts was probably unreliable. After the [Lawler] report was obtained, at the instance of the other agencies, the invalidity of the conclusions in the January 1977 EIS regarding aquatic impact was proved. The interpier area was shown to be a highly significant and productive habitat for fish, including striped bass. The proposed landfill would have the impact of destroying this habitat. The Corps was obligated under NEPA to publicly disclose this information and this impact in an environmental impact statement. It did not do so. Instead, it acquiesced in the urgings of [NYSDOT] and the FHWA to withhold the information. Aside from public disclosure, the Corps had the obligation to develop a full and adequate environmental impact statement in order to ensure that its own deliberations took into account the relevant facts and the environmental impacts. The record in this case demonstrates the salutory [sic] nature of this legal requirement, and the total non-compliance by the Corps. The District Engineer’s recommendation was made without having any reliable fishery information whatever. The Division Engineer acted following receipt of the [Lawler] report, but obtained no appropriate technical assistance from the Corps’ own biologists or from the other federal agencies with expertise. The Chief of Engineers quickly affirmed what was done at the lower levels. This wholly inadequate procedure would have been avoided if the District Engineer had promptly instituted steps to prepare and promulgate an environmental impact statement as required by NEPA. Because of the failure of the Corps to comply with NEPA, its issuance of the Westway landfill permit was invalid and must be set aside. Id. at 1252-54. The court found that the Corps’s failures also violated the Clean Water Act and § 10 of the Rivers and Harbors Act. Id. at 1254. On April 14, 1982, the court entered a judgment in favor of the plaintiffs which granted the following principal relief: (1) voided the Westway landfill permit granted by the Corps; (2) ordered that, in the event NYSDOT applied for a new permit, the Corps was to undertake proceedings in accordance with NEPA, the Clean Water Act, and § 10 of the Rivers and Harbors Act, including (a) preparation of an adequate supplemental EIS with respect to the fisheries issues, (b) inclusion in the SEIS of current information on subjects other than fishery resources, (c) an independent evaluation of all fisheries data collected during the Lawler study, (d) after consultation with Fisheries Service, Wildlife Service, and EPA, the undertaking or contracting for such additional fisheries studies as the Corps concludes are necessary for its independent evaluation; and (3) enjoined any further Westway activities affecting the bed or waters of the Hudson River pending the Corps’s reconsideration. The court ordered the Corps to keep records of all activities in relation to any new application and its consideration thereof. (Judgment dated April 14, 1982 (“April Judgment”).) The court interpreted the April Judgment as requiring that the SEIS be prepared by the Corps itself, and not jointly by the Corps and FHWA. On April 13, 1982, at the suggestion of the district court, plaintiffs had moved to amend their complaint to add the United States Department of Transportation and FHWA, and officials of those agencies, as defendants to the present action. Plaintiffs contended (1) that the FHWA design, location, and funding approvals of Westway were invalid because the January 1977 EIS was misleading and incomplete, in violation of NEPA, and (2) that in any event, developments following the issuance of the FEIS, including the Lawler study, the adverse comments of Fisheries Service, Wildlife Service, and EPA, new proposals for alternatives to Westway, urban renewal on the West Side, increases in the cost of Westway, and increases in the estimated levels of traffic and air pollution resulting from the construction and operation of Westway, mandated preparation of a supplemental EIS on all of these issues. On April 20,1982, the district court granted the motion to add the new federal defendants, stating that it would be anomalous to enjoin the Corps from proceeding on the basis of the FEIS without also enjoining the agency that had signed the FEIS and was to fund the project. Following a trial with respect to the new federal defendants (“Second Trial”), the district court issued an opinion on June 30, 1982, reported at 541 F.Supp. 1367, ruling in favor of plaintiffs only on their claim that the FEIS was inadequate with respect to fisheries impacts. The court held that on this issue FHWA had failed to comply with NEPA, finding that the information in the January 1977 EIS regarding fisheries was untrue. The authors of the EIS knew, or should have known, that they had no basis for the presentation made on this subject. Subsequently, when the data from the fishery study became available, this [sic] data demonstrated positively the falsity of the EIS on the subject of fisheries. The FHWA was under a duty to file a supplemental environmental impact statement setting forth the facts. The FHWA wilfully refused to take the necessary corrective action. The evidence at the second hearing not only demonstrated the failure of the FHWA to fulfill its own obligations under NEPA, but also reinforced the evidence presented at the first hearing to the effect that the FHWA and [NYS-DOT] colluded in a successful effort to persuade the Corps of Engineers to refrain from issuing an environmental impact statement in connection with the landfill application. Id. at 1370. In particular as to the FEIS’s fisheries information the court found that FHWA and [NYSDOT] lacked a sufficient basis for making the assertions on the subject of fishery impact which are contained in the 1977 EIS.... [T]hey realized that the sampling which had been carried out in preparation for the January 1977 EIS was inadequate [and] that the reason the earlier study revealed virtually no fish in the interpier area was that the study was made at a time of year which was not representative and the sampling techniques were faulty. The court concludes that those responsible for preparing the fishery material in the January 1977 EIS knew, or should have known, of the lack of factual basis for what was stated. This does not mean that, as of 1977, there was any substantial body of information positively indicating that the in-terpier area was a fish habitat. The point is that the January 1977 EIS categorically asserted the opposite. There was no basis for such a presentation. Id. at 1371-72. Finally, the court concluded that [s]ince the January 1977 EIS did not make a true or adequate presentation on the subject of fisheries, the FHWA had the obligation to issue a correct supplemental EIS, something which it has never done. Even if one could say that the January 1977 EIS was justified on the basis of the information then existing, nevertheless the [Lawler] fisheries data constituted information of such importance on the subject of environmental impact that the FHWA was under a duty to issue a supplemental EIS. Such a duty of supplementation is implicit in NEPA.... It can hardly be doubted that the [Lawler] fisheries data constituted significant information relevant to environmental concerns and bearing on the impact of the proposed Westway project. The FHWA, in collaboration with [NYSDOT], acted in willful derogation of the requirements of law in failing to issue a corrective supplemental environmental impact statement. The FHWA fully recognized the serious nature of the environmental impact which had been revealed by the new fisheries data, but refrained from making the required public disclosure. Id. at 1382-83. On July 23, 1982, the court entered a judgment (“July Judgment”) enjoining FHWA from granting any approvals for Westway prior to preparation, either by the Corps with FHWA’s substantive approval or by FHWA itself, of a supplemental EIS as required by the April Judgment — i.e., one dealing adequately with fisheries issues and containing an undated treatment of nonfisheries issues. The court also ordered FHWA, as it had ordered the Corps, to keep records of all activities in connection with the reconsideration of Westway. In addition, the court appointed a special master to oversee compliance with its judgments. As set forth in the margin, the special master was given the authority to, inter alia, require FHWA and the Corps to submit detailed plans for their preparation of a supplemental EIS, and was given the power to review those plans and the agencies’ actions, summon officials to testify under oath, compel the production of documents and the answering of interrogatories under oath, compel the submission of compliance reports, make initial findings of compliance or noncompliance with the court’s orders, and report findings and make recommendations to the court. E. Issues and Prior Proceedings on the Present Appeal The parties present for our review several issues going to the merits of plaintiffs’ claims and to various aspects of the relief ordered by the district court. NYSDOT challenges principally the court’s decision on the merits, contending (1) that the court erred in finding that (a) the FEIS’s treatment of the fisheries issue was inadequate when the FEIS was issued, and (b) the subsequent Lawler data required the agencies to prepare a supplemental EIS, and (2) that the court erred in concluding, on the basis of these findings, that there had been violations of NEPA, the Clean Water Act, and the Rivers and Harbors Act. NYSDOT and the federal defendants contend that even if the court was correct in its conclusions that the federal statutes had been violated as to the fisheries question and that a supplemental EIS was required on that issue, the court erred in ordering that the SEIS include updated consideration of issues other than fisheries. In addition, the federal defendants contend that the court had no power to impose record-keeping requirements on the Corps and FHWA, to prohibit the Corps and FHWA from being joint lead agencies in the preparation of the SEIS, or to appoint a special master to control the federal agencies’ reconsideration. On its cross-appeal, Sierra Club contends principally that the district court erred in upholding the Corps’s 1981 reliance on the information in the 1977 FEIS with respect to nonfisheries issues, because (1) the Corps was required to base its permitting decision on an up-to-date EIS, and (2) the Corps was not entitled in any event to rely on the January 1977 EIS because it was prepared by NYSDOT, the permit applicant, rather than by a federal agency. In addition, plaintiffs renew their contention that the Westway landfill constitutes a “dike” requiring Congressional authorization under § 9 of the Rivers and Harbors Act. Following oral argument of the appeals, this panel, with Judge Oakes dissenting, granted the federal defendants’ motion for a stay of the district court’s judgments insofar as they appointed a special master and had the effect of determining that the Corps and FHWA could not act as joint lead agencies in preparation of a supplemental EIS. We declined, with Judge Mes-kill dissenting, to stay the court’s imposition of record-keeping requirements in connection with the agencies’ reconsiderations. We turn now to the merits of the various appeals. For the reasons below, we uphold the district court’s determinations (1) that FHWA and the Corps breached their duties under NEPA, (2) that the Corps violated the Clean Water Act by unquestioningly relying on a FEIS that was inadequate as to the issue of aquatic impact, and (3) that those violations warranted the invalidation of the landfill permit granted by the Corps and of the FEIS with respect to fisheries issues. ’ We conclude, however, that neither the reasons given by the district court nor those raised by plaintiffs in their cross-appeal justified the district court’s order that a supplemental EIS include material on issues other than fishery resources, and we therefore modify the judgments in this respect. Finally, we vacate the court’s appointment of a special master to oversee the preparation of a supplemental EIS and the ruling that FHWA and the Corps may not act as joint lead agencies in its preparation, but we uphold the requirement that those agencies maintain adequate records to permit appropriate judicial review of their decisions reached after reconsideration. II. THE MERITS A. NEPA As the Supreme Court has stated repeatedly, although NEPA established “ ‘significant substantive goals for the Nation,’ ” the balancing of the substantive environmental issues is consigned to the judgment of the executive agencies involved, and the judicially reviewable duties that are imposed on the agencies are “ ‘essentially procedural.’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) (quoting 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 (1978) (“ Vermont Yankee ”)). “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, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (quoting Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972)). The primary function of an environmental impact statement under NEPA is “ ‘to insure a fully informed and well-considered decision,’ [although] not necessarily ‘a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency.’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, supra, 444 U.S. at 227, 100 S.Ct. at 499 (quoting Vermont Yankee, supra, 435 U.S. at 558, 98 S.Ct. at 1219); see also Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir.1972). In order to fulfill its role, the EIS must set forth sufficient information for the general public to make ah informed evaluation, see id.; Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir.1973), and for the decisionmaker to “consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action.” County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir.1977) (“County of Suffolk”), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). In so doing, the EIS insures the integrity of the process of decision by giving assurance that stubborn problems or serious criticisms have not been “swept under the rug.” Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir.1973). The “ ‘detailed statement’ ” required by § 102(2)(C) of NEPA thus “is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.” Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). Given the role of the EIS and the narrow scope of permissible judicial review, the court may not rule an EIS inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public. County of Suffolk, supra, 562 F.2d at 1383. We have described the district court’s function as follows: The district court does not sit as a super-agency empowered to substitute its scientific expertise or testimony presented to it de novo for the evidence received and considered by the agency which prepared the EIS. Environmental Defense Fund v. Froehlke, 368 F.Supp. 231, 240 (W.D. Mo.1973), aff’d, 497 F.2d 1340 (8th Cir.1974) . The court’s task is merely “to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors.” Sierra Club v. Morton, 510 F.2d [813, 819 (5th Cir.1975) ]. “The court is not empowered to substitute its judgment for that of the agency.” Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 468 (2d Cir.1971) cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972), quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This is particularly true when it comes to evaluating the factual conclusions of the EIS. If the agency’s conclusions have a “substantial basis in fact,” FPC v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 643, 30 L.Ed.2d 600 (1972), and if the EIS has set forth responsible opposing scientific views, Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783 (1971), it is not for the district court to resolve conflicting scientific options. Id. If the district judge finds that the agency did not make a reasonably adequate compilation of relevant information and that the EIS sets forth statements that are materially false or inaccurate, he may properly find that the EIS does not satisfy the requirements of NEPA, in that it cannot provide the basis for an informed evaluation or a reasoned decision. Further, the court may properly be skeptical as to whether an EIS’s conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise. Silva v. Lynn, supra, 482 F.2d at 1285: [WJhere comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response. See also County of Suffolk, supra, 562 F.2d at 1383: “Where evidence presented to the preparing agency is ignored or otherwise inadequately dealt with, serious questions may arise about the author’s efforts to compile a complete statement.” In the present case the district court’s rulings on the merits of plaintiffs’ NEPA claims were consonant with the proper scope of its review and the proper view of the obligations imposed on FHWA and the Corps. With respect to the fisheries issues, the court found, inter alia, that the FEIS contained false statements depicting the interpier region as “biologically impoverished” and as a “biological wasteland,” when in fact the interpier area in winter harbored a concentration of juvenile striped bass. The court found that the FEIS statements regarding aquatic impact had not been compiled in “objective good faith.” Notwithstanding NYSDOT’s contention that “the FEIS set forth the relevant facts that were known about the interpier area and the surrounding Hudson estuary at the time it was prepared ...,” (NYSDOT brief on appeal at 24), the court’s findings to the contrary are amply supported by the record. For example, after the DEIS was issued, the Project received critical comments regarding fisheries impact from Fisheries Service, Wildlife Service, and EPA to the effect that the fish life had been underestimated and that the information provided was inadequate. Although the FEIS purported to respond to these comments, no new studies were performed, no additional information was collected, no further inquiry was made; and the FEIS essentially reiterated or adopted the statements in the DEIS. Employees of the Project and FHWA testified that they knew before getting any data from the Lawler study that the Project’s 1973 sampling had been faulty in both timing and technique and that these flaws were the reason the earlier study had revealed virtually no fish in the interpier area. Yet the Water Report, prepared in the wake of comments to the DEIS and appended to the FEIS, simply relied on the 1973 data. Bridwell, who was responsible for the preparation of the FEIS’s fisheries discussion testified that he was aware that the Water Report had not attempted to make any thorough or investigative inquiry into the existence of fish in the interpier area. He stated that the Water Report had attempted to verify only the existing literature on fish life in that area. It is not clear that even this academic study was performed: the Water Report neither identified any existing literature on the subject nor stated that there was no such literature; Bridwell himself was unaware of whether any literature existed. The evidence at trial suggested that there was no literature upon which the Report could have based its conclusion that the interpier area was biologically impoverished. Initial responsibility for the inaccurate characterization of the interpier area as a biological wasteland must be attributed to Sydec which the court found authored the FEIS and which was under the jurisdiction of NYSDOT. 541 F.Supp. at 1371. NEPA did not prohibit FHWA’s reliance on NYS-DOT for preparation of the FEIS, see NEPA § 102(2)(D), 42 U.S.C. § 4332(2)(D) (added by Pub.L. No. 94-83, 89 Stat. 424 (1975)), but it did require FHWA to make its own independent evaluation of the FEIS, § 102(2)(D)(iii), 42 U.S.C. § 4332(2)(D)(iii). There was no evidence that FHWA made any independent evaluation whatever of the fisheries issues. There was no proof that it had sought to learn what comments had been received on the DEIS from other federal agencies with expertise in special environmental subjects. FHWA officials testified that they could not recall whether they had reviewed the pointed criticisms of Fisheries Services. They stated that they may simply have ignored these criticisms as unimportant in relation to other Westway concerns. While it would indeed have been within FHWA’s discretion to make a substantive determination that an adverse impact on fisheries did not outweigh the benefits to be gained, this was not the evaluation that was made. Rather, FHWA ignored criticisms pointing out that FHWA lacked “sufficient information to permit a valid assessment” of marine impact. In short, we concur in the district court’s view that the FEIS did not reasonably adequately compile relevant information with respect to fisheries impact. The evidence as to the cavalier manner in which the Project had reached its conclusion that the interpier area was a biological wasteland, and as to FHWA’s failure to make an independent evaluation or to react in any way to sister agencies’ pointed comments that the draft EIS did not provide adequate information for a reasoned assessment of impact on fisheries, easily supports the district court’s findings (1) that the FEIS’s fisheries conclusions lacked a “substantial basis in fact,” and (2) that a decisionmaker relying on the January 1977 EIS could not have fully considered and balanced the environmental factors. In the circumstances, we agree that FHWA’s issuance of the FEIS, and the Corps’s reliance on the FEIS, violated NEPA. B. The Clean Water Act The district court’s ruling that the Corps violated § 404 of the Clean Water Act, 33 U.S.C. § 1344, is also supported by the record. The obligations imposed on the Corps by the Clean Water Act differ somewhat from those imposed by NEPA. In particular, although the Clean Water Act requires public hearings and consideration of the “public interest” before the Corps decides whether to issue a permit, see 33 C. F.R. § 320.4, it does not itself require the same types of environmental disclosures that are required by NEPA. Rather, in order to satisfy the Clean Water Act, the Corps primarily must give public notice, conduct hearings, make its own assessment of the impacts of the proposed project, and create a reasoned administrative record for its decision. See River Defense Committee v. Thierman, 380 F.Supp. 91, 95 (S.D.N.Y.1974). In reviewing the validity of a decision by the Corps to issue a permit under the Clean Water Act, a court should, as provided by the Administrative Procedure Act (“APA”), uphold the decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1976); see Nofelco Realty Corp. v. United States, 521 F.Supp. 458, 462 (S.D.N.Y.1974); cf. Taylor v. District Engineer, 567 F.2d 1332, 1336 (5th Cir.1978). Where the Corps may rely on an EIS previously issued by a sister agency, see 40 C.F.R. § 1500.7; 40 C.F.R. § 1506.3 (1982), the determination of whether a Corps permitting decision was arbitrary and capricious depends not only on the information disclosed by that EIS, but also on information disclosed by later studies and information conveyed to the Corps. See Nofelco Realty Corp. v. United States, supra; see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311 (5th Cir.1976). The district court’s findings suggest that the Corps’s decision was arbitrary 'and capricious. The court found every level of the Corp’s review process woefully inadequate. It found that although the district engineer did not make his decision to approve the permit application until some 2V2 years after the application was filed, the decision “was made without having any reliable fishery information whatever.” 536 F.Supp. at 1253. Similarly, the court found that the division engineer’s decision was based on so little information that it could “only be explained as resulting from an almost fixed predetermination to grant the Westway landfill permit.” Id. at 1248. It found the chief of engineer’s decision virtually a rubber stamp of the decisions of his subordinates: “It is clear that [the chief of engineers] sought to expedite the matter, and saw no reason to ‘second guess’ the decision of the Division Engineer.” Id. at 1251. These findings are supported by the record. NYSDOT’s application for a permit was filed in April 1977 and formally approved by the district engineer in September 1979. There was no evidence that in the interval the Corps did anything whatever to conduct its own investigation into the fisheries questions on which it was to pass. It had announced that the FEIS was adequate for its purposes barely two weeks after receiving NYSDOT’s application, hardly an indication that any critical thought had been brought to bear on the fisheries issues. The Corps then received criticisms from Fisheries Service, Wildlife Service, and EPA, indicating that there were serious inadequacies in the information provided by the SEIS. It was required to give “great weight” to the views of Fisheries Service and Wildlife Service, 33 C.F.R. § 320.4(c); yet it merely passed them on to the Project and was not moved to conduct any inquiry of its own. Nor, apparently, was it interested in helping to shape the Lawler study that EPA finally prevailed upon NYSDOT to commission. Indeed, knowing that the Lawler study was underway, the district engineer decided to approve the permit without waiting for the results of the study. The division engineer’s decision was at least equally flawed. By the time that decision was rendered, the Lawler report had been received, and it confirmed the criticisms of the objecting federal agencies and revealed the inaccuracy of the FEIS’s conclusion that the interpier area was a biological wasteland. Nonetheless, the division engineer, like the district engineer, merely forwarded all federal agency criticisms of the FEIS to NYSDOT and FHWA, and had no independent Corps study made of the questions raised. At the chief of engineers level there may have been some effort by a Corps biologist to review independently the Lawler data, but this hardly sufficed to meet the Corp’s obligation under the Clean Water Act to make a reasoned decision: it resulted only in a two-page memorandum that the record does not reveal was even reviewed by the decisionmakers. Thus the record discloses that at every level of review the Corps simply ignored the views of sister agencies that were, by law, to be accorded “great weight.” The evi-denee amply warranted the district court’s finding that the Corps never made a serious attempt to discover, or to make a decision based on, reliable fisheries information. In the face of the Lawler report and the other federal agencies’ criticisms, the Corps’s unquestioning reliance on the FEIS must be regarded as arbitrary and capricious. We affirm the court’s ruling that the Corps violated the Clean Water Act. C. The Rivers and Harbors Act 1. Section 10 Section 10 of the Rivers and Harbors Act, see note 5 supra, prohibits the creation of any obstruction in navigable waters without affirmative authorization by Congress and makes such an obstruction unlawful without the prior approval of the Corps chief of engineers and authorization by the Secretary of the Army. The district court ruled that the Corps’s failures, inter alia, to investigate, develop adequate information, and make accurate public disclosures as to the fisheries issues constituted a violation of this provision. Whatever the validity of this conclusion, however, we reverse the judgment insofar as it upheld the § 10 claim since the Supreme Court has ruled that § 10 of the Rivers and Harbors Act does not provide a private right of action. California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). 2. Section 9 Section 9 of the Rivers and Harbors Act prohibits, inter alia, construction of dikes in navigable waters absent the prior approval of the Corps chief of engineers and the Secretary of the Army and the consent of Congress. Plaintiffs contended that defendants violated, or perhaps were about to violate, § 9 because Congressional consent had not been obtained for the proposed Hudson River landfill. The district court dismissed this claim as a matter of law prior to trial, without specifying its reasons. Whether or not the Westway landfill would be a dike within the meaning of § 9 as plaintiffs contend, we affirm the dismissal because we conclude that § 9 does not provide a private right of action. Using the Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), analysis as employed by the Supreme Court with respect to § 10 in California v. Sierra Club, supra, we see no grounds for con-eluding that § 9 was designed to create a private right of action. There is no basis for inferring that § 9 was enacted for the “especial benefit” of any class of individuals, nor that plaintiffs would be within such a class if there were one. As is the case with § 10, § 9 “states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further.” Id.,- 451 U.S. at 294, 101 S.Ct. at 1779. In the absence of any apparent intent on the part of Congress to create a private right of action to enforce § 9, we affirm the district court’s dismissal of plaintiff’s § 9 claim. III. RELIEF A. The Requirement of a Supplemental EIS on Fisheries Issues The principal relief ordered by the district court was an injunction against any further Westway activities affecting the bed or waters of the Hudson River unless and until a supplemental EIS has been prepared by the Corps containing adequate and accurate information with respect to the fisheries issues. Subject to the modification set forth in Part III.C.2. infra, as to who may author the SEIS, we regard this relief as well within the proper scope of the district court’s discretion in the circumstances of the present case. As discussed in Part II.A. supra, the record revealed that the authors of the FEIS had not made an adequate compilation of fisheries data, had not compiled information in objective good faith, had paid no heed to the experts’ warnings that they lacked needed information, and hence had reached the erroneous conclusion that the interpier area was a biological wasteland. This baseless and erroneous factual conclusion then became a false premise in the decisionmak-ers’ evaluations of the overall environmental impact of Westway and their balancing of the expected benefits of the proposed action against the risks of harm to the environment. Thus, the January 1977 EIS provided no valid “outward sign that environmental values and consequences [had] been considered” with respect to fisheries issues, Andrus v. Sierra Club, supra, 442 U.S. at 350, 99 S.Ct. at 2337, and hence furnished no assurance that the Westway approvals had been given on a reasoned basis. Enforcement of NEPA requires that the responsible agencies be compelled to prepare a new EIS on those issues, based on adequately compiled information, analyzed in a reasonable fashion. Only if such a document is forthcoming can the public be appropriately informed and have any confidence that the decisionmakers have in fact considered the relevant factors and not merely swept difficult problems under the rug. Accordingly, we uphold the district court’s requirement that before Westway landfill may proceed, FHWA or the Corps must prepare a new EIS on fisheries issues. Whether the new statement be called an amended EIS as in Silva v. Lynn, supra, or a supplemental EIS, as in the judgments below, NEPA requires no less. Our ruling on this point is not, however, an expansive one. We do not intend to suggest that inaccuracies in an EIS will always, or even usually, warrant a court’s ordering the preparation of a supplemental EIS. Had the January 1977 EIS contained a reasoned analysis of fisheries data reasonably adequately compiled, and merely drawn an erroneous factual conclusion, we would not believe it proper to order FHWA or the Corps to prepare a SEIS. See 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). Or had reasonable investigative efforts resulted in less accurate data than later became available, the determination as to whether the later data warranted preparation of a SEIS, see 33 C.F.R. § 230.11(b) (1981); see also 33 C.F.R. § 209.410(g)(1) (1977); see also Part III.B. infra, would be a matter committed to the discretion of the responsible agencies, not to the judgment of the court. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980) (it is for the agency to “evaluate [new information] and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures”). Nor do we express any view as to whether the decisionmakers’ overall evaluation of the benefits and detriments of West-way was “wrong.” We hold simply that a decision made in reliance on false information, developed without an effort in objective good faith to obtain accurate information, cannot be accepted as a “reasoned” decision. B. The Requirement of a Supplemental EIS on Nonfisheries Issues As indicated in Part I.D. above, the district court rejected plaintiffs’ contentions that the January 1977 EIS was inadequate in its treatments of nonfisheries issues such as air and noise pollution, flooding, funding, and the like, and hence declined to find that FHWA and the Corps had violated NEPA and the Clean Water Act with respect to these issues. 536 F.Supp. at 1234. Nonetheless, in its April and July Judgments, the court ordered that before the Westway landfills could proceed, the Corps must prepare a SEIS containing current information on subjects other than fisheries impacts. Information was required as to such matters as current cost estimates, substantial new developments as to alternatives, and current plans for the selection of real estate and commercial developers. We conclude that this requirement was not justified either on the ground relied on by the district court, to wit, that the FEIS was probably out-of-date, or on the alternative ground urged by plaintiffs, i.e., that the FEIS was prepared by an author on whom the Corps was not entitled to rely. 1. The Passage of Time In an opinion dated August 5, 1982 (“August 5 Opinion”), denying the motion of FHWA and the Corps for elimination of the requirement that the SEIS include current nonfisheries information, the court gave the following reasons for requiring such information: The provision in the April 14 Judgment regarding non-fisheries information is based upon the obvious fact that certain important information contained in the EIS filed five years ago in 1977 is probably seriously out-of-date — such as information about cost estimates, the availability and value of certain alternatives, and other similar factors. The Judgment requires that the supplemental EIS provide current information on such subjects. This requirement is not something gratuitous on the part of the Court. It follows, as an inevitable necessity, from the fact that the Corps of Engineers is required to reconsider the whole range of relevant factors bearing upon the landfill permit application, that this range of factors must include current information on items such as costs and alternatives, and that the currently issued supplemental EIS must reflect the significant factors which are being considered by the Corps. All of this follows from the rulings of the Court, and must be included in the in-junctive relief. August 5 Opinion at 6 (emphasis in original). We disagree. Since the requirement that the SEIS include nonfisheries information was not justified by the violations found by the court, it was not a proper exercise of the court’s discretion within the framework of NEPA or the regulations thereunder. We note at the outset that supplemental nonfisheries information was not required as a remedy for any violation of NEPA. As to the nonfisheries questions, the court found no failure to compile adequate data, no failure to make a reasoned analysis of the data compiled, no disregard of any pertinent data, and no failure to disclose the relevant data to the public. In short, as to nonfisheries matters it found no failure by any party to proceed on a good faith basis, and hence no nonfisheries violation of NEPA or any other statute. As the bad faith and inadequacies found by the court concerned only the fisheries issues, the requirement of a SEIS covering nonfisheries issues was not responsive to the violations found and was not needed to vindicate any interest of NEPA in requiring an EIS. Nor do we view the district court’s feeling that the January 1977 EIS “is probably seriously out-of-date” as a valid basis for ordering that a nonfisheries SEIS be prepared. First, the mere passage of time rarely warrants an order to update the information to be considered by an agency: “Administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed].... If upon the coming down of the order litigants might demand rehearing as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.” Vermont Yankee, supra, 435 U.S. at 554-55, 98 S.Ct. at 1217 (quoting ICC v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944) (bracketed material in Vermont Yankee)). Further, the obligation of the Corps under the Clean Water Act to make an up-to-date investigation in order to determine whether to issue a permit does not mean that the Corps must issue an updated SEIS since, as discussed in Part II.B. supra, the Clean Water Act does not require issuance of any EIS. Finally, with respect to NEPA, it is of course true that §§ 102(2)(A) and (B) impose on federal agencies the obligation to continue, even after an EIS is issued, to gather and evaluate new information relevant to the impact of their actions. 42 U.S.C. §§ 4332(2)(A) and (B). In general, however, the guidelines promulgated by the Council on Environmental Quality (“CEQ”) and by the Corps require that a SEIS be prepared only if the newly acquired information is “significant,” see 40 C.F.R. § 1502.9(c)(l)(ii) (1981); 33 C.F.R. § 230.11(b); Warm Springs Dam Task Force v. Gribble, supra, 621 F.2d at 1024, and we conclude that the ultimate determination as to whether a SEIS is required is left to the agency. Cf. Hudson River Fishermen’s Association v. FPC, 498 F.2d 827 (2d Cir.1974) (requiring FPC hearings on effect of newly discovered fisheries information). While we have had no prior occasion to interpret these guidelines with respect to where lies the responsibility for a determination that new information is so “significant” as to mandate a SEIS, we have analyzed the matter of who bears the responsibility for determining whether proposed action will so “significantly” affect the environment that an EIS is required in the first place. In Hanly v. Kleindienst, supra, for example, we ruled that the entity authorized to make the threshold determination as to whether an action is one “significantly affecting the quality of the human environment,” within the meaning of § 102(2)(C) of NEPA, is the agency in charge of the proposed action. 471 F.2d at 828. See also Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). In Hanly v. Kleindienst, supra, we noted that “Congress apparently was willing to depend principally upon the agency’s good faith determination as to what conduct would be sufficiently serious from an ecological standpoint to require use of the full-scale [NEPA-disclosure] procedure.” 471 F.2d at 830. We see no basis for drawing a different inference as to Congress’s intentions with respect to what entity should be authorized to determine whether a SEIS is required. See Warm Springs Dam Task Force v. Gribble, supra. Thus, although the responsible agency may be ordered to conduct an analysis of newly received information and to evaluate it in light of the proposed action, see Hanly v. Kleindienst, supra, the ensuing decision as to whether the new material is sufficiently significant to warrant a SEIS must remain the responsibility of the agency- In the present case, since the court did not find any bad faith in connection with the FEIS’s treatment of nonfisheries issues we see no reason to deflect Congress’s apparent intention. FHWA, in accordance with 40 C.F.R. § 1502.9(c)(l)(ii), and the Corps, in accordance with 33 C.F.R. § 230.11(b), should determine whether the passage of time since issuance of the FEIS and the intervening developments are sufficiently significant to mandate-a SEIS, and the district court may order that this determination be made. But the judgments may not properly compel the agencies to issue a SEIS as to nonfisheries issues on the ground that the FEIS is out-of-date. 2. An Unreliable Author Plaintiffs have argued that a Corps SEIS as to nonfisheries issues is required because, since the January 1977 EIS was authored by NYSDOT, the permit applicant, rather than by a federal agency, the Corps was forbidden as a matter of law to rely on it. While plaintiffs’ premise has merit, the conclusion they urge does not follow. We agree with plaintiffs that under § 102(2)(D) of NEPA the Corps was not authorized to rely on an EIS prepared by NYSDOT. In a number of cases arising in the early 1970’s, this Court ruled that federal agencies had violated NEPA by relying on state agencies to prepare an EIS. We construed that reliance as an impermissible delegation of the federal agency’s authority and responsibility to a local, interested entity that would not be likely to bring the needed objectivity to the- mandated evaluation of federal interests: A state agency is established to pursue defined state goals. In attempting to secure federal approval of a project, “self-serving assumptions” may ineluctably color a state agency’s presentation of the environmental data or influence its final recommendation. Transposing the federal duty to prepare the EIS to a state agency is thus unlikely to result in as dispassionate an appraisal of environmental considerations as the federal agency itself could produce. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 931 (2d Cir.1974), cert. granted, judgment vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), reversed, 531 F.2d 637 (in light of Pub.L. No. 94-83, 89 Stat. 424 (1975)); accord Natural Resources Defense Council v. Callaway, supra, 524 F.2d at 87 (evil sought to be avoided is preparation of EIS by “a state agency, with an individual ‘axe to grind’, i.e., an interest in seeing the project accepted and completed in a specific manner as proposed” because “[ajuthorship by such a biased party might prevent the fair and impartial evaluation of a project envisioned by NEPA”); 1-291 Why? Association v. Burns, 517 F.2d 1077 (2d Cir.1975) (upholding preliminary injunction barring construction of federally funded highway where, although FHWA reviewed and maintained contact with state agency, state agency drafted EIS and FHWA approved the EIS four days after receipt of the state draft, without alteration or comment); see also Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 420 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). An immediate result of these decisions was that the pace of FHWA funding for highways slowed appreciably. In response, in 1975, Congress enacted § 102(2)(D) of NEPA, 42 U.S.C. § 4332(2)(D), Pub.L. No. 94-83, 89 Stat. 424, to provide that where the federal action involves a grant of funds to a state, the necessary EIS may be prepared under certain circumstances by the state with federal agency supervision: “any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official.” The legislative history of § 102(2) (D) indicates that Congress intended this provision to allow reliance on state entities only by federal agencies whose chief responsibility was funding, and that it consciously refrained from allowing such reliance by agencies whose primary function was determining whether a permit should be issued. Permitting decisions were viewed differently because they generally involve a greater degree of federal decisionmaking. S.Rep. No. 52, 94th Cong., 1st Sess. 9, reprinted in 1975 U.S.Code Cong. & Ad.News 859, 866. Thus, the Committee reporting the bill out of conference “fully concur[red]” in the sentiment expressed during the legislative hearings on the bill that the amendment “reached only a very few Federal programs other than the Federal-aid highway program ... [for example] the Law Enforcement Assistance Administration program and the Bureau of Outdoor Recreation’s program of grants under the Land and Water Conservation Fund Act.” S.Rep. 52, supra, at 9; 1975 U.S.Code Cong. & Ad. News at 867. In the present case, therefore, § 102(2)(D) sanctioned reliance on a state-prepared EIS by FHWA, a funding authority, but not by the Corps, a permitting agency. And although the Corps would perhaps have been authorized by 40 C.F.R. § 1506.3(a) (1982) to rely on an EIS prepared by a sister federal agency, this provision provides the Corps no solace with respect to the FEIS here, since the FEIS was prepared by NYSDOT. Thus, within the terms of NEPA as we have construed them, the Corps should have prepared its own EIS and not have relied on the FEIS prepared by NYSDOT, regardless of the FEIS’s accuracy vel non. The fact that the Corps should have prepared its own EIS rather than relying on the FEIS prepared by NYSDOT does not, however, mean that an order should have been entered requiring the Corps to prepare a SEIS on nonfisheries issues as well as fisheries issues. First, as a purely logical matter, to be responsive to this violation, a remedial order would have had to require the Corps to prepare a completely new EIS, not merely a supplemental EIS with respect to developments since 1977. Such a remedy would have required a wasteful duplication of effort as to issues the court has found adequately treated. Not only common sense, but executive policy as well suggests that such duplication be avoided. See 40 C.F.R. § 1500.4 (1982) (CEQ regulations directing agencies to reduce paperwork in implementing NEPA); Clean Water Act § 404(q), 33 U.S.C. § 1344(q) (Corps and Department of Transportation directed to cooperate to reduce unnecessary duplication and paperwork in processing Department projects requiring Corps approval). Nor would it have been proper to order the Corps to prepare a SEIS on nonfisheries issues simply because it violated NEPA by relying on an EIS that was, on those issues, adequate, for “[r]elief under NEPA should be remedial rather than punitive.” Warm Springs Dam Task Force v. Gribble, supra, 621 F.2d at 1022. See Wein-berger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In all the circumstances, we conclude that the refusal of the district court to order preparation of a nonfisheries SEIS on the ground advanced by plaintiffs was entirely appropriate. C. The Special Procedural Relief In addition to granting the above substantive relief, the district court granted several forms of special relief concerning the procedures to be followed by FHWA and the Corps in their reconsideration of Westway questions. These included the imposition of a record-keeping requirement, an order prohibiting FHWA and the Corps from acting as joint lead agencies in the preparation of a SEIS, and the appointment of a special master to oversee compliance with the court’s judgments. While we uphold the record-keeping requirement, we vacate the prohibition against the two agencies’ acting as joint lead agencies and the appointment of the special master. 1. Record-keeping In its April Judgment, the court included a provision requiring the Corps to “keep records of all activities, deliberations, and communications (including communications with the FHWA and any other federal official or agency) which occur in relation to [the Westway] permit application.” The July Judgment imposed a like requirement on FHWA, NYSDOT, and the administrative units, consultants, and contractors of each. While such a requirement is out of the ordinary vein of relief appropriately ordered by a court in connection with a remand to a federal administrative agency, we conclude that in the circumstances of the present case it was permissible and did not constitute an abuse of the court’s discretion. In reaching this conclusion we start by recognizing the goals of judicial review under NEPA and the Clean Water Act. As discussed in Part II.A. above, judicial review of agency action for conformity with the requirements of NEPA is limited to evaluations of whether mandated public disclosure procedures have been followed and whether the decisionmakers have fully considered the environmental factors involved in order to reach a reasoned decision. As discussed in Part H.B., the court’s review under the Clean Water Act focuses on whether the Corps has followed the mandated notice-and-hearing procedures and whether it has created a reasoned administrative record for its decision. And, as we have noted in Part III.B. above, the court may compel the decisionmaking agencies to (compile the reasoned record needed to comply with these statutes before it accords the required judicial deference to any substantive decision reached by the agencies. See 'Hanly v. Kleindienst, supra. The imposition of a record-keeping requirement is thus closely related to both the statutory mandates that the agencies create reasoned records on which the decisionmakers will act and the responsibility of the court to determine whether this has been done. While normally a court should not attempt to dictate the procedures to be used by the agency on remand, see authorities cited in Part III.C.3., infra, the circumstances of the trials conducted below justify the imposition of record-keeping requirements in the present case. At the First Trial, for example, in which the court sought to determine whether there was a rational basis for the actions of the Corps in ruling on NYSDOT’s permit application, there was a surprising dearth of evidence as to the nature and substance of the Corps’s investigations and deliberations. Although decisions had been made by the district engineer, the division engineer, and the chief of engineers, not one of those officials, nor any of their authoritative advisors, was called to testify. With respect to the district engineer’s level, where the decision had been made to issue the permit without waiting for the results of the Lawler study, the only Corps witness was Linda Monte, a marine biologist who was not one of the decision-makers. With respect to the division engineer’s level, where the decision had been made to issue the permit despite the Lawler study’s revelations, the Corps again relied on the testimony of Monte, who had been promoted to the division level in 1980, and called two other witnesses. One was the Chief of the Operations Branch of the Constructions Operations Division, whose testimony consisted chiefly of a skeletal outline of the events at the division level. The other was another biologist. None of the three played any decisionmaking role, and neither the division engineer nor any member of his “Westway Committee” testified. With respect to the chief of engineers, who decided to issue the permit within a month of the elevation of sister agency criticisms to him, the only witness called was a biologist who had no role as a decisionmaker and who was not directly consulted by either the chief of engineers or his principal aide. The court’s review was further hampered by “problems of lack of records, lost records, [and] temporarily-lost-and-belatedly-discovered records.” August 5 Opinion at 7. At the Second Trial, at which FHWA’s actions were under scrutiny, responsible officials of FHWA testified, but faulty memories (perhaps conveniently blank, see 541 F.Supp. at 1372) and helter-skelter record-keeping practices made it difficult to determine the extent of FHWA’s responsible supervision of NYSDOT’s environmental investigations and disclosures. For example, when the Corps division engineer passed on to FHWA the criticisms of sister federal agencies and asked whether a supplemental EIS was necessary, FHWA referred the question to the Project. Eventually FHWA sent the Corps a letter dated October 9, 1980, advising that no SEIS was necessary, but the provenance of certain misstatements in “Attachment 2” to FHWA’s letter was, at trial, problematic. On the first day of his testimony, FHWA Area Engineer Graham Bailey testified repeatedly that NYSDOT had drafted Attachment 2; the next day he testified that he was “absolutely certain” he had drafted it and that the words and thoughts were entirely his own; still later, a document was produced indicating that NYSDOT had given Bailey the precise language that appeared in Attachment 2. No one from NYSDOT or the Project admitted having provided the language. Given the disclosure and reasoned-record goals of NEPA and the Clean Water Act and the difficulties in assessing the adequacy of the agencies’ record development that transpired at the trials below, we conclude that the special provision ordering the agencies to keep records concerning their Westway reconsiderations was permissible and appropriate. 2. Lead Agencies In the April Judgment the district court required, in connection with any renewal of the landfill permit application by NYSDOT, that the Corps prepare a SEIS. See Part I.D. supra. Shortly thereafter the court was informed that, pursuant to CEQ regulations, FHWA intended to participate in the process of supplementation as a joint lead agency with the Corps. Immediately prior to the start of the trial of plaintiffs’ claims against FHWA, the court announced that the April Judgment did not permit the proposed joint-lead procedure: THE COURT: ... And I want to state that I will regard it as a violation of the judgment which I entered on April 14th if the FHWA acts as a joint lead agency in connection with the preparation of the Environmental Impact Statement which the Corps of Engineers is now obligated to prepare. (Second Trial Tr. at 2.) We conclude that this restriction exceeded the court’s power and must be vacated. NEPA itself requires that an EIS, if one is necessary, be prepared by a “responsible Federal official.” 42 U.S.C. § 4332(2)(C). The statute does not purport to determine what agency is to prepare the EIS when two or more federal agencies are involved in a project. Regulations promulgated by the CEQ, however, contain guidelines for the designation of a lead agency to prepare the EIS on all aspects of a project involving more than one federal agency. Under these regulations, “[t]he agencies themselves are to designate the ‘lead’ agency ... ,” Natural Resources Defense Council v. Callaway, supra, 524 F.2d at 86, and are encouraged to consider “the possibility of joint preparation of a statement by all agencies concerned.” 40 C.F.R. § 1500.7(b); see also 40 C.F.R. § 1506.3. In the present case, the CEQ, whose views are entitled to substantial deference, see Andrus v. Sierra Club, supra, advised FHWA and the Corps that “[t]he joint lead agency approach is expressly sanctioned in Section 1501.5 of-the CEQ regulations and comports with the overall policy of the regulation and that the proposal for joint lead in the preparation of the Westway SEIS “is consistent with CEQ regulations.” We conclude that the designation of a lead agency or joint lead agencies is a matter committed to agency discretion, and we find nothing in NEPA or the regulations suggesting that the courts may overrule the determination by the agencies that are involved that one or more of them will be lead agency or agencies. Accordingly, we vacate so much of the April Judgment as purports to forbid FHWA to act as joint lead agency in the preparation of a SEIS. This interpretation of the authority of the agencies under NEPA does not, of course, alter the obligations imposed on the Corps by the Clean Water Act. Although FHWA and the Corps may act as joint lead agencies in the preparation of a fisheries SEIS, the Corps will continue to be required under the latter Act to conduct its own investigation in order to reach a decision, on a reasoned administrative record, as to whether to issue the landfill permit. 3. The Special Master The July Judgment provided for the appointment of a special master to oversee compliance by FHWA and the Corps with the court’s directives. As set forth in note 16 supra, the special master was given considerable control over the steps to be followed by FHWA and the Corps in their reconsiderations. He was expressly authorized, for example, to require that officials of FHWA and the Corps, and consultants employed by them, meet with him, to require that they prepare reports for his consideration, and to require that they submit draft SEISs for his review. The district court thereafter authorized him to determine, as betwee'n FHWA and the Corps, which agency would be allowed to take the lead in preparing the required SEIS. The plaintiffs urged him, inter alia, to control the agencies’ selection of consultants in the design of environmental studies and to forbid any conversation between the Corps and NYSDOT or its consultants with respect to interpretations of the Lawler data. In all the circumstances, we conclude that the appointment of a special master was not permissible. Fed.R.Civ.P. 53 allows the court to appoint a special master to ensure compliance with the court’s orders. See Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944). Rule 53(b) itself counsels restraint in the use of such masters (“A reference to a master shall be the exception and not the rule.”), and the Supreme Court has ruled repeatedly that, except in the most extraordinary circumstances, the courts may not control the internal operations of federal administrative agencies, see, e.g., Vermont Yankee, supra, 435 U.S. at 542-49, 98 S.Ct. at 1210-14; FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 333, 96 S.Ct. 579, 583,46 L.Ed.2d 533 (1976); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940). Vermont Yankee sets forth the Supreme Court’s most recent words of caution against the courts’ engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress: Absent constitutional constraints or extremely compelling circumstances the “administrative 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] at 290 [85 S.Ct. 1459 at 1467, 14 L.Ed.2d 383] quoting from FCC v. Pottsville Broadcasting Co., 309 U.S., at 143 [60 S.Ct. at 441], Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra, at 290, and n. 17 [85 S.Ct. at 1467, and n. 17] upheld this principle in a variety of applications, including that ease where the District Court, instead of inquiring into the validity of the Federal Communications Commission’s exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining § 4(j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals’ serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure. We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 [96 S.Ct. 579, 46 L.Ed.2d 533] (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to “exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops.” Id., at 333 [96 S.Ct. at 583], We went on to emphasize: “At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of ‘propelling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947).” Ibid. 435 U.S. at 543-45 [98 S.Ct. at 1211-12] (footnote omitted). In Vermont Yankee and in each of the cases it cited, the procedural restrictions found inappropriately imposed by the courts had been far less intrusive than that in question here, where the special master apparently was to control every detail of every step of the agencies’ reconsiderations. Vermont Yankee, supra (court orders requiring rulemaking process to include more opportunity for airing of issues and requiring rewriting of an administrative report); FPC v. Transcontinental Gas Pipe Line Corp., supra (court order that agency conduct investigation to supplement record); FCC v. Schreiber, supra (court order that agency, in conducting proceedings, protect confidentiality of certain testimony and documents); FCC v. Pottsville Broadcasting Co., supra (court order that agency’s public interest review process proceed on remand on the basis of already-existing record). We do not believe that “extremely compelling circumstances” warranting appointment of a special master exist here. In the present case, the district judge, in an opinion dated August 4, 1982 (“August 4 Opinion”), stated his reasons for believing that this extraordinary relief was warranted. He began the discussion as follows: The purpose of appointing a Special Master is to attempt to deal with problems about compliance with the Court’s judgments in a timely fashion and to minimize the risk of a second round of lengthy litigation at the end of the remand process. August 4 Opinion at 4. In like vein he closed this section of his discussion, after having described the course of the Westway project and of the litigation it had spawned, as follows: Thus over a year has been required in the current round of litigation that commenced after the Corps of Engineers granted the landfill permit. How long will be required by the Corps and the FHWA for the remand proceedings ordered by the Court is not now known. But what is most important, particularly in view of the history of the proceedings, is that every effort be made to deal with any problems about compliance with the Court’s orders promptly and to minimize the risk of another round of substantial litigation at the conclusion of the remand process. This is the reason for the appointment of a Special Master. Id. at 6 (emphasis in original). We regard the court’s concern as to the length of time during which Westway has been under consideration and the duration of the litigation as a wholly inadequate basis for the imposition of such an extraordinary remedy as appointment of a special master. The above authorities teach that it is not the province of the courts to control the “time dimension of the needed inquiry.” Vermont Yankee, supra, 435 U.S. at 545 [98 S.Ct. at 1212] (quoting FPC v. Transcontinental Gas Pipe Line Corp., supra, 423 U.S. at 333 [96 S.Ct. at 583] (quoting SEC v. Chenery Corp., supra, 332 U.S. at 196, 67 S.Ct. at 1577)). The timing concerns expressed by the district court simply are not the “extremely compelling circumstances” needed to justify judicial control of administrative agency proceedings. Of far greater significance is the matter of the bona fides of FHWA and the Corps in their prior consideration of the fisheries issues raised by Westway. In the latter sections of the August 4 Opinion, the court indicated that the appointment of a special master was desirable because of the past failures of the agencies to proceed in subjective good faith with respect to the fisheries issues. Thus, the court stated that the April and July Judgments “do not involve routine remands to agencies which have made honest errors of judgment or have had honest misunderstandings about their legal responsibilities,” id. at 7, and termed it a matter of “elementary prudence to guard against a repetition of the prior record of bad faith by appointing a special master,” id. at 14; see also id. at 16. Of the authorities discussed above, none dealt with instances in which the administrative agency was found to have operated in bad faith. Neither in those cases nor in any other of which we are aware has the nature of the “extremely compelling circumstances” needed to justify judicial interference with agency procedures been discussed with reference to the subjective quality of the agencies’ conduct. We think it prudent, before examining the district court’s findings of bad faith, to review the general framework within which the courts may normally assess the substance of agency actions. It is elementary that federal administrative agencies are arms of the executive or legislative branches of the government. They have been entrusted with substantive decisionmaking power by Congress. An agency's substantive decisions are largely discretionary and not subject to review by the courts; they must be upheld unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” APA § 706(2)(A). Thus, there may be instances in which the court disagrees with the agency’s assessment of the significance of given facts or data; but the disagreement does not mean that the agency’s view was wrong, or even if it was wrong, that the agency’s decision based on that view was reached in bad faith. The very concept of discretionary decisionmaking leaves room for divergent sustainable views. With this framework in mind we turn to the district court’s findings of bad faith. Following the Second Trial, the court concluded that FHWA had not acted on a reasonable basis or in subjective good faith when it failed, in light of the Lawler study results, to supplement or correct the FEIS. We set forth below six principal findings discussed in the court’s June 30, 1982 opinion, that led to that conclusion. (A) The [Lawler] information, as gradually obtained by the Project and the FHWA over a period of many months, was of acute concern because it was totally at variance with what had been set forth in the January 1977 EIS and because it showed that the landfill would eliminate a highly productive fisheries habitat. The Project and the FHWA responded to this circumstance with a plan to delay issuance of the report by [Lawler], and to manipulate the presentation of this data in order to mask its full import.... The decision of the Project and the FHWA not to issue a' corrective or supplemental EIS was not taken in good faith reliance upon expert judgment, but was designed to avoid public disclosure of a major environmental impact. 541 F.Supp. at 1372-73. (B) During the summer of 1980, among the events leading to an August 13 meeting called by the Corps to discuss mitigation, the court found that Project and FHWA officials fully realized that [the Lawler] data showed that the proposed landfill would eliminate a significant fishery habitat in the Hudson estuary.... The Project devised a strategy to deal with this problem. The Project gave the Division Engineer’s office some information, although not complete information, about the results of the [Lawler] study.... It was agreed among the Project, the FHWA and the Corps that, in order to make the issuance of the landfill permit “more defensible” (PI. Ex. 74), and to defuse the opposition as much as possible, mitigation concepts would be worked out to attempt to compensate for the loss of fish habitat. Id. at 1374. (C) At an August 20, 1980 meeting attended by officials of FHWA, the Project, and Lawler, the discussion of the [Lawler] fisheries data and the impact of the proposed landfill was in far different terms from the positions which were later taken officially by the Project and the FHWA. At this meeting, the Project representatives, seconded by [Lawler], told the FHWA that the [Lawler] study indicated that the landfill could cause significant loss of fish population and subsequent adverse effects on the level of future stocks of the species in question in the lower Hudson area. Id. (D) The agency officials identified by the court as most intimately involved with the Lawler data were Bridwell and Joan Walter, both of Sydec. The substance and tone of the [Lawler] report were entirely different from what was expressed privately by the Project and [Lawler] at the meeting on August 20.... Bridwell and Walter deny any role in drafting or directing the drafting of the aspects of the [Lawler] report here criticized.... The Court finds that, even if they played no role in the drafting of the [Lawler] report, Bridwell and Walter knew about the misleading nature of the report at the time it was issued. Id. at 1377. (E) FHWA advised the Corps, by letter dated October 9, 1980, that there was nothing in the Lawler study that warranted a new or supplemental EIS. “Attachment 2” to this letter stated that the “[Lawler] data ... does [s/c] not change the [FEIS’s] basic conclusion, that is, fish use the area.” The court found that “[t]his statement, and indeed the entire description relating to fisheries, was simply fraudulent.” Id. at 1379. (F) As to the authorship of Attachment 2, the court found as follows: Despite her denials at the trial, it is now clear that Walter participated in the drafting of Attachment 2, for use by the FHWA.... It is difficult to believe that Bridwell did not know of what was being given to the FHWA on this important matter, particularly in view of the fact that the Beveridge & Diamond memorandum [containing in virtually haec verba the mischaracteri-zation of the FEIS’s conclusion on fisheries] was addressed to him. In any event, Bridwell received a copy of the October 9,1980 letter after it was sent, and read it. The court finds that both Bridwell and Walter knew of the obvious falsity of the letter, and bear a responsibility for drafting or failing to correct it. Id. at 1381. While we find that the record reflects distressing derelictions by the federal agencies, including a certain amount of bad faith by FHWA, we believe the picture as to those agencies is not quite so unsavory as the above findings depict it. A number of observations serve to place matters in a somewhat different perspective. First, we note that the district court did not find that FHWA had acted in subjective bad faith in the issuance of the original EIS. It was Sydec, leader of the Project and under the aegis of NYSDOT, which drafted the FEIS and which “knew, or should have known, of the lack of factual basis for what was stated.” Id. at 1372; see id. at 1371, 1382. Although FHWA violated its statutory duties by not making its own investigation into the matter, the court did not find that it deliberately closed its eyes to available information or otherwise acted in subjective bad faith at that time. Second, some of the court’s findings of bad faith are undercut by other findings that appear to be inconsistent. For example, item (A) above suggests that FHWA, equally with the Project, obtained the Lawler data as it was generated from April 1979 through April 1980, and responded with a scheme of delay. Although the record indicates that this was true of the Project, it is not so clear as to FHWA, and the court found that as the Lawler data came in, the Project did not keep FHWA fully informed but gave it only some of the information. Id. at 1373. Similarly, the attribution to FHWA, in item (B), of full knowledge and scheming in the early summer of 1980 is contraindicated by the court’s findings suggesting that in fact Lawler and the Project first gave FHWA the complete picture on August 20. Item (C) so suggests, as do other portions of the court’s opinion: The evidence about the August 20 meeting demonstrates that both the Project and [Lawler] were fully aware that the proposed landfill would have an environmental impact of substantial significance. ... All of this was communicated to the FHWA. Id. at 1376; see also id. at 1372-76. We have somewhat the same problem with the court’s conclusion, adverted to in (B) above, that the Corps colluded with FHWA and the Project to avoid publication of an informative SEIS with respect to the fisheries issues. See also id. at 1381. In fact the court found that the Corps division engineer had urged that the Lawler report be filed as a supplement to the FEIS. 536 F.Supp. at 1249. The record contains a letter from the division engineer to FHWA making this recommendation and further urging that the Lawler report be circulated to concerned federal agencies and interested public parties. These facts seem inconsistent with the imputed desire to conceal the Lawler report. Moreover, although the court found that the Corps should have known that the Lawler report itself understated the quantities of fish in the interpier area revealed by the Lawler sampling, August 4 Opinion at 10, it also found that the Corps was not provided with all of the Lawler raw data, 541 F.Supp. at 1374; see also id. at 1378, and hence the Corps may not have known that the Lawler report was understated. Surely the Corps should have learned that fact, because under the Clean Water Act it should have been making its own investigation; but it is not clear that the Corps’s acceptance of the Lawler report was consciously bad faith conduct. Finally, the court seemed critical of the fact that the Corps initiated discussions of mitigation concepts. The court appears to have viewed all mitigation discussions with suspicion, implying that they constituted a devious attempt to avoid disclosures. It does not appear to have made any allowance for the fact that 33 C.F.R. § 320.4(c) expressly requires the Corps to consider and press for mitigation measures. See note 8 supra. With respect to items (C), (D), and (F) above, it seems plain that these are findings of bad faith only on the part of the Project and its employees, not of FHWA. These show that the Project officials knew all along the significance of the Lawler data, that the Project officials knew those data were not fully disclosed in the Lawler report, and that the Project officials provided FHWA with the fraudulent characterization of the FEIS that was used to dissuade the Corps from issuing a SEIS. The role of FHWA in these endeavors appears to have been largely passive. As to item (E), describing FHWA’s October 9, 1980 letter to the Corps misrepresenting the conclusion of the FEIS on the presence of fish in the interpier area, while obviously FHWA should have taken care to avoid such a blatant misrepresentation, it appears that it may simply have relied on the Project and Sydec, as it had in the past, to supply it with information and documents to be forwarded to the Corps. In our view the record amply supports the district court’s findings of bad faith on the part of the Project and its officials. We are also inclined to agree that FHWA became fully aware on August 20, 1980, that the Lawler data provided substantial ground for believing that the Westway landfill would have a significant impact on fisheries and that FHWA thereafter proceeded in bad faith, at least in failing to disclose pertinent data to the Corps. We also concur in the district court’s inference that the Project’s machinations to avoid disclosure of the Lawler data suggested that in the Project’s view the data were highly significant rather than insignificant, and we agree that the same inference is permissible as to FHWA’s assessment of the data in light of its joining ranks with the Project in preventing disclosure. Yet we are troubled by the court’s findings of bad faith on the part of the Corps and of pre-August 20,1980 bad faith on the part of FHWA. Some of these, as discussed above, are weakened by other findings that subvert the factual premises of the conclusion of bad faith. In other instances, the court has characterized as bad faith what may well have been the results of incompetence, lack of diligence, or a different evaluation of the data. For example, in its August 4 Opinion the court listed as an instance of concealment the district engineer’s August and September 1979 reports which reiterated the FEIS and Water Report theses of biological impoverishment and concluded that the loss of the interpier area would have no significant effect on fish resources. The court stated that these reports made “findings of fact on the subject of fisheries ... based upon information known to be obsolete and incorrect.” August 4 Opinion at 8. This presumably refers to the finding in the court’s March 31 opinion that “preliminary data” from the Lawler study “indicating the presence of significant marine life in the interpier area” had already been given to Monte informally, and hence that the August and September 1979 reports did not represent the facts as they existed. 536 F.Supp. at 1243. Yet the court also found that the periods of greatest abundance of striped bass — the focal point of the court’s criticisms — were April 1979, and October 1979 through April 1980. Id. at 1245. Thus, by the time of the August and September 1979 reports, the vast bulk of the most important data had not yet been gathered. Hindsight reveals the significance of the data then on hand; greater competence might have led to a different evaluation of that data at the time; and greater diligence and prudence would surely have dictated waiting for further data. But it is not clear to us that the decisions that were made at the district engineer’s office were made in subjective bad faith. In expressing these reservations, we do not mean to suggest that any of the district court’s imputations of bad faith is clearly wrong. Rather, we believe that where imputations of bad faith are to be the basis for such intrusive judicial control over administrative reconsideration of matters committed to agency discretion, the conclusions of bad faith should be consistently supported by the court’s subsidiary findings, and the findings should present a clear and convincing picture of such pervasive bad faith as to suggest that, absent judicial supervision, the agency probably will not obey an injunction detailing its obligations. Instead of presenting a panorama of unremitting bad faith conduct, the record suggests to us that virtually all of the early derelictions of FHWA and the Corps, as well as some of their later failures, may to a great extent be attributable to a willingness on the part of the agencies to sit back and allow others to do work entrusted to them, without bestirring themselves to develop accurate data. The Corps repeatedly shunted off fisheries questions to FHWA and NYSDOT; FHWA similarly seemed content to quote representations given to it by the Project. The April and July Judgments seek to put an end to such unauthorized and unwarranted reliance on the interested party, NYSDOT, to perform objective evaluations for which FHWA and the Corps are responsible. The injunctions require those agencies to make their own independent evaluations, and it does not seem improbable that the injunctions, together with the record-keeping requirements that have been imposed, will have the desired effect of ensuring that the agencies will carry out the responsibilities entrusted to them by law. The fact that officials of the agencies have in the past been willing to ignore the statutory requirements does not make it probable that they will risk being held in contempt for failing to obey the court’s injunctive orders. It is of course possible to envision a recurrence of the bad faith performance of the agencies. But, as the Supreme Court pointed out in FCC v. Pottsville Broadcasting Co., supra, [i]t is always easy to conjure up extreme and even oppressive possibilities in the exertion of authority. But courts are not charged with general guardianship against all potential mischief in the complicated tasks of government. The present case makes timely the reminder that “legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, K. & T. Ry. Co. v. May, 194 U.S. 267, 270 [24 S.Ct. 638, 639, 48 L.Ed. 971]. Congress which creates and sustains these agencies must be trusted to correct whatever defects experience may reveal. Interference by the courts is not conducive to the development of habits of responsibility in administrative agencies. 309 U.S. at 146, 60 S.Ct. at 443. In sum, we are persuaded by (1) the fact that the court may review only whether the proper NEPA procedures were followed and whether a reasoned record for a decision has been created, (2) the highly intrusive nature of the mandate given the special master, (3) the entry of injunctive provisions compelling the federal agencies themselves to make the required investigations and analyses, (4) the entry of an unusual, but appropriate, order requiring record-keeping with respect to all aspects of the agencies’ reconsiderations on remand, and (5) the absence of any prior contemptuous behavior of these agencies toward orders of the court, that the court should not have appointed a special master. We therefore vacate that portion of the July Judgment. In so doing, we do not foreclose the possibility that such extraordinary relief may become permissible and appropriate if FHWA or the Corps violates the terms of the injunctions entered by the court. IV. CONCLUSION We affirm the April and July Judgments to the extent that they (i) held FHWA to have violated NEPA, (2) held the Corps to have violated NEPA and the Clean Water Act, (3) enjoined further action with respect to Hudson River landfill unless and until FHWA and the Corps reconsider the matter of impact on fisheries in accordance with NEPA and the Clean Water Act, (4) required FHWA, the Corps, and others to maintain records in connection with their reconsiderations of fisheries impacts, and (5), except as indicated hereafter, granted relief to implement the foregoing. We reverse the April Judgment to the extent that it upheld plaintiffs’ claim that the Corps had violated the Rivers and Harbors Act. We vacate so much of the April and July Judgments as required that the SEIS include updated information on issues other than fisheries impacts and prohibited FHWA and the Corps from acting as joint lead agencies in the preparation of a SEIS. Finally, we vacate so much of the July Judgment as provided for the appointment of a special master. Plaintiffs may recover their costs from NYSDOT. . Section 102(2)(C), 42 U.S.C. § 4332(2)(C) provides as follows: (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. . The Wildlife Service comment questioned the sufficiency of the statement regarding the impact of the project on parklands, and stated that it felt the outboard alternative would have a positive impact on land-dwelling wildlife in Manhattan that should be noted in the EIS. Air pollution was the primary concern of EPA, but that agency was troubled also by other aspects of the project including relocation of sewers, which would have impact on both navigation and fisheries. EPA stated that the DEIS “discussion of the project’s impact on water resources is deficient such that an opinion as to the project’s impact in this respect cannot be rendered.” . It also evaluated the possibility of a trade-in of interstate highway funds for mass transit funds, an option that had become available as a result of § 103(e)(4) of the Federal Highway Act of 1973, 23 U.S.C. § 103(e)(4) (1976). . Section 404 of the Clean Water Act, 33 U.S.C. § 1344 provides, in pertinent part, as follows: § 1344. Permits for dredged or fill material (a) Discharge into navigable waters at specified disposal sites The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection. (b) Specification for disposal sites Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary of the Army (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 1343(c) of this title, and (2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage. (c) Denial or restriction of use of defined areas as disposal sites The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specifica- tion) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection. (d) Definition The term “Secretary” as used in this section means the Secretary of the Army, acting through the Chief of Engineers. (m) Comments on permit applications or proposed general permits by Secretary of the Interior acting through Director of United States Fish and Wildlife Service Not later than the ninetieth day after the date on which the Secretary notifies the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service that (1) an application for a permit under subsection (a) of this section has been received by the Secretary, or (2) the Secretary proposes to issue a general permit under subsection (e) of this section, the Secretary of Interior, acting through the Director of the United States Fish and Wildlife Service, shall submit any comments with respect to such application or such proposed general permit in writing to the Secretary. (q) Minimization of duplication, needless paperwork, and delays in issuance; agreements Not later than the one-hundred-eightieth day after December 27, 1977, the Secretary shall enter into agreements with the Administrator, the Secretaries of the Departments of Agriculture, Commerce, Interior, and Transportation, and the heads of other appropriate Federal agencies to minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits under this section. Such agreements shall be developed to assure that, to the maximum extent practicable, a decision with respect to an application for a permit under subsection (a) of this section will be made not later than the ninetieth day after the date the notice of such application is published under subsection (a) of this section. . Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403 (1976), provided as follows; § 403. Obstruction of navigable waters generally; wharves, piers, etc.; excavations and filling in The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . 33 C.F.R. § 320.4(a) provides as follows: (a) Public interest review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impact of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of the general balancing process (e.g., see 33 CFR 209.400, Guidelines for Assessment of Economic, Social and Environmental Effects .of Civil Works Projects). That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered; among those are conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and, in general, the needs and welfare of the people. No permit will be granted unless its issuance is found to be in the public interest. (2) The following general criteria will be considered in the evaluation of every application: (i) The relative extent of the public and private need for the proposed structure or work; (ii) The desirability of using appropriate alternative locations and methods to accomplish the objective of the proposed structure or work; (iii) The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work may have on the public and private uses to which the area is suited; and (iv) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated structures or work in the general area. See also notes 8 and 9 infra. . 40 C.F.R. § 1500.7(b) set out guidelines to be followed where more'than one federal agency' was involved: (b) Where more than one agency (1) directly sponsors an action, or is directly involved in an action through funding, licenses, or permits, or (2) is involved in a group of actions directly related to each other because of their functional interdependence and geographical proximity, consideration should be given to preparing one statement for all the Federal actions involved (see § 1500.6(d)(1)). Agencies in such cases should consider the possibility of joint preparation of a statement by all agencies concerned, or designation of a single “lead agency” to assume supervisory responsibility for preparation of the statement. Where a lead agency prepares the statement, the other agencies involved should provide assistance with respect to their areas of jurisdiction and expertise. In either case, the statement should contain an environmental assessment of the full range of Federal actions involved, should reflect the views of all participating agencies, and should be prepared before major or irreversible actions have been taken by any of the participating agencies. Factors relevant in determining an appropriate lead agency include the time sequence in which the agencies become involved, the magnitude of their respective involvement, and their relative expertise with respect to the project’s environmental effects. As necessary, the Council [on Environmental Quality, see note 22 infra] will assist in resolving questions of responsibility for statement preparation in the case of mul-ti-agency actions. Federal Regional Councils, agencies and the public are encouraged to bring to the attention of the Council and other relevant agencies appropriate situations where a geographic or regionally focused statement would be desirable because of the cumulative environmental effects likely to result from multi-agency actions in the area. . 33 C.F.R. § 320.4(c) provides as follows: (c) Fish and wildlife. In accordance with the Fish and Wildlife Coordination Act (§ 320.3(e) above) Corps of Engineers officials will consult with the Regional Director, U.S. Fish and Wildlife Service, the Regional Director, National Marine Fisheries Service, and the head of the agency responsible for fish and wildlife for the state in which the work is to be performed, with a view to the conservation of wildlife resources by prevention of their direct and indirect loss and damage due to the activity proposed in a permit application. They will give great weight to these views on fish and wildlife considerations in evaluating the application. The applicant will be urged to modify his proposal to eliminate or mitigate any damage to such resources, and in appropriate cases the permit may be conditioned to accomplish this purpose. . 33 C.F.R. § 323.5 provides in pertinent part as follows: (a) EPA Guidelines. Applications for permits for the discharge of dredged or fill material into waters of the United States will be reviewed in accordance with guidelines promulgated by the Administrator, EPA, under authority of Section 404(b) of the Federal Water Pollution Control Act. (See 40 CFR Part 230). If the EPA guidelines alone prohibit the designation of a proposed disposal site, the economic impact on navigation and anchorage of the failure to authorize the use of the proposed disposal site will also be considered in evaluating whether or not the proposed discharge is in the public interest. (b) Coordination with EPA. Prior to actual issuance of permits for the discharge of dredged or fill material in waters of the United States, Corps of Engineers officials will advise appropriate Regional Administrators, EPA, of the intent to issue permits to which EPA has objected, recommended conditions, or for which significant changes are proposed. If the Regional Administrator advises, within fifteen days of the advice of the intent to issue, that he objects to the issuance of the permits, the case will be forwarded to the Chief of Engineers in accordance with 33 CFR 325.11 for further coordination with the Administrator, EPA, and decision. The report forwarding the case will contain an analysis of the economic impact on navigation and anchorage that would occur by failing to authorize the use of a proposed disposal site, and whether there are other economically feasible methods or sites available other than those to which the Regional Administrator objects. . 33 C.F.R. § 325.8 provides in pertinent part as follows: (b) District Engineer’s Authority. .... District Engineers may issue permits over an unresolved objection of another Federal agency if that agency indicates to the District Engineer that it does not desire to refer the application to a higher level of authority for review. (c) Division Engineer’s Authority. .... The Division Engineer shall not proceed with the issuance of a permit if, within 15 days after the date of this notice of intent to issue a permit an authorized representative of [another] Federal agency indicates to the Division Engineer in writing that he wishes to bring his concerns to the departmental level and has departmental concurrence to do so. In such cases, the proposed permit will be forwarded to higher authority for resolution. (d) Referral to the Chief of Engineers. Division Engineers will refer to the Chief of Engineers the following cases: (1) When it is proposed to issue a permit and there are unresolved objections from another Federal agency which must be handled under special procedures specified in statutes or Memoranda of Understanding which thereby preclude final resolution by the Division Engineer .... . See note 8 supra. . As discussed in Part III.C.3. infra, although the final Lawler report revealed a far greater number and variety of fish in the interpier ^rea than suggested by the FEIS, the district court found that in fact the report did not disclose as great an abundance of fish as the underlying Lawler data revealed. 536 F.Supp. at 1247-48. . In December 1980, a full-scale “Reevaluation” of the FEIS had been commenced in accordance with FHWA regulations. As with previous Westway documents, the fisheries section of the Reevaluation was drafted by the Project, and the Reevaluation, issued in August 1981, concluded that the Lawler study had provided no reason to alter the conclusion of the FEIS that the landfill would have little effect on the productivity of the Hudson River. . Westway was also the subject of two earlier actions. In 1978, Sierra Club had commenced a suit challenging the Corps district engineer’s rejection of its request for a supplemental EIS; that suit was dismissed as premature. Sierra Club v. United States Army Corps of Engineers, 481 F.Supp. 397 (S.D.N.Y.1979). In 1974, a consumer group had commenced an action seeking to bar Westway on the ground that the available federal funds should be used for mass transit rather than a highway. Action for Rational Transit v. West Side Highway Project, 517 F.Supp. 1342 (S.D.N.Y.1981) (“ART” litigation). The action lay dormant until the present suit was instituted. Thereafter the ART plaintiffs moved for a preliminary injunction against the State’s acquisition of Westway rights-of-way from the City. Their motion was denied in July 1981, and their complaint was dismissed in the court’s March 31, 1982 decision in the present case, except to the extent that an injunction might be issued in connection with the fisheries issues. 536 F.Supp. at 1232-33. That decision was affirmed by this Court. See Action for Rational Transit v. West Side Highway Project, 699 F.2d 614 (2d Cir.1983). . At the same time the court granted plaintiffs’ motion for a preliminary injunction against FHWA’s payment to NYSDOT with respect to the State’s acquisition of the Westway right-of-way from New York City. This injunction became a permanent injunction following trial of plaintiffs’ claims against the new defendants and was the subject of an appeal by the City (which had intervened in the action at the time of preliminary injunction), NYSDOT, and FHWA. That appeal was consolidated with the present appeals for argument and thereafter was severed for publication of our decision reversing the injunction. See Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir.1982). . The July Judgment provided in part as follows: 3. The Special Master will have the duty and authority to perform the following acts: (a) Require submission of detailed plans from the FHWA and the Corps for their compliance with the Court’s orders and the applicable law; consider such plans and the comments and objections of the parties thereon; and report findings and recommendations to the Court; (b) Take such action as he deems appropriate to permit the parties to be informed regarding compliance by the FHWA and the Corps with the Court’s orders, with the plans to implement those orders, and with the applicable law, including without limitation requiring the submission of compliance reports; consider relevant comments and objections of the parties; hear claims of noncompliance; and report findings and recommendations to the Court, such reports to be made no less frequently than every sixty days; (c) Require submission of any proposed draft or final EIS prior to its submission to the Court; consider relevant comments and objections of the parties; hear claims of noncompliance with the Court’s orders or the applicable law; and report findings and recommendations to the Court. 4. The Special Master, for purposes of discharging his duties under this order, shall have all powers granted in Fed.R.Civ.P. 53. He shall have the power to do all acts and take all measures necessary or proper for the efficient performance of his duties, including without limitation the power to: (a) Conduct meetings with counsel and personnel of the FHWA, the Corps of Engineers and other parties subject to the orders of the Court, on such notice as may be appropriate; (b) Require the FHWA, the Corps and other parties subject to the orders of the Court to produce documents for inspection and copying; (c) Take and permit the taking of depositions and hold hearings at which testimony is taken and other evidence is received; (d) Require the submission of reports on matters relevant to the purposes of this reference and require answers under oath to written interrogatories; (e) Have proceedings transcribed by an official federal court reporter, as deemed necessary. . The federal defendants have taken the position that they disagree with the district court’s findings concerning their noncompliance with the statutes but that, given their view that the public interest would best be served by a prompt reconsideration of Westway, they would limit their appellate challenges to certain aspects of the relief ordered. . In evaluating a claim that an EIS fails to contain sufficient information to satisfy NEPA, the court should apply a “rule of reason,” under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives. County of Suffolk, supra, 562 F.2d at 1375. . Section 9 of the Rivers and Harbors Act, 33 U.S.C. § 401 (1976), provides as follows: § 401. Construction of bridges, causeways, dams or dikes generally It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, road-stead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of the Army. . In Cort v. Ash, the Supreme Court identified four factors relevant in determining whether a private action may be maintained to enforce a statute that does not expressly provide for private enforcement. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J.I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. at 2006 (Harlan, J., concurring in judgment). 422 U.S. at 78, 95 S.Ct. at 2088. California v. Sierra Club, supra, further refined the analysis, observing that when consideration of the first two Cort v. Ash factors fails to reveal any congressional intent to create a private right of action, the final two factors need not be reached. 451 U.S. at 298, 101 S.Ct. at 1781. . The necessity of filing a SEIS in this situation was, in fact, at one point, explicitly recognized in the Corps regulations. Those regulations provided as follows: If the final environmental statement previously filed clearly failed to comply with the requirements of NEPA: e.g. .. . failed to disclose the environmental impacts of the proposed action ... a revised environmental statement ... must be prepared and filed with CEQ. 33 C.F.R. § 209.410(g)(1) (1977). The withdrawal of this regulation does not affect the court’s power to order such a SEIS to ensure that NEPA’s goal of a reasoned decision is effectuated. . The CEQ was created by NEPA and is charged with responsibility to review, appraise, and make recommendations concerning federal programs and activities in light of NEPA. 42 U.S.C. § 4344(3). “CEQ’s interpretation of NEPA is entitled to substantial deference.” Andrus v. Sierra Club, supra, 442 U.S. at 358, 99 S.Ct. at 2341. . 40 C.F.R. § 1502.9(c)(1) provides as follows: (c) Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements 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. . 33 C.F.R. § 230.11(b) (1981) provides as follows: (b) Supplements. A Supplement to the draft of final EIS on file will be prepared whenever significant impacts resulting from changes in the proposed plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the recommended plan or proposed action as discussed in 40 CFR 1502.9(c). . It may be that the court will conclude that such an order is, in whole or in part, unnecessary. In 1981 NYSDOT prepared, under FHWA supervision, an analysis of the January 1977 EIS which was a comprehensive reevaluation of all aspects of Westway in light of 1981 conditions and which concluded that a SEIS was not warranted. The reevaluation’s discussion of nonfisheries issues was neither attacked by plaintiffs nor found wanting by the court. See 541 F.Supp. at 1381-82. . A Senate Report described FHWA’s reaction to our decisions as “an almost total halt to all federally funded highway projects in the three states in the Second Circuit.” S.Rep. No. 52, supra, at 2, 1975 U.S.Code Cong. & Ad.News 859, at 860. . Even where such reliance is authorized, the section requires that the responsible federal official participate and provide guidance in the preparation of the EIS, § 102(2)(D)(ii), 42 U.S.C. § 4332(2)(D)(ii), and must independently evaluate the EIS, § 102(2)(D)(iii), 42 U.S.C. § 4332(2)(D)(iii). See also 40 C.F.R. § 1500.-7(c), which provided in 1974 as follows: (c) Where an agency relies on an applicant to submit initial environmental information, the agency should assist the applicant by outlining the types of information required. In all cases, the agency should make its own evaluation of the environmental issues and take responsibility for the scope and content of draft and final environmental statements. . In 1977 the Corps’s own regulations required it to take responsibility for the content of the EIS: When a non-Federal agency cooperates with the Corps of Engineers by construction or other participation, a final environmental statement will be prepared by the District Engineer and filed with CEQ prior to advertisement of the work. The non-Federal agency may furnish environmental data; however, the District Engineer will be responsible for independent verification and use of the data and for the environmental statement. 33 C.F.R. § 209.410(e)(8) (1977). . Subsequent to the Corps announcement that it was following a “lead agency” procedure, the CEQ- promulgated regulations allowing one agency to “adopt” a “Federal . .. environmental impact statement” of another, 40 C.F.R. § 1506.3(a) (promulgated November 1978) (emphasis added). . According to the motion of FHWA and the Corps in this Court for a stay with respect to the special master, the first order of the special master directed the agencies to submit a “compliance report” and to draft “an implementation plan” setting forth in detail the manner in which “the Corps and FHWA propose to comply in the future with the Court’s judgments and the Applicable Law.” More specifically, the Special Master ordered the agencies to disclose all procedural steps they planned to take and why such action was justified; to identify all portions of the EIS for which supplementation is proposed; to describe all steps to develop information on topics the district court ordered be examined in the supplement; to describe all steps to evaluate existing fisheries data and all plans to determine whether further fisheries studies should be conducted; to set forth plans for involvement of other federal agencies and of consultants employed by NYS-DOT; to identify plans for the respective roles of the Corps and FHWA; ... to identify all agency personnel and consultants to be employed; and to disclose target dates for all actions. . At trial FHWA took the position that it had viewed the Lawler data as revealing an unexpected number of fish in the interpier area, but that it did not believe the landfill would have a significant impact since the fish could spend the winter on the New Jersey side of the Hudson. . Monte testified at the First Trial (she did not testify at the Second Trial) that at the time she drafted the reports in question it was her view, based in part on the Water Report and in part on another study she had reviewed in connection with a different landfill permit application, that the interpier area was impoverished with regard to both the variety and the quantity of species normally to be found in a littoral area. Despite the court’s later criticisms of these reports, we note that at the close of the First Trial the court had gone out of its way to commend all of the witnesses for their candor: THE COURT: I want to say I think there is an honest conflict and I think the witnesses were admirable. They were candid and expressed candid views and I think all the witnesses from beginning to end, the Corps and everybody else, were just remarkably candid. (First Trial Tr. at 1496.)

Buttrey v. United States

RANDALL, Circuit Judge: This is an appeal from a district court judgment rejecting the claim of plaintiffs-appellants John Buttrey and John Buttrey Developments, Inc. that the United States Army Corps of Engineers had improperly denied Buttrey’s application for a dredge and fill permit under section 404 of the Clean Water Act. 33 U.S.C. § 1344 (Supp. IV 1980). We conclude that the procedures afforded Buttrey in the determination of his permit application violated neither his statutory nor his constitutional rights and that the determination itself was neither arbitrary nor capricious. We therefore affirm the decision of the district court. I. THE FACTS AND PROCEEDINGS BELOW. John Buttrey is a land developer who builds residential homes. In November, 1978, he applied to the Mobile, Alabama, district office of the Corps of Engineers for a permit to channelize a half-mile long portion of a small, slow running stream known as Gum Bayou. The bayou passes near Slidell, Louisiana, before flowing into the West Pearl River. Buttrey accompanied his application with a letter from the Louisiana Stream Control Commission, stating that, having examined a drawing submitted by Buttrey, it was “of the opinion that water quality standards of the State of Louisiana will not be violated provided turbidity during dredging in public waters is kept to a practicable minimum.” He also included comments from the St. Tammany Parish Mosquito Abatement District No. 2. The District stated that Buttrey’s project would help eliminate potential mosquito breeding areas, provided only that adequate drainage was achieved as per the proposal to avoid the possibility of creating any new breeding sites. The Corps of Engineers issued a formal public notice of the proposed dredge and fill operation on February 2, 1979. This notice was distributed to all known interested persons to assist in developing facts on which a decision could be based. In the ensuing months, the Corps received numerous comments opposing the issuance of the permit: letters came from the Fish and Wildlife Service of the United States Department of the Interior, the United States Environmental Protection Agency and the National Marine Fisheries Service of the United States Department of Commerce, and from numerous private organizations and individuals. The comments all tended to raise the same objections. The proposed project, they claimed, would destroy natural drainage and sewage treatment capacity, replace a habitat and nursery ground for wildlife with residential homes, perhaps irrevocably damage an aesthetically pleasing wetland area, and, finally, increase the risk of flooding, both downstream and in Buttrey’s neighboring Magnolia Forest housing development. The Corps forwarded copies of all of the comments to Buttrey for review and response. Buttrey requested and received a six-month extension of time for filing his answer. On September 28, 1979, he submitted: (1) a memorandum of law supporting the permit request; (2) an environmental analysis with comments prepared by Dr. Alfred Smalley, Professor of Biology at Tulane University; (3) an engineering discussion with comments prepared by Ivan Borgen, a consulting engineer; (4) a letter supporting the application submitted by the Magnolia Forest Homeowners Association; (5) three other letters, also supporting the application, from downstream property owners; and (6) an aerial photograph of the area. With respect to “any objection which the Corps may feel to be of such a nature as to warrant denial of the permit,” Buttrey requested: (1) that he be notified of the specific objection involved, and that he be permitted to provide the Corps a full and detailed response; (2) that he be granted a conference with the Corps in order to resolve any outstanding objections that could not be resolved on the basis of the material furnished; and (3) that, should there exist any objection that might preclude issuance of the permit, he be granted an adversary hearing, and an opportunity to cross-examine witnesses. The responsible official, District Engineer Col. Ryan, responded that Corps regulations precluded the possibility of a full adversary hearing, but that he would be happy to meet with Buttrey informally. Reserving his right to demand a full hearing, Buttrey accepted the invitation, and met with Col. Ryan on February 8, 1980. The parties remained unable to resolve their differences. On April 2, 1980, the Corps issued an “Environmental Assessment” and an “Evaluation of the Effects of the Discharge of Dredged or Fill Material Into Waters of the U. S. Using the Section 404(b) Guidelines,” and denied Buttrey’s permit application. After extensively reviewing the Corps’ evaluation process, Col. Ryan made the following “evaluation and findings”: Based upon review of the application, conducting an environmental assessment, preparation of a 404(b) evaluation, and consideration of all comments by other agencies and the public, and after weighing all known factors involved in the proposed action, I find in concurrence with national policy, statutes and administrative directives, when the total adverse effects of the proposal are weighed against the benefit to the using public, the public interest would best be served by denial of the requested permit. The Corps noted particularly that “the environmental effects associated with implementation of the proposal are significant and adverse.” One month later, having exhausted the procedures provided by the Corps of Engineers, Buttrey filed with the United States District Court for the Eastern District of Louisiana an action for damages and declaratory and injunctive relief. Buttrey’s complaint asserted: (1) that the Corps had no jurisdiction over the project; (2) that even assuming the Corps had jurisdiction, its own regulations exempted the proposed project from regulation under section 404; and (3) that, as applied in this case, the Clean Water Act and the regulations thereunder were unconstitutional. After a hearing on August 21, 1980, and upon consideration of the Corps’ motion for a protective order and Buttrey’s memorandum in opposition, the district court authorized the production of certain documents and the taking of depositions from Col. Ryan and Donald Conlon (Chief of the Regulatory Functions Branch). Both Buttrey and the Corps submitted motions for summary judgment and memoranda in support of their motions, and, following a hearing on the cross-motions, both parties submitted post-hearing memoranda “on the issue of whether an adjudicatory hearing is required when . . . the jurisdiction of the Corps ... is challenged.” On April 1, 1981, the district court issued its opinion denying Buttrey’s motion for summary judgment and granting summary judgment for the Corps. The district court held: (1) where the Corps’ regulatory jurisdiction over a proposed “dredge and fill” project is challenged, an adjudicatory hearing is not required for the purpose of determining the propriety of the jurisdictional claim; (2) the Corps has jurisdiction to require permit issuance for the project in question; (3) the procedures employed by the Corps in the processing of plaintiffs’ permit were not unconstitutional; (4) on the basis of the administrative record, the permit was properly denied; and (5) plaintiff’s claim for damages, allegedly due to either an unconstitutional taking of property without compensation or, alternatively, for the delay plaintiff has incurred as a result of the Corps’ permitting process, is denied. Judgment was entered accordingly, and Buttrey now appeals. On appeal, Buttrey contends that he was denied his constitutional and statutory rights because the Corps refused to grant him a trial-type hearing, that the administrative record was incomplete, that the procedures employed by the Corps in determining that it had jurisdiction were improper, and that the permit was arbitrarily and capriciously denied. II. WHAT KIND OF HEARING? Buttrey’s claim that he was wrongfully denied a full trial-type hearing is both statutory and constitutional. The statutory claim is based on a reading of the Administrative Procedure Act, 5 U.S.C. § 554(a) (1976), together with section 404(a) of what is now called the Clean Water Act, 33 U.S.C. § 1344(a) (Supp. IV 1980). The constitutional claim is based on the due process clause. Because the statutory argument is the more straightforward, we shall address it first. A. The Administrative Procedure Act. The formal trial-type hearing procedures that Buttrey wants are set out in sections 7 and 8 of the Administrative Procedure Act, 5 U.S.C. §§ 556-557 (1976), and are triggered by language at the beginning of section 5: “This section applies ... in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . .. . ” 5 U.S.C. § 554(a) (1976). Since in the present case the Corps has acted under the authority of section 404 of the Clean Water Act, the determinative issue is whether section 404 “require[sj” disputes to be “determined on the record after opportunity for an agency hearing.” Buttrey claims that it does, and the government claims that it does not. We agree with the government. Section 404 seems relatively simple. It says, quite plainly, that the Corps of Engineers “may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (Supp. IV 1980). Buttrey argues that “public hearings” means the trial-type hearing provided for in the APA. There are, however, many different kinds of “hearing,” and resolution of the issue must turn on “the substantive nature of the hearing Congress intended to provide.” Seacost Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978) (footnote omitted). Three other circuits have construed virtually identical language in section 402 of the Clean Water Act, 33 U.S.C. § 1342(a)(1) (1976) (“after opportunity for public hearing”), to require a trial-type hearing. Seacoast, supra; Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253 (9th Cir. 1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977). The question, then, is whether section 402 can be distinguished from section 404, despite the similarity of language and despite the fact that both sections are part of the same statutory scheme. We begin with the observation that none of the three opinions construing section 402 held that the phrase found in both sections — “after opportunity for public hearing[s]” — was so clear that there was no need to look behind it for other indications of congressional intent. See Costle v. Pacific Legal Foundation, 445 U.S. 198, 218, 100 S.Ct. 1095, 1107, 63 L.Ed.2d 329 (1980) (commenting that statute’s “opportunity for public hearing” requirement is “rather amorphous”). It is, moreover, very possible “for a term to have different meanings, even in the same statute.” Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922, 927 (D.C.Cir.1980) (footnote omitted), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981). We therefore look to the legislative history for help in determining what Congress meant when it called for “hearings” in section 404. This is one of those rare instances when a statute’s history leaves no room for doubt. Congress did not intend that the “public hearings” called for in section 404 be trial-type hearings on the record. When confronted with a choice between a House version of section 404, which invested permit authority in the Corps of Engineers, and a Senate version, which invested authority in the EPA, Congress consciously chose the House version. The Corps of Engineers had apparently been using its simplified procedures to issue dredge and fill permits (under a related statute) for many years. See Rivers and Harbors Appropriation Act of 1899, § 10, 33 U.S.C. § 403 (1976 & Supp. IV 1980). When Senator Muskie presented the Conference Committee report on the Senate floor, he explained: The Conferees were uniquely aware of the process by which the dredge and fill permits are presently handled and did not wish to create a burdensome bureaucracy in light of the fact that a system to issue permits already existed. 118 Cong.Rec. 33,699 (1972) (prepared remarks of Sen. Muskie, presented on behalf of the Conference Committee but not delivered orally). Congress consciously chose to use the simplified permit procedures that the Corps had developed in administering its existing dredge and fill permit program. Congress did not intend to burden the implementation of section 404 with a trial-type hearing requirement, and we decline to do so today. See, e.g., Nofelco Realty Corp. v. United States, 521 F.Supp. 458 (S.D.N.Y.1981) (also construing section 404 not to require trial-type hearings); cf. United States v. Independent Bulk Transport, Inc., 480 F.Supp. 474, 480 (S.D.N.Y.1979) (“The decision by Congress to confer authority for enforcement of section 1321(b)(6) upon the Coast Guard [rather than the EPA] reflects a desire to dispense with procedural intricacies.”). The subsequent history of the Clean Water Act reinforces our conclusion that section 404 does not require trial-type hearings. Congress amended section 404 and several other provisions of the Act in 1977, but again chose to leave the Corps’ existing permit granting system intact. The Senate and House reports on the amendments both impliedly approved the Corps’ section 404 regulations. S.Rep.No. 370, 95th Cong., 1st Sess. 80, reprinted in [1977] U.S.Code Cong. & Ad.News 4326, 4405; H.R.Conf.Rep.No. 830, 95th Cong., 1st Sess. 105, reprinted in [1977] U.S.Code Cong. & Ad.News 4424, 4480. Their only overriding concern about the Corps’ section 404 procedures seems to have been for eliminating delay and red tape in processing applications. See, e.g., S.Rep.No. 370, at 80, reprint at 4405 (section entitled “Unnecessary regulation and red-tape”); H.R.Conf.Rep.No. 830, at 104, reprint at 4479 (recommended procedures “[t]o expedite the consideration of permit applications, and to avoid unnecessary delay”). Indeed, we note that advocates on the “industry” side of the water pollution controversy complain bitterly about the Corps’ “complex and unnecessary permit processing procedures.” Parish & Morgan, History, Practice and Emerging Problems of Wetlands Regulation: Reconsidering Section 404 of the Clean Water Act, 17 Land & Water L.Rev. 43, 78 (1982). In short, requiring trial-type hearings would do violence to the obvious congressional purpose of making section 404 processing procedures as simple as possible. The “public hearings” language in section 404 was, in fact, written into the statute to protect the public, not permit applicants. As Professor Davis has pointed out, “when many are affected, [the term “public hearing”] usually means a speech-making hearing rather than a [trial-type] hearing with a determination on the record.” 2 K. Davis, Administrative Law Treatise § 12:7, at 434 (2d ed. 1979). This circuit has already decided that the “public hearings” referred to in the Corps of Engineers’ dredge and fill permit regulations means the kind of “speech-making” hearing described by Professor Davis: “[I]f sufficient public interest is shown in [a] project, then the District Engineer of the Corps is authorized to conduct a public, informal hearing at which both proponents and opponents of the project are allowed to be heard.” Taylor v. District Engineer, 567 F.2d 1332, 1338 (5th Cir. 1978) (construing 33 C.F.R. § 209.120(g)(4) (superseded 1977)). See also Sierra Club v. Alexander, 484 F.Supp. 455, 470-71 (N.D.N.Y.), aff’d mem., 633 F.2d 206 (2d Cir. 1980) (reason for public hearings by federal agencies is to elicit “input” from the public to assist agency in determining whether a proposed act is in the public interest). The current regulations are essentially the same as those construed in Taylor, see 33 C.F.R. § 327.8 (1981), and foreclose our reaching any conclusion different from the one reached in Taylor: Public hearing means a public proceeding conducted for the purpose of acquiring information or evidence which will be considered in evaluating a proposed Department of the Army permit action, or Federal project, and which affords to the public the opportunity to present their views, opinions, and information on such permit actions or Federal projects. 33 C.F.R. § 327.3(a) (1981). It therefore follows that “public hearing[s]” means exactly what the regulation says it means, and that Buttrey is thus not entitled under section 404 of the Clean Water Act and section 5 of the Administrative Procedure Act to insist on a trial-type oral hearing. B. The Due Process Clause. Buttrey’s argument that he is nonetheless entitled to a trial-type hearing under the due process clause, U.S.Const. amend. 5, presents a much more difficult issue. While the government claims that Buttrey’s dispute with the Corps is mostly legal and concerns only “legislative” facts and policy, Buttrey has continued to insist throughout these proceedings that the case turns entirely on precisely those kinds of narrowly defined questions of “adjudicative” fact that entitle an administrative litigant to an oral, trial-type hearing on the record. We agree with the government. Although the precedents holding that a party who directly challenges an agency’s material factual determinations may nevertheless be denied a trial-type hearing have generally been written in the most limiting language possible, we find that under the facts of this case, and under the Corps’ regulations as applied here, Buttrey’s “paper hearing” gave him all the process which was due him. The starting point for any inquiry into how much “process” is “due” must be the Supreme Court’s opinion in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Implicitly adopting the three-part analysis developed by Judge Friendly the previous year, Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1278 (1975), the Court set out the three most important considerations that a court should balance: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of siich interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. at 903 (citation omitted). The first and third considerations pose the fewest problems. Buttrey clearly has a strong “private interest” in turning what is now commercially worthless swampland into residential homes, which he could then sell. It is equally clear that he is also not a person “on the very margin of subsistence” and that denial of his application will not deprive him of “the very means by which to live.” 424 U.S. at 340, 96 S.Ct. at 905. The government, moreover, is doing nothing more than denying him a permit; it is not taking action against him. The distinction is important, for, as Judge Friendly has remarked, “[rjevocation of a license is far more serious than denial of an application for one; in the former instance capital has been expended, investor expectations have been aroused, and people have been employed.” Friendly, supra, at 1296. The government, in other words, has not taken anything of Buttrey’s and made it worth less; rather, it has merely told Buttrey that (at least under his current proposal) he must keep what he has without attempting to make it worth more. This distinction, we hasten to add, is not a disguised attempt to revive the discredited doctrine of “rights” and “privileges.” We draw the distinction merely in an attempt to determine, in the words of the Eldridge opinion, what weight we should give to “the private interest that will be affected by the official action.” 424 U.S. at 335, 96 S.Ct. at 903. And like the Eldridge court — which decided that the disabled worker was entitled to less process than the welfare recipient — we decide that Buttrey’s interest, while important, is not great enough to demand the imposition of full trial-type procedures without further careful analysis. The third Eldridge consideration, also fairly uncomplicated, demands that we examine the “fiscal and administrative burdens” that trial-type proceedings would entail. 424 U.S. at 335, 96 S.Ct. at 903. We understand that a routine imposition of trial-type procedures on the Corps would entail a substantial, and probably unbearable burden. Col. Ryan has testified that the Mobile District alone processes some 1200 applications per year, Ryan Deposition at 18, and the. government has informed us that the Corps presently has no administrative law judges assigned to it. Brief for Appellee at 21 n.13. Trial-type hearings, if routinely or even often granted, would not simply impose a “burden” on the Corps. Such a requirement in all likelihood would make it impossible for the Corps to carry out its Congressional mandate under section 404 at all. The Corps’ situation is not atypical. In connection with a related water pollution control program, for instance, the Supreme Court has emphasized that if the EPA were required to grant oral hearings in “most” of its 2200 yearly applications, there would be “serious questions about the EPA’s ability to administer the . .. program.” Costle v. Pacific Legal Foundation, 445 U.S. 198, 215, 100 S.Ct. 1095, 1105, 63 L.Ed.2d 329 (1980). These facts lead us to conclude that absent fairly unusual circumstances, and under the present regulations as applied in this case, the Corps should not be required routinely to grant requests for trial-type hearings. Finally, the second and most complicated Eldridge consideration requires us to balance “the risk of an erroneous deprivation of [the administrative litigant’s] interest through the procedures used” against the “probable value, if any, of additional or substitute procedural safeguards.” 424 U.S. at 335, 96 S.Ct. at 903. We preface what follows with a word of warning. Any inquiry under the second Eldridge heading must necessarily be very fact-specific. A procedure that seems perfectly reasonable under one set of circumstances can, with only a slight modification of the facts, suddenly “smack . . . of administrative tyranny.” Larry v. Lawler, 605 F.2d 954, 962 (7th Cir. 1978). This area of the law therefore ill-lends itself to sweeping generalizations, and all the less so because of the variegated contexts in which the problems arise: high-stakes administrative cases such as the present one, where each side is skillfully represented by experienced counsel and where no expense is spared, little resemble the context in which many of the leading cases have arisen. Many of the leading decisions are social security, welfare, or similar cases, where the plaintiffs may not be represented by counsel and may not fully understand their rights. The only truly general principle that appears in all the decisions seems to be that the more articulate an administrative plaintiff is likely to be, the more chances he has effectively to rebut the agency’s case against him, and the more his “factual” objections shade over into the area of legislative fact and policy, the less likely it is that he will be entitled — depending upon the entire three-part Eldridge test — to a full trial-type hearing, held on the record with a right to cross-examine witnesses. Each case, in other words, will depend upon the nature of the facts challenged and upon the effectiveness of the procedures afforded the plaintiff for challenging them. The procedures adopted by the Corps of Engineers in reviewing Buttrey’s section 404 permit application afforded him considerable protection. The Corps in effect gives applicants a “paper hearing.” After public notice of the pending application has been given, the Corps usually receives numerous comments from other federal agencies and the interested public. As the comments arrive, they are (and were in this case) immediately forwarded to the applicant. The pertinent regulation provides: The applicant must be given the opportunity to furnish the District Engineer his proposed resolution or rebuttal to all objections from Government agencies and other substantive adverse comments before final decision will be made on the application. 33 C.F.R. § 325.2(a)(3) (1981). Understandably eager to write the most effective rebuttal possible, Buttrey asked for and got six months within which to prepare his response. It ultimately included a ten-page memorandum of law, a nine-page technical analysis by a biology professor at Tulane University, and an elaborate engineering analysis commissioned from a consulting engineer. Buttrey also demanded and got a chance to meet informally with the District Engineer, Col. Ryan. At the end of all this, the Corps nevertheless decided to deny the application. Col. Ryan filed three detailed documents supporting and explaining his decision: a four-page “Environmental Assessment,” see 33 C.F.R. § 325.2(a)(4), a three-page evaluation of the project under the Corps’ section 404(b) or “wetlands” guidelines, see 33 C.F.R. § 325.2(a)(6); 40 C.F.R. § 230, and an eight-page document entitled “Findings of Fact,” reviewing all of the documents and information used in reaching the decision, see 33 C.F.R. § 325.-2(a)(6). These three documents were then mailed to Buttrey pursuant to 33 C.F.R. § 325.2(a)(7). All of this is, we think, a great deal of “process.” The question only remains whether the imposition of trial-type procedures could reduce the risk of error enough to make the reform worth the cost. The particular facts of this wetlands controversy now become critically important. Buttrey complains generally, first, that “there is no scientific basis for the conclusions” reached in Col. Ryan’s findings of fact, Appellant’s Initial Brief at 9, and second, that his proposed project would not have “adverse environmental impact,” Appellant’s Reply Brief at 3. He also makes two more specific factual arguments. He claims, first, that his project will not lessen downstream water quality, Initial Brief at 14, and second, that his project is necessary to prevent flooding in his adjacent Magnolia Forest subdivision, Initial Brief at 16, 30. Buttrey freely concedes that he is claiming, in effect, that “[i]f the Corps’ facts were true, [I] would have no case.” Reply Brief at 3. For Buttrey, this case is all about these few specific questions of “adjudicative” fact. See Reply Brief at 9-10 (conceding that the facts listed in this paragraph are the only essential ones in dispute). For Buttrey, in short, this case involves no policy questions, no broader questions of “legislative” fact. See id. We think that Buttrey has fundamentally misconceived the purpose of section 404 of the Clean Water Act, and further, that he does not understand the nature of the Corps’ administrative process. Section 404 of the Clean Water Act was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976) (section entitled “Congressional declaration of goals and policy”). Certain value judgments have already been made. The regulations promulgated pursuant to the Act — whose substantive (rather than procedural) validity Buttrey does not challenge — expressly prohibit exactly the kind of factual maneuvering Buttrey is attempting to engage in. Before issuing any dredge or fill permit, the Corps is required to conduct a “public interest” review. This review considers virtually all aspects of a project: “conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and, in general, the needs and welfare of the people.” 33 C.F.R. § 320.4(a)(1) (1981). The regulations further provide that the review may not be “piecemeal” — a few acres here, a small tract there. The rationale is simple. “Although a particular alteration of wetlands may constitute a minor change,” the regulations note, “the cumulative effect of numerous such piecemeal changes often results in a major impairment of the wetland resources.” 33 C.F.R. § 320.4(b)(3). Specifically, “[wjhen disruptions in flow and circulation patterns occur, apparently minor loss of wetland acreage may result in major losses through secondary impacts.” 40 C.F.R. § 230.41(b) (1981). The regulations further state that the Corps shall begin its analysis of a proposed project with the presumption that the “unnecessary alteration or destruction of [wetlands] should be discouraged as contrary to the public interest.” 33 C.F.R. § 320.4(b)(1).' This presumption is very strong. See 40 C.F.R. § 230.1(d) (“The guiding principle should be that degradation or destruction of special sites [“such as filling operations in wetlands”] may represent an irreversible loss of valuable aquatic resources”). To overcome it, an applicant must make three very difficult showings: first, that “the benefits of the proposed alteration outweigh the damage[s],” second, that “the proposed activity is primarily dependent on being located in, or in close proximity to the aquatic environment,” and third, that the proposed project cannot be located on any “feasible alternative sites.” 33 C.F.R. § 320.4(b)(4). In light of all of the above, it would hardly be putting the case too strongly to say that the Clean Water Act and the applicable regulations do not contemplate that wetlands will be destroyed simply because it is more convenient than not to do so. See 40 C.F.R. § 230.1(c). Congress and the agency have already determined that “[w]etlands are vital areas that constitute a productive and valuable public resource,” 33 C.F.R. § 320.-4(b)(1); see 33 U.S.C. § 1251 (1976), and Buttrey may not challenge that determination here. Buttrey has nevertheless attempted to challenge these policies indirectly by presenting his objections in the guise of arguments about “adjudicative” facts. He argues, for instance, that the Corps should have considered the public benefits of the $3 million or so in public jobs that the construction of his proposed housing addition would create. Appellant’s Initial Brief at 13. But this is not the kind of “economic” benefit the Corps’ public interest review is supposed to consider. See Regulatory Programs of the Corps of Engineers, 42 Fed.Reg. 37, 122, 37, 122, 37, 125-26 (1977) (reviewing history and purpose of the “public interest” review process). Again, But-trey claims that his project will not harm the environment because the 40 acres at stake in this lawsuit are a “mere flyspeck” in relation to the entire Pearl River watershed. See Appellant’s “Memorandum of Law in Support of Section 404 Permit Request” at 10, Administrative Record at tab 29. Stripped of its “adjudicative” fact disguise, this “factual” objection amounts to a demand that the Corps engage in precisely the kind of limited review of “piecemeal changes” that the regulations forbid. 33 C.F.R. § 320.4(b)(3) (quoted in the preceding paragraph). Buttrey’s related contention that his project would not lessen downstream water quality is also, in effect, no more than an assertion that the policies set out in the Corps’ wetlands regulations are fundamentally unsound. His argument manifestly does not concern “adjudicative” facts. Part of the confusion about the water quality issue stems from the fact that the parties have confused two related questions — suspended silt pollution from the dredging operations themselves and the long term effects from the loss of the purifying natural filtration function of wetlands. Buttrey insists that water quality is an issue, but the only evidence he has presented is a letter, dated February 19, 1979,' from the Louisiana Stream Control Commission stating that “water quality standards of the State of Louisiana will not be violated provided turbidity during dredging in public waters is kept to a practicable minimum.” This is a complicated way of saying that the Stream Commission is worried that dredging may muddy the waters, but that the problem is not severe enough to warrant cancelling the project. A glance at the statutory authority pursuant to which the letter was written reinforces this impression. The letter refers to a Louisiana statute, 1975 La.Acts 712 (codified at 56 La.Rev.Stat.Ann. § 1439(5)) (repealed 1980), and to sections 303 and 401 of the Clean Water Act, 33 U.S.C. §§ 1313, 1341 (1976 & Supp. IV 1980). But all of these statutes concern only water pollution — an issue that has nothing at all to do with the unique role that wetlands play in purifying water. See 33 C.F.R. § 320.4(b)(2)(vii) (1981) (“Wetlands through natural water filtration processes serve to purify water.”); 40 C.F.R. § 230.41(b) (same). The Corps, on the other hand, has found that Buttrey’s project would have “an adverse impact on ... a wetland having significant functions of water quality maintenance.” Attachment 2 at 2, Findings of Fact, Administrative Record at tab 48. Beyond his general assertion that his forty-acre wetland is too small to matter to anyone, Buttrey has not challenged this determination. The material facts about downstream water quality therefore remain undisputed. Buttrey complains that these findings nevertheless lack a “scientific basis.” We think that once one accepts the value judgments already made in section 404 and in the regulations thereunder, the “scientific” basis of the Corps’ findings in this case becomes clear. Buttrey’s last factual contention poses a more difficult problem. While he insists that the proposed project will help prevent flooding in the adjacent Magnolia Forest subdivision, several of the public commentators have declared with equal vigor that the bayou does not present a flooding problem even in its present “unimproved” state. Although the regulations do require the Corps to consider “flood damage prevention” in making its public interest review, 33 C.F.R § 320.4(a)(1) (1981), the Corps concluded only that “[djata submitted [are] insufficient to determine what impact the project will have on potential downstream flooding.” Attachment 1, at 2, Findings of Fact, Administrative Record at tab 48. Indeed, while the two-inch thick administrative record in this case contains no probative evidence about the flooding controversy, the regulations suggest that destroying wetlands may increase the chances of local flooding. See 40 C.F.R. § 230.41(b) (1981). If Buttrey wanted the Corps to appreciate the full danger that the bayou posed to his Magnolia Forest subdivision, he should have presented evidence on the issue. Having chosen not to do so, he cannot now fairly complain that he was denied procedural due process because the data were insufficient. Against this factual background we must now assess “the probable value ... of additional or substitute procedural safeguards.” 424 U.S. at 335, 96 S.Ct. at 903. We conclude that additional procedural safeguards, including the imposition of trial-type procedures, would do virtually nothing to reduce the chances of error. The regulations themselves — and again we stress that Buttrey has not even mentioned their substantive provisions — in effect foreclose the kinds of “factual” arguments Buttrey has made throughout these proceedings. See generally Ames & McCracken, Framing Regulatory Standards to Avoid Formal Adjudication: The FDA as a Case Study, 64 Calif.L.Rev. 14 (1976) (recommending that agencies draft fact-specific regulations to eliminate as many full adjudications as possible). Congress and the Corps have wisely decided that each litigant should not be able to insist upon a de novo determination of the value of wetlands to the American public. The rationale, as expressed by Professor Davis, seems to be that “evidentiary hearings are usually appropriate only for resolving disputes about facts pertaining to a particular party and are usually inappropriate for resolving other kinds of questions, such as questions of law, policy, discretion, or broad and general facts that help decide questions of law or policy.” 2 K. Davis, supra, § 13:6, at 237 (Supp.1982). In any event, we think that disputes over “the ‘legislative’ facts and the proper formulation of policy or interpretation of law to be applied to the case” are best resolved through simple submission of carefully considered written arguments. See Gellhorn & Robinson, Summary Judgment in Administrative Adjudication, 84 Harv.L.Rev. 612, 630-31 (1971) (footnote omitted). Even if this case did depend upon conflicting scientific testimony, as Buttrey claims it does, the right of cross-examination provided by full trial-type procedures would probably serve little purpose. Many courts and commentators have concluded that cross-examination of scientific witnesses in a case of this sort is often, if not always, an exercise in futility. See, e.g., Eldridge, supra, 424 U.S. at 343-44, 96 S.Ct. at 907 (noting probable worthlessness of opportunity to cross-examine expert physician specialists); Basciano v. Herkimer, 605 F.2d 605, 610-11 (2d Cir. 1978) (“[T]he value of cross-examination to discredit a professional medical opinion at best is limited.”), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979); 3 K. Davis, supra, § 15:10, at 184 (2d ed. 1980) (recommending that cross-examination be “rarely allowed” in cases involving mixtures of legislative fact and judgment); Ames & McCracken, supra, at 35 (“Cross-examination . .. will be most cumbersome when the issues are complex .... ”); Friendly, supra, at 1285 (“in many such [“recondite scientific or economic”] cases the main effect of cross-examination is delay.”); Korn, Law, Fact and Science in the Courts, 66 Colum.L.Rev. 1080, 1086-87 (1966) (the value of cross-examination “is often negligible where the dispute turns on matters of expert judgment rather than veracity”); but cf. Boyer, Alternatives to Administrative Trial-type Hearings for Resolving Complex Scientific, Economic, and Social Issues, 71 Mich.L.Rev. 111, 127-28 (1972) (noting controversial nature of cross-examination of expert witnesses). Buttrey has, moreover, apparently decided not even to attempt to make the three showings required under 33 C.F.R. § 320.-4(b)(4) (1981). Procedural improvements in the nature of trial-type safeguards could do nothing to remedy so fundamental a flaw in the prima facie ease. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620, 93 S.Ct. 2469, 2478, 37 L.Ed.2d 207 (1973) (agency not required to “provide a formal hearing where it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations”). Finally, Buttrey has been given an oral hearing with Col. Ryan, the District Engineer ultimately responsible for deciding not to issue the section 404 permit. Although Buttrey has intimated that because this meeting was informal and off-the-record it somehow does not “count” in the due process analysis, the courts have unanimously concluded that this kind of informal meeting can often be very important in ensuring that due process is given. The Supreme Court in Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 18, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978), for example, has said that “[t]he opportunity for a meeting with a responsible employee empowered to resolve the dispute” could in some instances be enough of a hearing even without written submissions. See Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975) (providing for informal meetings in school discipline cases); Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (“Informal procedures will suffice.”); Gray Panthers v. Schweiker, 652 F.2d 146, 166, 169 (D.C.Cir.1981) (“opportunity for informal oral consultations” is enough). The present case is clearly not one where the agency is attempting to hide behind a faceless, bureaucratic mask to avoid having anyone take direct responsibility for an unpopular decision. The Corps has fully and directly justified its action. See 2 K. Davis, supra, § 12:12, at 458-59 (2d ed. 1979) (noting the importance of face-to-face meetings with the agency in maintaining public trust and confidence in accuracy of agency’s administrative system). We do not, however, hold that the due process clause requires this kind of informal oral hearing in every case. We merely note that in this case, Buttrey has been afforded virtually every “process” short of a full trial-type hearing. We hold, in sum, that Buttrey’s property interest, while important, is not overwhelmingly so; that the Corps’ paper hearing procedures, with an informal face-to-face meeting, provided Buttrey with a great deal of procedural due process; that imposing a requirement of trial-type procedures, with oral cross-examination of witnesses, would probably not reduce the chance of error; that trial-type proceedings would in any event be prohibitively expensive and so cumbersome as to make it virtually impossible for the Corps to carry out its statutory mandate; and finally, that, after weighing all of these considerations in the balance, Buttrey was given all the procedural protections to which he was entitled under the due process clause of the Constitution. Under the facts of this case, any greater procedural requirements would simply not be worth the cost. III. THE DENIAL OF THE PERMIT. In addition to challenging the procedures used by the Corps to process the permit application, Buttrey challenges the determination itself. He contends that it was arbitrary, capricious, and not in accordance with law in that it was not based on a consideration of all of the relevant facts. See Administrative Procedure Act § 10(e), 5 U.S.C. § 706 (1976). Under this standard of review, 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.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). We also bear in mind, as the Supreme Court has emphasized, that “[although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. [A] court is not empowered to substitute its judgment for that of the agency.” Id. Buttrey contends that the Corps in fact ignored the following information: (1) evidence that water quality standards of the State of Louisiana would not be violated; (2) evidence that the proposed project would enhance the aesthetics of the area and improve recreational opportunities; (3) evidence that the project would reduce the chances of flooding and that it had been endorsed by the State of Louisiana as an approved drainage project; (4) evidence that by eliminating mosquito breeding areas, the proposed project would decrease health problems in the area; and (5) evidence that the project would provide economic benefits to the area of approximately $3 million during construction and would place the property on the tax rolls. Appellant’s Initial Brief at 14-17. For all of these contentions, Buttrey relies primarily on the deposition testimony of Col. Ryan and Donald Conlon (the Chief of the Regulatory Functions Branch), the taking of which the district court had authorized for purposes of determining the Corps’ jurisdiction. Although the depositions were taken only for that limited purpose, Buttrey maintains that some of the responses prove that the Corps acted arbitrarily and capriciously in making its decision. The propriety of thus going outside the administrative record has been discussed in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). There, the Supreme Court stated that the courts were forbidden from undertaking a de novo inquiry on appeal from an agency decision that had already produced a reviewable record. 411 U.S. at 143, 93 S.Ct. at 1244. The Court added: The validity of the [agency’s] action must, therefore, stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the [agency’s] decision must be vacated and the matter remanded to [it] for further consideration. Id. As in Pitts, the decision here was accompanied by a contemporaneous explanation. We therefore look only to the administrative record in order to determine if the Corps’ decision was arbitrary, capricious, or not in accordance with law. The Environmental Assessment accompanying the Corps’ findings of fact made the following points: a. Biological. This proposed action will result in the permanent destruction of approximately 40 acres of túpelo gum swamp resulting in loss of wetland functions considered valuable to the public interest. There will be an increase in turbidity of the water at and downstream of the proposed site during the construction activity. The cumulative effects of this proposed activity will seriously impact the remainder of Gum Bayou and possibly the West Pearl River. Data submitted [are] insufficient to determine what impact the project will have on potential downstream flooding. b. Socioeconomic. The impact should be minimal, however social and/or economic changes could occur over a long period of time. c. Aesthetics. The proposed activity will destroy the natural features of the existing túpelo gum swamp. d. Land Use. The proposed activity would change the land use of the existing gum swamp. However, the development of residential lots would be consistent with the land use of the adjacent subdivision. e. Air Pollution. As a result of the proposed activity changes in air quality could occur due to increased usage of the area. f. Noise. Noise levels would increase in the area during the construction process. Average noise levels would increase gradually in the area following the completion of the proposed activity due to an increase in residences and an increase in traffic. The assessment also asserted that “[ajpproximately 40 acres of substrate [would] be removed or filled, destroying the organisms inhabiting and frequenting this area.” The “Evaluation of the Effects of the Discharge of Dredged or Fill Material into Waters of the U. S. Using the Section 404(b) Guidelines,” which also accompanied the Corps’ findings of fact, then enumerated the costs and benefits that the Corps weighed before determining that the permit application should be denied. The Corps’ decision must, in the words of the Supreme Court, “stand or fall,” 411 U.S. at 143, 93 S.Ct. at 1244, on the issue of whether it acted arbitrarily and capriciously in finding that when the total adverse effects of the proposal are weighed against the benefit to the public, the public interest would best be served by denial of the requested permit. A careful review of the record does not indicate that the Corps failed to consider all the facts. Comments favorable to the proposal were included in the record and were individually acknowledged by the Corps in its findings. Nonetheless, the Corps, after considering all the facts, found that the costs of the project outweighed its potential benefits and that the public interest would best be served by denying the permit. We do not consider this conclusion arbitrary, capricious or not in accordance with law. IV. THE CORPS’ WETLANDS DETERMINATION. Buttrey also challenges how the Corps determined that “wetlands” were involved and the failure of the district court to engage in its own substantial inquiry. The Corps found that Buttrey’s proposal would destroy wetlands and therefore lessen the water quality associated with a freshwater swamp and stream. Although Buttrey concedes that his bayou is a wetland,- he insists that the Corps never determined the extent of the wetlands involved or what, if any, impact the proposed project would have on “wetlands.” The Corps’ Environmental Assessment, however, states that the proposed action would result in the destruction of approximately 40 acres of túpelo gum swamp resulting in loss of wetland functions considered valuable to the public interest. The essence of Buttrey’s complaint is that the Corps itself conducted no tests in determining wetlands jurisdiction and instead relied on information supplied by other individuals and agencies. Buttrey has failed to show, however, that anything more was required. He does not deny that the Corps’ finding of wetland status is correct. Reports from the Fish & Wildlife Service, the Environmental Protection Agency and the National Marine Fisheries Service all described the area as a wetland. There is, therefore, sufficient basis for us to uphold the Corps’ “wetlands” finding under the “arbitrary and capricious” standard of review. Buttrey also urges that, because the determination of wetlands status goes to the Corps’ jurisdiction, the district court erred in refusing to engage in its own substantial inquiry into the extent of the wetlands and the environmental impact of the project. Again we disagree. Buttrey does not argue that the Corps’ regulations improperly define wetlands. To determine, then, that the Corps had acted within the scope of its authority, the district court needed only to find that the Corps “could have reasonably believed” that the factual predicate necessary to its assertion of authority existed. Citizens to Preserve Over-ton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). At that point, the factual findings that form the basis of the Corps’ decision become reviewable, as indicated above, under the “arbitrary and capricious” standard of review. We conclude that the Corps’ decision is neither arbitrary nor capricious. AFFIRMED. . The only really material difference between the old regulations, 33 C.F.R. § 209.120(g)(4) (1972) (superseded 1977), and the current regulations, 33 C.F.R. § 327.8 (1981), concerns the right of cross-examination. The old regulations provided that each party had the right to make a rebuttal statement, but that “cross-examination is not usually permitted.” The current regulations also provide for rebuttal statements, but then add that “[c]ross-examination of witnesses shall not be permitted.” Since the difference in actual practice between the old version and the new seems to be virtually nonexistent, see Regulatory Programs of the Corps of Engineers, 42 Fed.Reg. 37, 122-23 (1977) (negative implication that the hearing procedures were not materially altered), we do not think that the difference affects our analysis. . See, e.g„ Califano v. Yamasaki, 442 U.S. 682, 696, 99 S.Ct. 2545, 2555, 61 L.Ed.2d 176 (1979) (oral hearing not required in case involving “relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes”); Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) (three-suspensions-and-you-lose-your-driver’s-license rule held to be so narrow that oral hearing not required); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 621, 93 S.Ct. 2469, 2479, 37 L.Ed.2d 207 (1973) (“We cannot impute to Congress the design of requiring, nor does due process demand, a hearing when it appears conclusively from the applicant’s ‘pleadings’ that the application cannot succeed.”); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1068 (5th Cir. 1982) (commenting that “[c]ross-examination is . . . not an absolute right in administrative cases" partly because 127 of some 1600 witnesses already had been cross-examined); ECEE, Inc. v. Federal Energy Regulatory Commission, 645 F.2d 339, 352 (5th Cir. 1981) (“informal conference and written comment” provision enough to protect private interests in certain well-determination controversies); Superior Trucking Co. v. United States, 614 F.2d 481 (5th Cir. 1980) (“paper hearing” is enough to protect party protesting interlocutory injunction in ICC licensing case). The following is typical of the kinds of caveats that appear in all the cases: “In short, all we hold today is that in this case, on these facts, this plaintiff was not denied due process of law by the City’s procedure as here applied." Basciano v. Herkimer, 605 F.2d 605, 612 n.8 (2d Cir. 1978) (trial-type hearing not required only on facts of case sub judice) (emphasis in original), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979). . We note parenthetically that although there is a Fifth Circuit opinion almost directly on point, Taylor v. District Engineer, 567 F.2d 1332, 1338 (5th Cir. 1978) (upholding the Corps’ permit granting procedures against a due process challenge), we choose not to rely on it as the exclusive support for our decision. The opinion in Taylor briefly noted that the Corps’ regulations, as applied in that case, were constitutional, but did not refer to EIdridge or any of the other due process cases. While we fully agree with the end result in Taylor, we think that the most prudent course — in this area where so much depends upon the facts of each case — is to undertake a full analysis of the question ourselves. . In a case such as the present one, where the plaintiff has already been afforded an extensive “paper hearing,” the threshold issue is whether he can “understand the case against him and . . . present his arguments effectively in written form.” Friendly, supra, at 1281. Cf. Goldberg V. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (“Written submissions are an unrealistic option for most [welfare] recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance.”); Gray Panthers v. Schweiker, 652 F.2d 146, 156 (D.C.Cir.1981) (same). Since, as we have intimated above, Buttrey has been skillfully represented by experienced counsel throughout these proceedings, we need not concern ourselves with the kinds of questions that troubled the courts in Goldberg and Gray Panthers. . Buttrey contends, for instance, that the Corps’ denial of his permit application is invalid partly because it remains “totally unsupported by any admissible evidence.” We reject this argument for the reasons given in W. Gellhorn, C. Byse & P. Strauss, Administrative Law 730-51 (7th ed. 1979) (collecting and analyzing cases). The leading Supreme Court decision is Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (hearsay evidence may constitute “substantial evidence” for purposes of reviewing agency action). Buttrey cites no cases holding to the contrary. . The letter also mentions section 404 of the Clean Water Act, which was not then applicable to Louisiana. The 1977 additions to section 404 do provide for coordination with approved state regulatory schemes, but Louisiana did not establish such a plan until 1980, see 30 La.Rev. Stat.Ann. §§ 1091 1096 (West Supp. 1982) (state regulation of “dredge and fill” operations to begin Jan. 1, 1980). . Although the Louisiana statute cited in the text, 1975 La.Acts 712 (repealed 1980), refers to five federal statutes, all five concern only “water pollution” in the traditional sense, not the kind of water-quality lessening that occurs after the completion of dredge and fill operations in wetlands; moreover, the letter itself makes clear that it is concerned only with the “water quality standards of Louisiana provided for under Section 303” of the Clean Water Act. Section 303, 33 U.S.C. § 1313 (1976), in turn, also only concerns itself with “effluents” and other forms of water pollution in the traditional sense. . The record does contain a report from But-trey’s consulting engineer, Ivan Borgen, recommending that the bayou be dredged “to minimize flooding within portions” of the Magnolia Forest subdivision, but the report simply states its conclusion without explanation. Nothing in the record indicates when the bayou has flooded in the past, how bad the flooding was, what kind of damage was done, or if it seems likely that similar damage is to be expected if But-trey’s project is not allowed to proceed. . See text 690 F.2d 1180 supra. . In addition to contending that the Corps failed to consider all relevant factors, Buttrey contends that the district court failed in its duty to review the agency action to ascertain that the relevant factors had been considered. We find no support for this assertion. The district court expressly concluded that the public interest was neither ignored nor dishonored, despite the fact that Buttrey made much of the Corps’ failure to articulate meaningfully those public interests which, by statute and regulation, it must consider in the permit process. The district court accompanied this conclusion with a quotation from Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), to the effect that the court must determine whether the agency decision was rational and based on consideration of the relevant factors.

United States v. King Fisher Marine Service

PER CURIAM: Since 1952 King Fisher Marine Services, Inc. has held a permit issued by the Army Corps of Engineers allowing dredging of a channel and turning basin in Chocolate Bay. The permit was renewed periodically to allow maintenance dredging. In 1973, however, the permit was renewed only on the condition that King Fisher also dredge three fish passes to facilitate both water circulation and fish passage. Two of the three fish passes were dredged according to the permit specifications. This litigation, however, concerns the third. The district court found, and it is undisputed on appeal, that the location of the third fish pass passes muster under the permit. It is also conceded that King Fisher dredged this third fish pass to a depth of ten feet, although the permit specified that the fish passes were to be dredged only to a depth of four feet. The district court found that King Fisher cut this pass “to satisfy the business needs of his company, with little regard for the requirements set by the government.” Nevertheless, the court found that this discrepancy “did not substantially violate its Army Corps of Engineers permit,” and, accordingly, entered judgment for King Fisher. The government contends that this constituted error on the part of the district court. We agree, and remand the case for determination of relief to which the United States is entitled. Dredging operations, such as those under consideration here, may not be undertaken without a permit from the Army Corps of Engineers. Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, “is structured as a flat prohibition unless —the unless being the issuance of approval by the Corps.” Zabel v. Tabb, 430 F.2d 199, 207 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (emphasis in original). The Corps may refuse or condition permits due to environmental concerns. Id., 430 F.2d at 201, 207. Similarly, the Federal Water Pollution Control Act prohibits discharge of dredged spoil without a permit issued under § 404 of that Act, 33 U.S.C. § 1344. 33 U.S.C. § 1362(6). See Weiszmann v. District Engineer, United States Army Corps of Engineers, 526 F.2d 1302, 1306 (5th Cir. 1976). These statutes are mandatory in character, and require strict compliance with the permit issued by the Corps of Engineers. Here the permit was specifically conditioned on the dredging of three fish passes of four feet in depth. King Fisher dredged one of those passes at a greater depth. Obviously, there was a violation of the permit, and the district court erred in deciding otherwise. Accordingly, we reverse the district court’s judgment for King Fisher. We remand to the district court for a determination of the relief to which the United States is entitled. The district court has broad discretion, within the bounds of the governing statute, to fashion the appropriate relief. REVERSED AND REMANDED.

Seacoast Anti-Pollution League v. Costle

COFFIN, Chief Judge. This case returns to us challenging the Administrator’s Remand Opinion reaffirming his approval of the proposed once-through cooling system for the Seabrook Nuclear Power Plant. We had remanded his first decision on procedural grounds. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, cert. denied, - U.S. -, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978). The petitioners, Seacoast Anti-Pollution League and Audubon Society of New Hampshire, now seek review of a procedural aspect of the Administrator’s hearing on remand, the substance of the decision, and the adequacy of the Administrator’s explanation of his decision. I. The Procedure on Remand We explained the procedural history of this case and the design of the Seabrook facility in our earlier opinion, supra. We will not repeat ourselves. That opinion left the Administrator with several options for correcting his errors. He issued a “Response to the Remand Order in the Sea-brook Case” choosing to hold a new hearing at which the technical experts who had advised him before would testify and be subject to cross-examination. He also decided to allow the parties to introduce evidence not offered at the prior hearings. Though petitioners suggest they may somehow have been injured by the breadth of the remand hearing, they do not argue that these aspects of the procedural order were erroneous. They challenge, however, the Administrator’s instructions to his staff: “I am directing my Staff not to appear at this hearing as proponents of any particular result, and avoid to the extent possible taking an adversary position in it. The Staff of Region I shall prepare a technical summary and analysis of the evidence submitted . . . . This report shall be non-adversary in nature, but shall contain specific conclusions and recommendations.” The hearing was held, and the staff appeared and cross-examined witnesses. The staff replied to proposed findings and conclusions of the applicant Public Service Company of New Hampshire (PSCO), an intervenor before us, but did not file proposals of its own. The staff’s technical summary and analysis did not make specific conclusions, apparently in part because the staff experts were not unanimous. Petitioners spend a good deal of space arguing that such an order is unprecedented in agency practice. If so, we might be curious why the Administrator issued such a novel order, but we would not, for that reason, have any basis to hold the order illegal. Absent law to the contrary, agencies enjoy wide latitude in fashioning their procedural rules. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The only law petitioners cite to support their position that the Administrator is compelled to allow his staff to participate as an adversary is unpersuasive. Office of Communications of United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543 (1969), is not on point because it was concerned only with the impact agency neutrality can have on the allocation of the burden of proof. The regulation, 40 C.F.R. § 125.36(a)(1), in which the Administrator defines “party” to include “officers or employees of the Environmental Protection Agency” does not answer the question. Petitioners argue, by reference to Black’s Law Dictionary, that a party is someone “who takes sides” and that, therefore, the regulation requires the Agency to take a side. In fact, of course, the word “party” has a far broader meaning and can refer to anyone “concerned or having or taking part in any affair, matter, transaction, or proceeding”, to quote again from Black’s. One can participate in a proceeding without taking a side. In short, merely labeling the Agency’s staff a party tells us nothing about the duties of that party. Finally, petitioners suggest that EPA must take a side to meet its Congressional mandate to protect the environment. Certainly EPA need not always side against applicants for permits to discharge pollutants. The staff was an active participant in the remand hearing, both in building and testing the record. Staff experts offered views on both sides of the issues. The only thing the staff did not do was advocate a particular outcome. The Administrator found that the record would not have been more complete had the staff taken sides. We are not sure how petitioners can show that they are aggrieved by the Agency’s neutrality given the significant likelihood that the staff would have chosen, if put to it, to support the Administrator’s earlier decision (the substance of which we had not addressed in our opinion). But petitioners have failed to point us to any law requiring EPA’s staff not to be neutral. Therefore this challenge fails. II. Substantive Challenges PSCO, as a point source applying for permission to discharge heat, is required to “demonstrate to the satisfaction of the Administrator” that the design of the Sea-brook plant “will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife . . .” 33 U.S.C. § 1326(a). Moreover, “the location, design, construction, and capacity of cooling water intake structures [must] reflect the best technology available for minimizing adverse environmental impact.” 33 U.S.C. § 1326(b). We must affirm the Administrator’s decisions under these sections if they are supported by substantial evidence in the record. 5 U.S.C. § 706(2)(E). The plant’s design requires 824,000 gallons of cooling water per minute. The design calls for cooling water to be drawn from the ocean beyond the Hampton-Sea-brook Estuary about 7,000 feet offshore from Hampton Beach. The water there is 58 feet deep. The intake structures will be between 10 and 17 feet above the ocean bottom and will pull water into the system at a velocity of about one foot per second. The water is ultimately discharged at another location through a diffuser system and is about 39 °P warmer than the ambient water temperature. Living organisms sucked into the cooling system are not expected to survive. The Administrator found that most mature fish likely to encounter the intake flow would be able to detect that flow and would have sufficient swimming speed to avoid being trapped. During their larval stages, however, many fish are at the mercy of the tides and currents and would have no way to escape. Even some juvenile fish might be too small, lacking the necessary speed to escape the intake’s pull. The Administrator decided, though, that no species would exist in sufficient numbers at the intake location to be endangered. Though the intake would act as an additional large predator, there are other more dangerous threats in the natural environment, which fish are able to survive because they are highly fecund. Remand Opinion at 51. For instances, individual female winter flounder produce about 500,000 eggs annually and rainbow smelt produce between 25,000 and 50,-000. Id. at 35. Against this background, petitioners raise three relatively narrow issues: that the Administrator erred in concluding (a) that the impact on juvenile rainbow smelt would be small enough to assure the protection and propagation of the species; (b) that the impact on winter flounder larvae would also be small enough; and (c) that the cooling water intake location “reflect[s] the best technology available for minimizing adverse environmental impact.” A. Juvenile Smelt The Administrator found: “Although there is some doubt whether most juvenile smelt possess the requisite swimming speed to avoid the intake, the plant’s effects on them will not, in any event, be significant because most smelt will not be found as far out as the intake structure or in water as deep as its opening. Although in its most recent sampling, Public Service Company’s consultant found some smelt in water at least as far out as, and, perhaps, as deep as the intake structure and its opening, this does not alter the conclusion based upon almost 100 years of experience that smelt is in general an inshore fish found a mile or so offshore inhabiting the upper 3 fathoms of the water column. This was clearly the view of well qualified experts who considered both this general experience and the more recent sampling. The conclusion of these experts is consistent with the general experience of professional fishermen in the area.” (Footnote omitted.) (Emphasis added.) Petitioners challenge this conclusion as unsupported. Their theory is that the Administrator relied on a 1953 book which set the outer boundary of smelt populations at about one mile; whereas the same authors ten years later said that smelt ranged as far as six miles out to sea. Petitioners also point to the PSCO sampling referred to by the Administrator as proof that “smelts were fairly numerous at an area near the proposed intake.” The fact is that the Administrator was fully aware that some smelt could be found at the intake location and that juvenile smelt could be entrapped and killed. These facts do not undermine his finding that “most” smelt will not come near the intake and, thus, will not be endangered. The record certainly supports the Administrator’s finding. The experts who testified at the remand hearing did not base their testimony — that smelt are generally inshore fish — solely on any one document or one study. They testified from their own expertise and from assembled reports of others’ experience stretching back over a century. As they testified, a particular sampling that found a number of smelt in a particular location does not necessarily disprove the collected theories about smelt. The sampling did not address two critical questions — the relative number of smelt in the intake vicinity compared to elsewhere and the location of the smelt in the water column. Without having some idea of the number of smelt closer to shore, the absolute number found near the intake is not very meaningful. It does not help one determine whether the intake will affect the ability of the smelt to propagate and survive. In short, we cannot say that the Administrator was wrong, considering the entire record, to rely on the expert testimony. B. Flounder Larvae The Administrator noted that he could not be certain from the record whether the winter flounder found near the intake were part of a “local population” distinct from other populations of flounder found elsewhere. If the flounder are a local population, then any impact on them from the plant would be magnified, at least potentially, because the local flounders would not interbreed with and recruit from others of the species to augment the population or replace those killed by the intake. Nor, the Administrator found, did the record conclusively demonstrate whether the flounder spawned close to shore or further out to sea. If they spawned closer to shore, it might be more likely that they constituted a distinct population confined to the Hampton-Seabrook Estuary. Petitioners rely on these failures of proof to argue that the Administrator’s conclusion that intake would not significantly endanger winter flounder is unsupported by the record. Resolution of these issues, however, was not essential to the Administrator’s conclusion. The Administrator reasoned that if the flounder were a local population and spawned in the estuary, then few of the larvae would reach the areas of the intake or the diffuser (where the heated water being expelled might endanger the larvae). That is so because the tidal movement of the water in the estuary, the tidal plume, rarely, if ever, reaches those areas. Moreover, the younger larvae, which are most at the mercy of the water movement, would likely be high in the estuary, close to freshwater, and therefore, unlikely to be swept out of the harbor by the tidal plume. Remand Opinion at 41. “In addition, if flounder larvae leave the estuary, they will tend to disperse over a relatively broad area as the water in which they are transported mixes with the coastal water; and although some flounder larvae contained in this mixed coastal water may ultimately be carried northward toward the intake and diffuser, instead of southward with the generally-prevailing currents, only a small portion of these larvae will be affected by the intake and the diffuser.” Id. at 42. If, on the other hand, the flounder are a localized population but spawn offshore, “a much greater area or volume of water must be considered than the area of the diffuser and intake and the waters impacted thereby. There is a vast expanse of coastal area available for spawning. The area around the intake and diffuser does not appear to be unique with respect to flounder spawning and winter flounder larvae population should inhabit areas to the north and south and inshore and offshore from the :utake and diffuser. There are no physiographic structures restricting the spawning area. Neither is there any reason to believe that the coastal area off the Hampton-Seabrook harbor entrance and in the immediate vicinity of the intake and diffuser is different or a more attractive spawning ground than other areas along or off the coast. Nor does any biological reason suggest itself for spawning limited to the area of concern.” Id. at 42 — 43. The Administrator was satisfied that the winter flounder larvae would not be endangered even if the uncertainties pointed to by petitioners were resolved against PSCO. The Administrator’s logic strikes us as compelling, and petitioners give us no reason to doubt either the reasoning or the particular facts upon which it is based. Therefore, we must uphold the Administrator’s conclusion that the protection and propagation of the flounder is assured. We see no reason to delve into factual problems that are not essential to the decision. C. Intake Location Petitioners’ final substantive challenge, to the Administrator’s approval of the intake location and design, is not a model of clarity. The Administrator decided that moving the intake further offshore might further minimize the entrainment of some plankton, but only slightly, and that the costs would be “wholly disproportionate to any environmental benefit”. Remand Opinion at 49-50. Apparently petitioners read the cost figure considered by the Administrator, $20 million, as including the estimated costs of delay and reengineering as well as additional tunnelling. They suggest that the cost of delay is an improper consideration. The record is clear, however, that $20 million is the cost of the tunnelling alone. Petitioners, wisely, do not argue that the cost may not be considered, and no harm is done by noting that there would be other costs. The legislative history clearly makes cost an acceptable consideration in determining whether the intake design “reflect[s] the best technology available”. Petitioners also assign error to the Administrator’s approval of the one-foot-per-second intake velocity. They allege that the Administrator neglected information indicating juvenile fish would be less able to detect and avoid the intake. He plainly, did not ignore that information. His decision acknowledges that some juvenile fish will be killed, id. at 48, and, as we have already discussed, devotes some space to the special problems of juvenile rainbow smelt. Moreover, there is expert testimony that the intake velocity is unusually low and is the optimum intake velocity for the intake site. III. The Administrator’s Decision Petitioners’ last set of arguments is their weakest. They assert that the Administrator violated 5 U.S.C. § 557 by failing to explain adequately a number of procedural orders and factual or legal conclusions. As to most of these, however, they concede that the questioned order or finding was within the Administrator’s discretion. As to the rest, it is plainly apparent either that there is sufficient record support or that the particular finding was not crucial to the decision. And, indeed, petitioners, with one exception, see note 3, supra, do not attack any of these orders or conclusions on their merits. Rather, they suggest that the failure to fully explain and provide record citations for each and every conclusion constitutes reversible error in and of itself. Petitioners are wrong. The Administrative Procedure Act requires a reviewing court to take “due account ... of the rule of prejudicial error.” 5 U.S.C. § 706; cf. Seacoast Anti-Pollution League v. Costie, 572 F.2d 872, 881 n. 19 (1st Cir. 1978) (use of extra-record evidence not fatal unless it substantially prejudices petitioner). Moreover, the rule petitioners would have us apply would not serve the primary purpose of the explanation requirement, which, as petitioners recognize, is to facilitate appellate review of administrative decisions. See Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 586 (1st Cir. 1964). We need no explanation of a decision that we are not asked to review. This does not mean that petitioners do not have the right to a statement of reasons or that agencies do not err when they fail to explain decisions. It only means that we do not sit to resolve abstract arguments about whether particular explanations sufficed. The petition for review is dismissed. . In Vermont Yankee the Court speculated that “[i]t might ... be true, although we do not think the issue is presented in this case and accordingly do not decide it, that a totally unjustified departure from well settled agency procedures of long standing might require judicial correction.” 435 U.S. at 542, 98 S.Ct. at 1211. Even were that true and were this “a totally unjustified departure from well settled agency procedures of long standing”, we would think that the rule would be limited to where the agency deprived some party other than itself of important procedural rights normally accorded. . This phrase is from an illustrative case in Black’s. It is not itself incorporated in the definition of party. Certainly, however, the vast majority of parties to proceedings in our legal system do take sides. . We also reject the suggestion that the Administrator failed to give any reason for his order, assuming arguendo that an explanation jf this order was necessary. Remand Opinion at 56. . Larval smelt would not be endangered because the smelt spawn in fresh water so that very few larvae would be swept out to the intake location. Juvenile flounder would have sufficient swimming speed to escape the intake flow, as would mature fish of either species. The eggs of both species sink and stick to the bottom and, thus, would not be affected by the intake location. . Though noting these uncertainties, among others, the Administrator apparently felt it more likely that the flounder spawned offshore and were not confined to the particular estuary. . A Legislative History of the Water Pollution Control Act Amendments of 1972, 93rd Cong., 1st Sess. 264 (1973). Costs are also an acceptable consideration in determining the “best available technology” under 33 U.S.C. § 1314(b)(2)(B). . Because of our resolution of this iss-'e, we need not decide when, if ever, the Administrator must provide record citations in order adequately to explain his conclusions. We merely note the obvious, that such citations are often useful to a reviewing court.

Minnehaha Creek Watershed District v. Hoffman

HEANEY, Circuit Judge. The United States Army Corps of Engineers and various officials of the Corps appeal from the judgment of the District Court which permanently enjoined the Corps from asserting regulatory jurisdiction over the waters of Lake Minnetonka in Hennepin County, Minnesota, under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Minnehaha Cr. Watershed Dist. v. Hoffman, 449 F.Supp. 876 (D.Minn. 1978). The District Court also permanently enjoined the Corps from asserting regulatory jurisdiction over the placement of rip-rap and the construction of dams in Lake Minnetonka under the Federal Water Pollution Control Act (F.W.P.C.A.), 33 U.S.C. § 1251 eí seq. Id. We affirm in part and reverse in part. The facts in this case are not in dispute, and we essentially adopt the findings of fact as set forth in the District Court’s opinion. Id. at 879-881. Lake Minnetonka is a natural lake, navigable in fact, lying entirely within Hennepin County, Minnesota. The total surface area of the lake is approximately 22.5 square miles. The lake’s depth averages forty feet, although there are isolated spots with depths up to one hundred feet. No permanent tributaries empty into Lake Minnetonka. The lake’s single outlet is Minnehaha Creek, which flows eastward from Gray’s Bay for approximately 20-22 miles, until it empties into the Mississippi .River. Prior to settlement of the area surrounding the lake in the mid-19th century, Indians navigated the lake by canoe. In 1852, a dam and sawmill were constructed on Minnehaha Creek at Minnetonka Mills, a short distance from where Lake Minnetonka flows into Minnehaha Creek. After the construction of this dam, the lake’s water level increased sufficiently to allow the navigation of steam-powered boats and the flotation of logs on the lake. Steamers were used for the carriage of passengers and mail across the lake until 1926. Grain and lumber were shipped or floated on the lake to distribution points, where they were then shipped by rail. Beginning in 1890 and continuing thereafter, Lake Minnetonka was a thriving resort area, with North American and foreign tourists using the lake as a means of transportation from one shore point to another. Present use of Lake Minnetonka is primarily recreational, by both local residents and travelers from other states. Centers of urban population around the lake include the towns of Mound, Excelsior and Wayzata. Rail service to shoreline communities is provided by the Burlington Northern and the Chicago and Northwestern Railroads. The flow of Minnehaha Creek, is intermittent; during a large part of the summer and fall, the flow is inadequate to permit the passage of any form of navigation. There is no history of navigation on the creek of either a private or a commercial nature. Navigation on that portion of the creek between Lake Minnetonka and Minnetonka Mills was rendered impossible by the construction of a dam at the source of the creek at Gray’s Bay in 1897. On May 16, 1916, the Army Corps of Engineers advised the Minneapolis Street Railway Company that construction of a bridge across an arm of Lake Minnetonka would require the Corps’ approval. The Corps did not exercise active jurisdiction over the lake again until February 14, 1975, when it issued a “Determination of Navigability” which concluded that Lake Minnetonka and that portion of Minnehaha Creek above Minnetonka Mills are “navigable waters of the United States,” and are, thus, subject to Corps’ jurisdiction under the Rivers and Harbors Act. The Corps has since asserted its regulatory authority over the lake under both the Rivers and Harbors Act and under § 404 of the F.W.P.C.A. The appellees brought this action, seeking a declaratory judgment that Lake Minnetonka and Minnehaha Creek above Minnetonka Mills are not “navigable waters of the United States” within the meaning of the Rivers and Harbors Act. The appellees requested the entry of an order directing the Corps to withdraw the “Determination of Navigability” of February 14, 1975, and permanently enjoining the Corps from exercising regulatory jurisdiction over Lake Minnetonka or Minnehaha Creek under the Rivers and Harbors Act. The appellees also sought a declaratory judgment that 33 C.F.R. § 323.2(n), promulgated by the Corps, is invalid insofar as it attempts to extend the Corps’ permitting program under § 404 of the F.W.P.C.A. over the placement of riprap and the construction of dams in navigable waters. They sought a permanent injunction against the Corps’ assertion of regulatory jurisdiction pursuant to this regulation over the placement of riprap and the construction of dams in Lake Minnetonka and Minnehaha Creek. Upon cross-motions for summary judgment, the District Court held for the appellees on both counts and granted all the relief requested. Applying the test set forth in The Daniel Ball v. United States, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871), the court held that although both Lake Minnetonka and Minnehaha Creek above Minnetonka Mills are navigable waters, since their capability of use for navigation is undisputed, they are not “navigable waters of the United States” as that phrase is used in the Rivers and Harbors Act because they are located entirely within one state and have no interstate waterway connection with other navigable waters. Minnehaha Cr. Watershed Dist. v. Hoffman, supra at 884. The court held that the Corps lacked jurisdiction over the placement of riprap and the construction of dams in the lake and in the creek since, in its view, such activities do not constitute the “discharge of [a] pollutant” under § 301 of the F.W.P. C.A., 33 U.S.C. § 1311. The court reasoned that although “pollutant,” as defined in § 502(6) of the F.W.P.C.A., 33 U.S.C. § 1362(6), includes “rock, sand, [and] cellar dirt,” and riprap and dams incidentally require rock or sand for construction, such activities are not within the purview of the Act because they do not significantly alter water quality. Id. at 886. We will consider these holdings seriatim. A. Jurisdiction of the Corps of Engineers Under the Rivers and Harbors Act of 1899. In The Daniel Ball v. United States, supra, the United States Supreme Court set forth what was to become the foundational test for determining federal regulatory power over the coastal or inland waters of the United States. Waters subject to federal regulatory jurisdiction, or “navigable waters of the United States,” were defined by the Court as follows: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they 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. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when the form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. Id., 77 U.S. (10 Wall.) at 563. Although The Daniel Ball was a case brought in admiralty, the Court did not base its decision on federal maritime or admiralty jurisdiction but rather on federal power over coastal and inland waterways under the Commerce Clause. The Court stated that since the river in question flowed into Lake Michigan, an interstate waterway, a public navigable waterway is formed which is “brought under the direct control of Congress in the exercise of its commercial power.” Id., 77 U.S. (10 Wall.) at 564. The Court cited its prior statement in Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 18 L.Ed. 96 (1866), that “ ‘[t]he [federal] power to regulate commerce comprehends the control * * * of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress’ ”. The Daniel Ball v. United States, supra, 77 U.S. (10 Wall.) at 564, quoting Gilman v. Philadelphia, supra, 70 U.S. (3 Wall.) at 724-725. Although it has since been established that federal admiralty and maritime jurisdiction and federal power under the Commerce Clause are not necessarily coextensive, see Panama Railroad Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924); Ex parte Garnett, 141 U.S. 1, 12, 11 S.Ct. 840, 35 L.Ed. 631 (1891), the test for federal jurisdiction over navigable waters which was set out in The Daniel Ball has been consistently applied by the Supreme Court in cases involving federal power under the Commerce Clause. See, e. g., Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1900); Miller v. Mayor, Etc. of New York, 109 U.S. 385, 3 S.Ct. 228, 27 L.Ed. 971 (1883); Escanaba, Etc., Trans. Co. v. Chicago, 107 U.S. 678, 2 S.Ct. 185, 27 L.Ed. 442 (1883). Since the Rivers and Harbors Act of 1899 was an exercise by Congress of its power under the Commerce Clause, see Wyandotte Trans. Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Appalachian Electric Power Co., 311 U.S. 377, 404-405, 61 S.Ct. 291, 85 L.Ed. 243 (1940), we agree with the District Court that the extent of federal regulatory jurisdiction under the Act is to be determined in accordance with the basic test set forth in The Daniel Ball. The Rivers and Harbors Act of 1899 was a recompilation of two earlier acts, the Rivers and Harbors Act of 1890 and the Rivers and Harbors Act of 1894. Legislative history of the Rivers and Harbors Act of 1899 indicates that it was understood by its drafters to be merely a restatement of existing law. See United States v. Pennsylvania Chem. Corp., 411 U.S. 655, 666, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). The extent of federal regulatory power under § 10 of the Act, under which the Corps claims jurisdiction in the instant case, is limited to “navigable * * * waters of the United States. Since this is the precise phrase which was defined by the Supreme Court in The Daniel Ball, and which was used in that case and others to describe the reach of the federal commerce power over navigable waters prior to the enactment of the first Rivers and Harbors Act in 1890, we must assume that Congress intended the phrase to have the meaning which it had acquired in contemporary judicial interpretation. See Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115, 60 S.Ct. 1, 84 L.Ed. 110 (1939); Hardy Salt Company v. Southern Pacific Trans. Co., 501 F.2d 1156, 1168 (10th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). Indeed, virtually all courts which have interpreted the various provisions of the Rivers and Harbors Act of 1899 have begun with the basic definition of “navigable waters of the United States” set forth in The Daniel Ball. See United States v. Appalachian Electric Power Co., supra, 311 U.S. at 406, 61 S.Ct. 291; Leovy v. United States, supra; State Water Control Bd. v. Hoffman, 574 F.2d 191 (4th Cir. 1978); Hardy Salt Company v. Southern Pacific Trans. Co., supra at 1167; United States v. Stoeco Homes, Inc., 498 F.2d 597, 608-609 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). Applying The Daniel Ball test to the waters at issue here, we agree with the District Court that Lake Minnetonka, and that portion of Minnehaha Creek above Minnetonka Mills, are not “navigable waters of the United States” as required for federal regulatory jurisdiction under § 10 of the Rivers and Harbors Act of 1899. The Daniel Ball test is bipartite; first, the body of water must be navigable in fact; and second, it must itself, or together with other waters, form a highway over which commerce may be carried on with other states. All parties agree that both Lake Minnetonka, and that portion of Minnehaha Creek above Minnetonka Mills, are navigable in fact. These waters do not, however, form themselves, or in conjunction with other navigable waters, a continued highway over which interstate commerce can be conducted. Lake Minnetonka is located entirely within the State of Minnesota, with Minnehaha Creek as its sole connecting waterway. Although the portion of Minnehaha Creek above Minnetonka Mills is navigable, the remainder of the creek is not. Lake Minnetonka and the upper, navigable portion of Minnehaha Creek are not, therefore, part of a navigable interstate waterway, and federal regulatory jurisdiction under the Rivers and Harbors Act over these waters does not exist. The Corps of Engineers contends, however, that federal regulatory jurisdiction under the Rivers and Harbors Act does not require that a body of water be part of an interstate waterway system, as long as it is a segment of a commercial highway, which may consist of water, rail or road connections. The Corps contends that since Lake Minnetonka and the upper portion of Minnehaha Creek have interstate road and rail connections, this is enough to make them “navigable waters of the United States” for the purposes of regulatory jurisdiction under the Act. We disagree. Although the first prong of The Daniel Ball test has been broadened in later Supreme Court decisions, the second prong of this test, requiring a navigable interstate linkage by water, has remained unchanged. In United States v. The Montello, 78 U.S. (11 Wall.) 411, 20 L.Ed. 191 (1871), the Supreme Court unequivocally stated: If, however, the river is not of itself a highway for commerce with other states or foreign' countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the state, then it is not a navigable water of the United States, but only a navigable water of the state * * *. Id., 78 U.S. (11 Wall.) at 415. See also Cardwell v. American River Bridge Co., 113 U.S. 205, 5 S.Ct. 423, 28 L.Ed. 959 (1885); Miller v. Mayor, Etc. of New York, supra, 109 U.S. at 395-396, 3 S.Ct. 228; Escanaba, Etc. Trans. Co. v. Chicago, supra, 107 U.S. at 682, 2 S.Ct. 185. In Hardy Salt Company v. Southern Pacific Trans. Co., supra, a case almost factually identical to the one at bar, the Tenth Circuit rejected the argument that the Great Salt Lake in Utah was a navigable water of the United States for the purpose of jurisdiction under the Rivers and Harbors Act because it was a conduit for the transportation of goods which were shipped interstate by rail. That Court stated: Although the definition of “navigability” laid down in The Daniel Ball has subsequently been modified and clarified * * *, its definition of “navigable water of the United States,” insofar as it requires a navigable interstate linkage by water, appears to remain unchanged. See Economy Light & Power Co. v. United States, [256 U.S. 113, 121-124 [41 S.Ct. 409, 65 L.Ed. 847] (1921)]; United States v. Utah, 283 U.S. 64, 75 [51 S.Ct. 438, 75 L.Ed. 844] * * * (1931); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 31-36 (N.D.Ga.1972), appeal dismissed, 474 F.2d 200 (5th Cir. 1973). Id. at 1167. Other courts which have recently considered this question have similarly concluded that entirely intrastate bodies of water, with no navigable interstate waterway linkage, are not subject to federal regulatory jurisdiction under the Rivers and Harbors Act. See State Water Control Bd. v. Hoffman, supra; United States v. Underwood, 344 F.Supp. 486, 489-491 (M.D. Fla.1972). We do not, by our holding, imply that Congress could not extend federal regulatory jurisdiction under its commerce power to include such bodies of water. See Leslie Salt Co. v. Froehlke, 578 F.2d 742, 752-753 (9th Cir. 1978); United States v. Stoeco Homes, Inc., supra at 608-609. We hold only that such jurisdiction is not conferred by the Rivers and Harbors Act of 1899. B. Jurisdiction of the Corps of Engineers Over the Construction of Dams and Placement of Riprap in Navigable Waters Under Section 404 of the Federal Water Pollution Control Act. The District Court found, and all parties agree, that Lake Minnetonka and Minnehaha Creek above Minnetonka Mills are “navigable waters” as that term is used in the Federal Water Pollution Control Act, and, thus, the Corps of Engineers has jurisdiction under § 404 of the Act, 33 U.S.C. § 1344, to regulate the discharge of dredge or fill material into these waters. The parties disagree, however, as to whether the construction of dams and the placement of riprap constitute the discharge of dredge or fill material as envisioned by that section. The District Court held that such activities do not come within the purview of § 404 because they do not constitute the discharge of a pollutant under § 301(a) of the Act, 33 U.S.C. § 1311(a). The court held that although § 502(6), 33 U.S.C. § 1362(6), includes “rock, sand [and] cellar dirt” in the definition of “pollutant,” the Act did not intend to extend federal jurisdiction to all matters which incidentally require rock or sand for construction. It held that since there was no evidence that the construction of dams or riprap significantly alter water quality, “there is no federal interest under the [Act] in the activity.” Minnehaha Cr. Watershed Dist. v. Hoffman, supra at 886. The court declared 33 C.F.R. § 323.2(n), promulgated by the Corps, invalid insofar as it purports to regulate the construction of dams and riprap, and permanently enjoined the Corps from asserting regulatory jurisdiction over these activities in Lake Minnetonka and in that portion of Minnehaha Creek above Minnetonka Mills. Id. We believe that the District Court interpreted the scope of the Act too narrowly. The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., were enacted after a Congressional finding that “the [prior] national effort to abate and control water pollution has been inadequate in every vital aspect * * * ”. S.Rep.No.92-414, 92d Cong., 1st Sess. 7 (1971), reprinted in 2 Legislative History of the Water Pollution Control Act Amendments of 1972,1415,1425 (hereinafter “Legislative History”); U.S.Code Cong. & Admin.News 1972, pp. 3668, 3674. See EPA v. State Water Resources Control Board, 426 U.S. 200, 203, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The purpose of the Amendments was broad and remedial, with their stated objective being “[the] restoration] and maintenance] [of] the chemical, physical, and biological integrity of the Nation’s waters.” Section 101(a), 33 U.S.C. § 1251(a). See State of Minn., By Spannaus v. Hoffman, 543 F.2d 1198, 1200 (8th Cir. 1976), appeal dismissed, 430 U.S. 977, 97 S.Ct. 1672, 52 L.Ed.2d 373 (1977); United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 946 (W.D.Tenn.1976). The House Committee on Public Works, in a report which accompanied the House bill, discussed this objective in the broadest possible terms: Subsection (a) of section 101 declares the objective of this legislation to be the restoration and maintenance of the chemical, physical, and biological integrity of the Nation’s waters. The word “integrity” as used is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is maintained. Although man is a “part of nature” and a production of evolution, “natural” is generally defined as that condition in existence before the activities of man invoked perturbations which prevented the system from returning to its original state of equilibrium. This definition is in no way intended to exclude man as a species from the natural order of things, but in this technological age, and in numerous cases that occurred before industrialization, man has exceeded nature’s homeostatic ability to respond to change. Any change induced by man which overtaxes the ability of nature to restore conditions to “natural” or “original” is an unacceptable perturbation. H.Rep.No.92-911, 92d Cong., 2d Sess. 76-77 (1972), reprinted in 1 Legislative History 753, 763-764. In keeping with far-reaching objectives of the Act “pollutant” is very broadly defined. Section 502(6), 33 U.S.C. § 1362(6), defines this term as follows: The term “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) “sewage from vessels” * * * or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas * * *. “Pollution” is also defined by the Act to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” Section 502(19), 33 U.S.C. § 1362(19). We believe that the construction of dams and riprap in navigable waters was clearly intended by Congress to come within the purview of §§ 301 and 404 of the Act. By including rock, sand and cellar dirt in the list of polluting substances, Congress recognized that the addition of these substances could affect the physical, as well as the chemical and biological, integrity of a waterbody. Since the construction of dams or riprap admittedly involves the placement of rock, sand or cellar dirt into the body of water, such activities would appear to come within the plain meaning of the Act. Our interpretation of the Act as subjecting the construction of dams and riprap in navigable waters to the Corps’ permitting program under § 404 is reinforced by the regulations promulgated by the Corps. The Corps has defined “fill material” under § 404 as follows: The term [“fill material”] generally includes, without limitation, the following activities: Placement of fill that is necessary to the construction of any structure in a water of the United States; the building of any structure or impoundment requiring rock, sand, dirt or other material for its construction; site-development fills for recreational, industrial, commercial, residential, and other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation devices such as rip-rap, groins, seawalls, breakwaters, and revetments, beach nourishment; levees; fill for structures such as sewage treatment facilities; * * *. 38 C.F.R. § 323.2(n) (1977). Contemporaneous construction of a statute by those charged with its administration is entitled to great respect and should be held invalid only if the administrative regulations are unreasonable or inconsistent with the statute. T. L. Hunt, Inc. v. C.I.R., 562 F.2d 532, 535-536 (8th Cir. 1977). It is evident from the legislative history of the Clean Water Act of 1977 that Congress was aware of the Corps’ interpretation of § 404, and approved of it. The Senate Environment and Public Works Committee, in commenting on the Senate bill, stated: Section 404 of the Federal Water Pollution Control Act Amendments of 1972 required a permit program to control the adverse effects caused by point source discharges of dredged or fill material into the navigable waters including: (1) the destruction and degradation of aquatic resources that results from replacing water with dredged material or fill material; and (2) the contamination of water resources with dredged or fill material that contains toxic substances. The committee amendment is designed to reaffirm this intent and dispel the widespread fears that the program is regulating activities that were not intended to be regulated. S.Rep.No.95-370, 95th Cong. 1st Sess. (1977), at 74-75, reprinted in [1977] U.S. Code Cong. & Admin.News 4326, 4399-4400 (emphasis added). Congressional intent that construction of dams and riprap in navigable waters be subject to the Corps’ § 404 jurisdiction is also evident from the language of the 1977 Act itself. In § 67(b) of the Act, 33 U.S.C. § 1344(f)(1)(B), Congress exempted the discharge of fill material from § 404 permitting requirements if the discharge of fill was done “for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures.” It is obvious that an exemption for maintenance or emergency reconstruction of recently damaged parts of structures would be necessary only if such work is generally subject to § 404 permitting requirements. We find no justification in the Act for the District Court’s conclusion that a significant alteration in water quality must be demonstrated before the addition of a particular substance to navigable waters can be classified as the discharge of a pollutant. Congr'ess has, by the inclusion of certain substances in the definition of “pollutant” found in § 502(6), 33 U.S.C. § 1362(6), determined that the discharge of these substances in navigable waters is subject to the Act’s control requirements. The Act contains no provision that the listed substances are to be classified as pollutants and, thus, subject to the Act’s control requirements, only upon a further administrative or judicial finding that their addition to navigable waters results in a- significant decrease in water quality. Nor does the fact that the listed substances may not in themselves be commonly considered “toxic” or “contaminating” change this result. As observed by the Senate Environment and Public Works Committee above, the permit program established under § 404 of the Federal Water Pollution Control Act Amendments of 1972 was intended to control the degradation of aquatic resources that results from any replacement of water with fill material, as well as the degradation that results from the discharge of dredged or fill material which contains toxic substances. See S.Rep.No.95-370, supra. We similarly find no justification in the Act for the District Court’s determination that whether the discharge of a particular substance listed in § 502(6) constitutes the discharge of a “pollutant” under the Act depends upon the purpose for which the discharge is made. Other than the specific exceptions listed in § 502(6) for sewage from vessels, and for water, gas or other material injected into a well to facilitate production of oil or gas, the Act contains no indication that the discharge of the substances listed in § 502(6) constitutes the discharge of a pollutant if the discharge is made for some purposes, and not if it is made for others. The District Court further held, and the appellees urge, that the construction of dams and the placement of riprap in Lake Minnetonka and in Minnehaha Creek should not be subject to the Corps’ § 404 permitting program because that program is duplicative of state and local regulatory efforts. As commendable as such state and local efforts might be, they cannot supplant the duty of the Corps to enforce the provisions of the Act. It is important to note, however, that under § 67(b) of the Clean Water Act of 1977, a state may administer its own permit program for the regulation of the discharge of dredged or fill materials into navigable waters, other than traditionally navigable waters and adjacent wetlands, after approval of the state plan by the Administrator of the Environmental Protection Agency. Upon E.P.A. approval of a state plan, the federal program for the regulation of the discharge of dredged or fill materials into these waters will be suspended. See 33 U.S.C. § 1344(g)~{1). If the State of Minnesota wishes to administer its own permit program for the discharge of dredged or fill material into these waters, it may make application for this authority in accordance with the statutory procedure. Until it does and until its program is approved, the Corps must fulfill its statutory obligation. C. Summary. In summary, we affirm the order of the District Court insofar as it declares that Lake Minnetonka and that portion of Minnehaha Creek above Minnetonka Mills are not navigable, waters of the United States within the meaning of the Rivers and Harbors Act of 1899, insofar as it directs the Secretary of the Army to withdraw the “Determination of Navigability” of February 14, 1975, and insofar as it permanently enjoins the Corps of Engineers from asserting regulatory jurisdiction under the Rivers and Harbors Act of 1899 over these waters. We reverse the order of the District Court insofar as it declares 33 C.F.R. § 323.2(n), promulgated by the Corps under § 404 of the Federal Water Pollution Control Act, to be invalid, and insofar as it permanently enjoins the Corps from asserting regulatory jurisdiction over the construction of dams and the placement of riprap in Lake Minnetonka and that portion of Minnehaha Creek above Minnetonka Mills under § 404 of that Act. Affirmed in part and reversed in part. Each party will bear its own costs. . The original Federal Water Pollution Control Act was passed in 1948, frequently revised and codified at 33 U.S.C. § 1151 et seq. The Act was extensively revised by the Federal Water Pollution Control Act Amendments of 1972, Pub.L.No.92-500, 86 Stat. 816 (1972). Extensive revisions were again made by the Clean Water Act of 1977, Pub.L.No.95-217, 91 Stat. 1566 (1977). . The appellees are the Lake Minnetonka Conservation District, a political subdivision of the State of Minnesota, which is charged by statute with broad responsibilities for regulating the use of Lake Minnetonka, including research regarding the lake and eliminating lake pollution; the Minnehaha Creek Watershed District, also a political subdivision of the State of Minnesota, which is statutorily charged with overall planning for the Minnehaha Creek watershed basin including Lake Minnetonka; the Lake Minnetonka Association, a nonprofit corporation dedicated to the preservation and improvement of the residential and recreational qualities of the lake; and two homeowners residing on lakeshore property. . The Daniel Ball v. United States, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871), was a libel action, brought under the Act of July 7, 1838, 5 Stat. 304, and under the Act of August 30, 1852, 10 Stat. 61. . . Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, states in its entirety: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . See, e. g., Cardwell v. American River Bridge Co., 113 U.S. 205, 5 S.Ct. 423, 28 L.Ed. 959 (1885); Miller v. Mayor, Etc., of New York, 109 U.S. 385, 3 S.Ct. 228, 27 L.Ed. 971 (1883); Escanaba, Etc., Trans. Co. v. Chicago, 107 U.S. 678, 2 S.Ct. 185, 27 L.Ed. 442 (1883); South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876); United States v. The Montello, 78 U.S. (11 Wall.) 411, 20 L.Ed. 191 (1871). . “Navigability in fact” has been broadened by later decisions of the Supreme Court to include bodies of water which were navigable in their natural state although they may not presently be so, Economy Light & Power Co. v. United States, 256 U.S. 113, 123, 41 S.Ct. 409, 65 L.Ed. 847 (1921), or which, although traditionally considered to be nonnavigable, might be made navigable with reasonable improvements. United States v. Appalachian Electric Power Co., 311 U.S. 377, 404-410, 61 S.Ct. 291, 85 L.Ed. 243 (1940) . See note 6, supra. . Utah v. United States, 403 U.S. 9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971), cited by the Corps, is not to the contrary. The sole issue in that case was whether the United States, or the State of Utah, owned the original bed of the Great Salt Lake. The Court held that Utah’s claim to the lake bed depended on whether the Great Salt Lake was navigable at the time of Utah’s admission to the union. The Court found that the lake was navigable, and upheld Utah’s claim. It determined navigability in accordance with the first prong of The Daniel Ball test: whether the lake, at the time of Utah’s admission to the Union, was used, or was susceptible of being used, as a highway for interstate commerce. The Court did not apply the second prong of The Daniel Ball test, since “the fact that the Great Salt Lake is not part of a navigable interstate or international commercial highway in no way interferes with the principle of public ownership of its bed.” Id. at 10, 91 S.Ct. at 1776. This case, thus, has no bearing on whether a body of water must be part of a navigable interstate waterway in order to be a “navigable water of the United States” under the Rivers and Harbors Act. . Indeed, it is apparent from the legislative history of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., that Congress intended to extend federal regulatory jurisdiction under that Act to navigable waters not reached under prior legislation. See Conference Report to Accompany S.2770, reprinted in 1 Legislative History of the Water Pollution Control Act Amendments of 1972, 281, 327 [hereinafter “Legislative History”]. See also remarks of Rep. Dingell, Conference Committee member, reprinted in 1 Legislative History at 250. . In light of our conclusion that the Rivers and Harbors Act of 1899 does not extend federal regulatory jurisdiction over Lake Minnetonka and the upper portion of Minnehaha Creek, we need not address appellees’ contention that the Water Resources Development Act of 1976, 33 U.S.C. § 591, would preclude such jurisdiction. . The term “navigable waters” was defined in § 502(7) of the Federal Water Pollution Control Act Amendments of 1972 to include “the waters of the United States, including the territorial seas.” This definition was not changed by the Clean Water Act of 1977. See 33 U.S.C. § 1362(7). . Section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1311(a), provides: Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342 and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. Section 404, 33 U.S.C. § 1344, allows the discharge of “dredged or fill material into the navigable waters at specified disposal sites” after the issuance of a permit for the discharge by the Army Corps of Engineers. . This exemption is inapplicable, however, if the discharge of the dredged or fill material is “incidental to any activity having as it purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced * * § 67(b), 33 U.S.C. § 1344(f)(2).

Bankers Life & Casualty Co. v. Callaway

GOLDBERG, Circuit Judge: Nineteen years ago, Bankers Life and Casualty Company (Bankers) first acquired a dredge and fill permit from the Army Corps of Engineers, issued pursuant to the Rivers and Harbors Act, 33 U.S.C. § 403. Today Bankers stands before this Court for the second time in five years, struggling to extricate itself from the morass of bureaucratic inaction. Relying on section 9(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 558(c), it asks for a declaration that its permit rights under its 1960 permit have never expired and for an injunction ordering the Corps to hold a hearing on its renewal application. The district court, in an order bare of reasons, dismissed the complaint in response to the Government’s invocation of the sovereign immunity and want of ripeness defenses. Although we find that neither of these grounds warranted dismissal, we think the trial court’s disposition was correct, for under our reading of section 9(b) of the APA, Bankers cannot prevail on the merits. I. FACTS At the risk of miring the reader in a bog of detail, we have chosen to discuss the facts, which are undisputed for the most part, fairly extensively, in order to place the complex administrative law questions in context. We begin by reproducing the account of the background of this litigation that appeared in our first opinion: The history of this effort by Bankers to turn part of the waters of Lake Worth into land may be summarized as follows. On April 17, 1957, Bankers paid the Florida State Board of Trustees of the Internal Improvement Trust Fund of Florida (the state agency which at that time could appropriately deal with the matter) the sum of $26,000 for the use of 2,500,000 cubic yards of fill. Much of the fill, approximately 1,116,170 cubic yards, was consumed in the filling of other lands by Bankers and is not part of the subject matter of this action. On February 15, 1957, Bankers applied to the Corps of Engineers for a permit to fill the property, and this was granted on or about April 29, 1957. There was nothing in the Federal Statutes at the time that required the Corps of Engineers to consider conservation, and there is nothing in the record to indicate that any study of possible ecological effects was made at that time. The permit which was issued carried the following statement on its face. “That this instrument does not give any property rights either in real estate or material, or any exclusive privileges.” It also stated that: “If the structure or work herein authorized is not completed on or before the 31st day of December, 1960, this permit if not previously revoked or specifically extended, shall cease and be null and void.” At the request of Bankers, the Corps, in December, 1960, extended the permit to December 31, 1963. The extension also contained the statement that if work authorized by the permit was not completed during the period of extension the permit would become null and void if not previously revoked or specifically extended. On December 16, 1963, the Trustees wrote the Corps a letter requesting that final consideration of Bankers’ application for another permit extension be deferred pending Bankers’ receipt of a local fill permit in accordance with Florida Statute Section 253.-124, F.S.A. The Corps agreed to defer Bankers’ permit extension and on December 27, 1963, informed Bankers that it would not be possible to grant an immediate extension at that time because of Corps policy when there was local objection. For several years no further action was taken as between Bankers and the Corps of Engineers. During this time various attempted settlements of disputes were negotiated between Bankers, the State of Florida and the Village of North Palm Beach concerning the title of the submerged lands sought to be filled. On December 6, 1968 and March 17, 1969, Bankers corresponded with the Village in an effort to obtain a local fill permit. In June, 1969, the Village informed Bankers that a permit would be granted; however, shortly thereafter on July 10, 1969, the Village undertook to rescind this action. By letter dated July 10, 1969, the same date as the meeting of the Village Council rescinding the action of June, Bankers addressed a letter to the Corps of Engineers stating that a permit had been received by letter from the Village of North Palm Beach and stating that “in as much as there were no other objections to the extension of the permit, as stated in your letter of December 27, 1963, to us, I trust this removes the final obstacle and you will grant the extension requested promptly.” The Corps of Engineers, obviously not desiring to resolve any underlying disputes as to whether the requirements referred to in the original request to the Corps from the Trustees had all been met, responded by letter of July 18, stating “it will still be necessary, however, that the written approval of the Trustees of the Internal Improvement Fund be furnished before further action can be taken on your application.” The status of the matter thus was that the state agency had requested that the application be held up in December, 1963. The Corps of Engineers had held it up, indicating that once the matters referred to in the state’s letter were cleared it would be the purpose of the Corps of Engineers to proceed with an issuance of the extension. However, it was not until more than five years later that Bankers undertook to inform the Corps that it considered the conditions previously existing to have now been satisfied. The Corps of Engineers, quite appropriately, we think, deferred its action until it obtained a “go ahead” from the Trustees, the state body which had originally requested the deferment of the issuing of the permit. Bankers Life & Casualty Co. v. Village of North Palm Beach, 5 Cir. 1972, 469 F.2d 994, cert. denied, 1973, 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307 (hereinafter referred to as Bankers I). Thus, to recapitulate, as of December 31, 1963, Bankers was told that it needed two permits in order to conduct its fill operations legally: the Rivers and Harbors Act permit, which it had already held for over six years, had to be renewed, and a local permit from the Village of North Palm Beach had to be secured. Since the Corps refused to grant an extension of the Rivers and Harbors Act permit until the Trustees officially withdrew their objection, and since Bankers took the position that all legal obstacles had been removed, the parties had reached an impasse which led to Bankers’ first lawsuit. II. Bankers I Bankers’ theory in its first effort to assure that it held a valid federal permit proceeded as follows: (1) But for the trustees’ intervention, the Corps would have extended the permit in December 1963; (2) the Trustees, as a matter of Florida law, had no power to require a local permit under Florida Statutes § 253.124; and therefore, (3) the original intervention was without effect, and the Corps should be compelled to renew the 1960 permit or issue a new permit. The district court agreed with this reasoning, and entered two significant orders: it directed the Corps to grant the Rivers and Harbors Act permit without reference to local permits or ecology; and it decreed that Bankers had the right to fill without a section 253.124 permit, and that upon completion of the filling project, title in the land should be quieted in Bankers. This Court reversed on both points. First, it held that even if the Trustees had been wrong as a matter of state law, it was still error to require the Corps to issue its permit. Primarily, this was because the grant or denial of a permit is not a purely ministerial act. Over the time period since the Trustees first voiced their objection, the Corps had acquired new obligations to consider various environmental factors, all of which applied to Bankers. Rather than filing a formal application with the Corps, Bankers chose to file a lawsuit. Rejecting this approach, the Court held that “[t]he matter was not ripe for court action because the official of the government, who was empowered to act, had not been given an opportunity to perform the duties imposed on him by the federal statutes.” 469 F.2d at 999. With regard to the state law rulings the district court had agreed with the two premises offered by Bankers: that the Trustees’ request was the sole impediment to renewal, and that the Trustees had no power to block Bankers’ permit. It based the latter holding on its determination that Florida Statute section 253.124, which was added by Laws of Florida, Act of 1957, Ch. 57-362, § 4, did not apply to Bankers by virtue of the grandfather clause contained in section 11 of the Act of 1957. At this juncture, it becomes important to understand some of the intricacies of Florida law relating to riparian owners’ rights in submerged lands. As described in Bankers I, at 469 F.2d 997 n. 3, the applicable law prior to the Act of 1957 was the Butler Act of 1921. Under the Butler Act, riparian owners could by the act of filling submerged lands up to a certain line acquire actual title to the new land. The Act of 1957 abolished this procedure and declared that title to the submerged lands was in the Board of Trustees of the Internal Improvement Trust Fund. See Florida Statutes § 253.12 (1975). Before the Trustees can convey any interest in the submerged land, the applicant must secure a fill permit. See id. § 253.124. It was this permit to which the Trustees referred in their letter of December 16, 1963. Bankers’ assertion that the Trustees were not authorized to require a section 253.124 permit relied on the exemption contained in Laws of Florida, Act of 1957, ch. 57-362, § 11, which provided that the provisions of Chapter 57-362 would not “affect or apply to the construction of islands or the extension or addition to existing lands which was commenced or application for permit to fill which was filed with the United States corps of engineers prior to [June 11, 1957] . . . Bankers’ original application for a federal permit had been filed on February 15, 1957, and the permit had been granted on April 29, 1957 — both dates well before that mentioned in the statute. Two critical points, however, were in dispute — one factual and one legal. The factual dispute concerned whether Bankers had actually started filling the land prior to June 11, 1957; the legal dispute was whether the exemption ceased to be available when the 1957 permit expired in 1960, as a matter of Florida law. The district court’s decree quieting title in Bankers resolved the exemption question in Bankers’ favor. This Court found it unnecessary to reach the issue because of the factual dispute. Thus, on remand the district court was directed to dismiss the federal defendants and to conduct further proceedings on the title question — possibly to certify that issue to the Florida courts. III. Bankers II Taking this Court’s advice, Bankers turned to the state courts for adjudication of the question whether it was entitled to the benefits of the grandfather clause in the Act of 1957. On March 8, 1973, Bankers filed its complaint in the instant case. Invoking jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., Bankers made the following allegations: (1) it was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law for the Corps to defer action on the renewal permit until a local permit was secured [5 U.S.C. § 706(2)(A)]; (2) the Corps, in contravention to 5 U.S.C. § 555(b), has not proceeded to conclude the matter presented to it; (3) the Secretary of the Army, the Chief of Engineers, and the District Engineer have unlawfully withheld or unreasonably delayed agency action [5 U.S.C. § 706(1)]; (4) Bankers’ rights under the original permit have never expired [5 U.S.C. § 558(c)]; and (5) because a refusal to renew is the equivalent of “withdrawal, suspension, revocation, or annulment,” Bankers is entitled to a hearing pursuant to 5 U.S.C. § 558(c). By way of relief, Bankers asked for declarations that there has been unreasonable delay and that the permit rights never expired, and for an order requiring the Corps to hold a hearing on its application for renewal. Before discussing the district court’s dismissal of this complaint, we think it appropriate to stress that this is not the same lawsuit as Bankers I, though some of the allegations overlap. Points (1) through (3), all attacking the Corps’ delay in processing the renewal application, do seem to be so close to the first stage as to be governed by it. To the extent that these paragraphs ask only that the Corps rule now on the application for renewal one way or another, our discussion of Bankers’ present right to a hearing will be dispositive. Points (4) and (5) raise issues of statutory interpretation that were not considered in Bankers I. Both rely on section 9(b) of the APA, 5 U.S.C. § 558(c), which provides as follows in pertinent part: Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given— (1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency. Point (4), which asserts that Bankers’ rights under its 1960 permit are still in effect, relies on the last sentence of the quoted portion. Far from being a request to order the Corps to act on the application, point (4) merely raises the question whether this portion of the APA conferred interim rights on Bankers pending the Corps’ decision. Point (5), which asserts a right to a hearing, relies on section 558(c)(2). Again, Bankers is not asking the Court to order the Corps to rule one way or another; it is simply maintaining that the APA gives it a right to a hearing at this time since its permit was not renewed. Both of these issues, therefore, are narrow questions of statutory interpretation. They are not disguised reruns of the first case. The Corps moved to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure on grounds of lack of jurisdiction due to the sovereign immunity bar and failure to state a controversy that is ripe for judicial decision. After a flurry of memoranda had exchanged hands, the court granted the motion, in an order hardly to be faulted for prolixity. We assume that the court’s granting of defendants’ motion indicated its agreement with one or both of the points raised in the motion to dismiss and structure our discussion accordingly. A. Sovereign Immunity We need not pause long over the sovereign immunity defense — indeed, the Corps has not even bothered to pursue this argument on appeal. Since Estrada v. Ahrens, 5 Cir. 1961, 296 F.2d 690, the law of this Circuit has been that “the [APA] . . . makes a clear waiver of sovereign immunity in actions to which it applies.” 296 F.2d at 698. See United States v. Joseph G. Moretti, Inc., 5 Cir. 1973, 478 F.2d 418, 432. Cf. Warner v. Cox, 5 Cir. 1974, 487 F.2d 1301, 1305 (APA does not constitute waiver of sovereign immunity in suit seeking money damages against United States.) Thus, the real question is whether the review provisions of the APA apply to the type of agency action involved here, which brings us to the second ground of the motion to dismiss. B. Ripeness Our discussion of the ripeness vei non of the two questions we have indicated were before the trial court must begin with Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681. Abbott Labs established a method for analyzing cases in which the timeliness of judicial review poses a problem. First, the court must determine whether Congress in the governing statute intended to preclude pre-enforcement review of the agency action at issue. In this connection, it is essential to give weight to the general presumption favoring reviewability. See Dunlop v. Bachowski, 1975, 421 U.S. 560, 566, 568, 95 S.Ct. 1851, 1857-58, 44 L.Ed.2d 377, 386, 387; Chicago v. United States, 1969, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340; Citizens Comm, for the Hudson Valley v. Volpe, 2 Cir., 425 F.2d 97, cert. denied, 1970, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256; Textile and Apparel Group v. FTC, 133 U.S.App.D.C. 353, 410 F.2d 1052, 1054, cert. denied, 1969, 396 U.S. 910, 90 S.Ct. 223, 24 L.Ed.2d 185. If the statute does not preclude review, the court must consider whether the controversy is “ripe” for judicial resolution. This determination contains two aspects: the fitness of the issues for judicial decision, and the hardship to the parties of withholding court consideration. Fitness of the issues for judicial decision also depends on two factors: whether the issue is a purely legal one and whether the agency action challenged is “final,” taking a flexible view of that term of art. Hardship to the parties contemplates an immediate and direct impact; a certain expectancy of compliance with the agency’s action must be present. The dilemma of complying with extremely onerous regulations or risking criminal penalties for noncompliance will often be a strong factor in favor of immediate review. E. g., Abbott Laboratories v. Gardner, supra, 387 U.S. at 152-53, 87 S.Ct. at 1517, 18 L.Ed.2d at 693, 694; Frozen Food Express v. United States, 1956, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 730. “THIS CAUSE having come before the Court in motion to dismiss by defendant Robert F. Foehlke [sic], Secretary of the Army, et al., and the Court having considered the record in this cause, and being otherwise duly advised, it is ORDERED AND ADJUDGED that said motion is granted.” (Italics denote typed words; remainder appeared on a printed form.) We note that the district court was technically justified in adopting this method of disposition, since Rule 52 provides that “[fjind-ings of fact and conclusions of law are unnecessary on decisions of motions under Rulejs] 12 . . . .” 1. Status of the 1960 Rivers and Harbors Act permit. Applying these principles to the question of the present vitality of the 1960 permit, we find that the issue is ripe for decision. Since the dredge and fill permit underlying this controversy was issued pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., our first question is whether Congress intended to preclude judicial review under that statute. The Second Circuit, noting that the statute itself was silent both as to availability of judicial review and as to manner of appeal, concluded that review was available under the APA. Citizens Comm, for the Hudson Valley v. Volpe, supra, 425 F.2d 97. Finding no reason to disagree with that conclusion, we hold that agency action under that Act is reviewable. Whether the controversy is ripe for resolution depends, in part, on what “agency action” is at issue. Section 551(13) of the APA defines “agency action” to be “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Section 551(9) defines “licensing” to include “agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license.” These definitions are made applicable to the judicial review chapter of the statute through section 701(b)(2), 5 U.S.C. § 701(b)(2). Finally, section 704 provides that “[ajgency 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.” We think it fair to say that the Corps of Engineers has taken the firm position that Bankers’ rights under its 1960 permit were not extended by virtue of 5 U.S.C. § 558(c).® This position — that the permit rights expired at the end of 1963 —can be characterized as “agency process respecting the . . . renewal . of a license,” since “agency action” can encompass the denial of the requested action as well as the grant thereof. Review of this “agency action” presents a question that is purely legal, i. e. does section 558(c) prevent the expiration of rights under a Rivers and Harbors Act permit in a situation where local authorities have indicated that a local permit is necessary. Furthermore, the requirement of “final” agency action is satisfied here. The action is “final in the sense that it is an at least firm (and perhaps binding) adoption of a position by the agency with regard to a course of conduct on the part of a member of the regulated industry which does not. require further administrative action other than the possible imposition of sanctions.” Northeast Airlines, Inc. v. CAB, 1 Cir. 1965, 345 F.2d 662, 664. Were Bankers to test the correctness of its position, it would expose itself to possible criminal penalties under section 12 of the Rivers and Harbors Act, 33 U.S.C. § 406. Judicial review at this time would not “disrupt the orderly process of [agency] adjudication,” and it cannot be gainsaid that “rights or obligations have been determined” by the Corps’ position. Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Trans-Atlantic, 1970, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203, 210. The hardship to the parties of withholding consideration would also be great. If Bankers is right, then it would be able to commence filling operations immediately. Because of the criminal sanctions in the Act, it is highly unlikely that Bankers will choose to test its position by action. If Bankers is wrong, then at least it will learn what the true status of its permit is and what steps it must take to secure a valid permit. Viewing all these factors realistically, we find that the hardship factor of the Abbott Labs test is satisfied. Thus, having found hardship, final agency action, a purely legal question, and no statutory bar to judicial review, we hold that the question whether the 1960 permit rights were extended by force of 5 U.S.C. § 558(c) was and is ripe for judicial resolution. 2. Entitlement to an administrative hearing on the application for renewal. Like the permit status issue, this point relates to the Rivers and Harbors Act. It also involves the regulations pertaining to permit applications before the Army Corps of Engineers, 33 CFR § 209.120 (1975). Since nothing precludes judicial review of these regulations generally, we move directly to the question of ripeness. The Corps’ position on this point is that Bankers’ application for renewal is incomplete, and therefore that no hearing is required now. However the legal basis for this conclusion is characterized — want of ripeness, or statutory construction of 5 U.S.C. § 558(c)(2) — it is clear that the Corps is refusing to hold a hearing now. Thus, again we find in the Corps’ unequivocal position the sort of “agency action” that could be reviewed by a court. The questions raised by Bankers are again purely legal ones: what does section 558(c)(2) mean, and does it apply to refusals to renew? If this is the kind of situation in which a party is entitled to a hearing before the agency, this Court could order such a hearing to be held. For the same reasons as we found the requisite finality for the status issue, we find here that the agency’s firm position on Bankers’ lack of a right to a hearing presents final agency action. Finally, the hardship to the parties of withholding consideration would be great. Bankers has no other forum to which it can turn to vindicate its asserted right. We therefore find that this claim is also ripe for judicial resolution. Although normally a conclusion that the lower court erred in dismissing a case on ripeness grounds would require us to reverse and remand for further proceedings on the merits, in the unique circumstances of this case we think it best to decide the issues at this time. See Independent Broker-Dealers’ Trade Ass’n v. SEC, 142 U.S.App.D.C. 384, 442 F.2d 132, 135, cert. denied, 1971, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57; Textile and Apparel Group v. FTC, supra, 410 F.2d at 1053. With the important facts undisputed, and the issue purely one of statutory interpretation, little could be gained by further development of the record in the district court. Conversely, resolution of the federal issues might be of some aid in the adjudication of the state title questions. Thus, we reject the parties’ invitation to abstain from deciding the merits of the controversy and turn to the questions presented. C. The Merits 1. Status of the 1960 Rivers and Harbors Act permit. Bankers relies heavily on the language of section 558(c) providing that when the licensee has made a timely and sufficient application for renewal, a license with reference to an activity of a continuing nature does not expire until the agency has finally ruled on the application. Bankers also points to a letter which it received from the District Engineer, in which the Corps said “[t]he lapse in the permit will have no effect insofar as the Corps of Engineers is concerned,” and to the fact that under the Corps regulations then in effect the District Engineer had no authority to refuse or disapprove an application. See 33 CFR § 209.120(c) (1968). On the other hand, the permit itself clearly stated that “this permit if not previously revoked or specifically extended, shall cease and be null and void.” (Emphasis added). In addition to relying on this language, the Corps also argues that section 558(c) does not apply unless the application is sufficient. At the time the renewal application was filed, it was insufficient because it lacked the required local consents. As time passed, it became more incomplete with the addition of new laws requiring the Corps to take ecological considerations into account for dredge and fill permits. It might be possible to dispose of this point by relying solely on the language of the permit. Clearly, the permit was never specifically extended; thus, by its own terms, it became null and void upon the date of expiration. However, we need not stand or fall on this ground, for we believe that section 558(c) was not designed to cover this kind of situation. First, we note that the Corps could properly take local opposition to a fill project into account. We need not decide whether local objections could always operate as a veto over Corps projects, no matter how insubstantial or frivolous, because that case is not before us. Rather, we have the body in Florida with ultimate responsibility over the use of public lands, the Trustees of the Internal Improvement Trust Fund, informing the Corps that the law of Florida requires a local permit for fill work. In almost all the recent environmental legislation, Congress has indicated its desire for federal agencies to cooperate closely with state authorities. See, e. g., Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251(b), (e); National Environmental Policy Act, 42 U.S.C. §§ 4331(a), 4332(2)(C); Clean Air Act Amendments of 1970, 42 U.S.C. § 1857a(a). Under all the circumstances, we believe that the Corps’ policy of deference to local objections was justified in the case now before us. Thus, Bankers’ application for permit renewal contained one deficiency at the time the Corps had to decide whether to extend the permit. Judge Friendly described the purpose and effect of the section of the APA at issue in the following manner: The final sentence [of § 558(c)] provide^] that if the licensee has timely sought renewal, the valuable rights conferred by a license for a limited term shall not be lost simply because the agency has not managed to decide the application before expiration of the existing license. As Mr. Justice Burton said, dissenting in Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S. 436, 444-445, 77 S.Ct. 999, 1005, 1 L.Ed.2d 963 [, 969] (1957), in a passage with which the majority did not express disagreement: The policy behind the third sentence of § 9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal. See also Attorney General’s Manual on the Administrative Procedure Act 91— 92 (1947). County of Sullivan v. Civil Aeronautics Board, 2 Cir. 1971, 436 F.2d 1096, 1099. This reasoning suggests that the kind of case that the statute was meant to cover was that in which time exigencies within the agency prevent it from passing on a renewal application, where an activity of a continuing nature such as radio broadcasting or shipping services is involved. By contrast, in the case before us time exigencies played no part in the Corps’ refusal to renew. Instead, a substantive problem arose with the application, which had to be resolved before the Corps could grant a new permit. The Corps’ conscious decision not to renew activated the expiration provisions of the permit. Thus, after the period specified in the 1960 permit expired, all rights under the permit expired with it. 2. Entitlement to an administrative hearing on the application for renewal. — Bankers’ second assertion is that section 558(c)(2) of the APA entitles it to a hearing before the Corps at which it is given an opportunity to demonstrate or achieve compliance with the requirements for a dredge and fill permit application. The statute provides that “the withdrawal, suspension, revocation, or annulment” of a license is lawful only after notice and a hearing. It appears to contemplate use of the notice and hearing procedure only when some sanction is to be imposed on the licensee. Cf. Blackwell College of Business v. Attorney General, 1971, 147 U.S.App.D.C. 85, 454 F.2d 928, 933-34; H. P. Lambert Co. v. Secretary of Treasury, 1 Cir. 1965, 354 F.2d 819, 821 n.2. The alternative construction of the statute, urged by Bankers, would provide that the “withdrawal” of a permit or license includes a failure to renew an existing license. For several reasons, we believe that the former reading of the statute is truer to its language and more desirable as a policy matter. A paraphrase of the provision taken as a whole might read “before an agency can institute proceedings to withdraw, revoke, etc., an existing license, it must provide the licensee with notice in writing of the offending conduct and a hearing at which the licensee can refute the charges.” Read this way, it is clear that Bankers is not entitled to a hearing under this section of the Act. As a policy matter, this is a desirable result. Assuming that an applicant wanted to challenge some of the requirements for an application contained in the agency’s regulations, the question arises, at what point would the application be complete enough to deserve a hearing? If the party wanted to try to enjoin the agency from enforcing a specific regulation that it asserted was beyond the agency’s power to promulgate, then it would be free to bring a suit for pre-enforcement review or injunction in the district court. Challenges to application requirements raise a unique problem in administrative law, since the agency could refuse to consider the challenge until the regulations were complied with and the case moot. However, this dilemma does not convert section 558(c) into a statute giving the right to a hearing on application regulations. Despite Bankers’ lamentations that it does not know what the Corps wants, we think that the application requirements set out in 33 CFR § 209.120(h) (1975) are reasonably clear. Similarly, the state authorities would probably be happy to tell Bankers what local permits are required. As long as the possibility of a pre-enforcement challenge to specific objectionable portions of the regulations exists, we cannot say that Bankers will forever be denied its day in court. As the case now stands, Bankers has a choice between transiting its way through the terrain of the Corps’ application regulations or attempting to challenge them. IV. Conclusion This is a case of much suspension, and little animation. Without throwing any mud on any litigant’s face, we note that this case has had more backing than filling. Many of Bankers’ problems are swamped by history, but Job-like sufferings and patience cannot change the law as we find it in the Administrative Procedure Act, the federal environmental legislation, and the Florida laws pertaining to submerged lands. We cannot carve exceptions from the APA for Bankers because the history of its litigation is tortuous and tortured. In the interest of efficient judicial administration (if, indeed, one can speak of efficiency with a straight face with reference to a case now nineteen years old), we have deemed it best to rule on the merits of Bankers’ claims under the Administrative Procedure Act. If Bankers’ earnest protestations at oral argument that it desired only to be enlightened as to what it must do in order to have the right to fill its land are given credence, then our disposition should satisfy all concerned. Though the district court was mistaken in its conclusion that the case was unripe, our consideration of the fully matured issues has led us to reject Bankers’ claims. Since our affirmance of the district court’s order is based on our opinion of the merits we note that the dismissal should be one with prejudice. Now that the administrative path has been cleared of underbrush, both parties should proceed to discharge their respective responsibilities for achieving a solution without sloth and delay. Let not any further glacial inertia mark this case as a relic of the Pleistocene epoch. AFFIRMED. . Bankers Life & Casualty Co. v. Village of North Palm Beach, 5 Cir. 1972, 469 F.2d 994, cert. denied, 1973, 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307. . In this Court’s first opinion, a discrepancy between the parties’ stipulation and the district court’s findings of fact was noted on this point. This Court therefore found the district court’s finding clearly erroneous. . Bankers instituted a suit for a declaratory judgment in the Florida Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida. On January 8, 1975, that court issued its judgment declaring that Bankers was entitled to fill the bottom lands without first securing a permit from the Trustees in accordance with section 123.124. The Trustees filed their notice of appeal from that decision to the District Court of Appeal of Florida on February 24, 1975. To date, that court has not rendered a decision, although at oral argument counsel informed us that the case was argued on October 8, 1975, before the appellate court. Whichever way that court decides, however, the unsuccessful party of course has the option of appealing to the Florida Supreme Court. . The complaint was originally filed with the United States District Court for the District of Columbia. On defendant’s motion for a change of venue pursuant to 28 U.S.C. § 1404(a), the case was transferred to the Southern District of Florida. . The order read: . For example, in the letter written by the Corps to Bankers on December 27, 1963, the Chief of Operations referred unequivocally to the “lapse in the permit.” Similarly, in the present lawsuit the Corps attached to its Memorandum in Support of Defendant’s Motion to Dismiss a letter from the District Engineer to Bankers which clearly demonstrated the Corps’ belief that Bankers has no permit rights currently. The letter also questioned the present sufficiency of the application for renewal. See part III. C.I., infra. . Cf. City of Chicago v. United States, 1969, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340 (no distinction between “negative” and “affirmative” orders); Environmental Defense Fund, Inc. v. Hardin, 1970, 138 U.S.App.D.C. 381, 428 F.2d 1093 (failure to act is equivalent of denial of request). . Ordering a hearing is, of course, quite different from ordering a permit to be issued, since ordering a hearing does not tell the agency personnel how to exercise their discretion. . Bankers seems to be arguing that it should have a hearing at which the Corps tells it what to include in the application for renewal. This position assumes that the Corps might change the requirements from those printed at 33 CFR § 209.120 (1975), in response to Bankers’ legal arguments. In our opinion, the record clearly shows that this is a futile hope. . The pendency of the state litigation on the land title question (see note 3, supra) does not render these claims unripe. The claim about the non-expiration of federal permit rights is a pure question of federal law. It is our view that the status of the permit had to be determined as of the time the Trustees entered their objection to renewal. We note that this objection was based on an honest view of the applicable Florida law, which this Court has already held the Trustees could reasonably have adopted. Bankers I, 469 F.2d at 1001. Whether or not the Trustees’ position is ultimately upheld thus will not affect the resolution of the question before us. See note 12, infra, and accompanying text. Likewise, Bankers’ right to a hearing does not depend on the outcome of the state litigation. As we understand the argument, Bankers asserts that it is entitled to a hearing before the Corps at which it can demonstrate that it has complied with all lawful requirements for an application and can attack those requirements that it considers unlawful. Its argument about the Trustees’ power to block the federal permit is only one of a number of challenges to the application regulations. Thus, if Bankers wins in the state courts, it would still want to present to the Corps questions such as which sections of the Federal Water Pollution Control Act apply to it (33 U.S.C. § 1251 et seq.). If the Trustees win in the state courts, Bankers would simply add its challenge to the list of questions for the Corps to adjudicate. . Our first opinion in this case held that the more stringent requirements of the present apply to Bankers. See 469 F.2d at 998. The strong national commitment to improvement of the environment also argues strongly for application of new laws such as the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., wherever possible. . In order to avoid the defect of unlawful delegation to the state authorities, it might be necessary to require the Corps independently to evaluate the merits of the local objection. However, since the objection of the Trustees here was clearly a substantial one, we need not decide the extent of any such duty in this case. . A possible alternative ground for our holding is that filling land is not an activity of a continuing nature, but is instead a project that will end as soon as all the land is filled in. Radio broadcasting, in contrast, could conceivably go on indefinitely. Since section 558(c) applies only to activities of a continuing nature, it would not extend Bankers’ rights under the fill permit. . We certainly cannot say that all of Bankers’ points are frivolous in this regard. For example, the Corps requires certifications under section 401 of the Federal Water Pollution Control Act, 33 U.S.C. § 1341, for a dredge or fill permit. 33 CFR § 209.120(h)(2)(ii) (1975). Bankers contends that this regulation goes beyond the statutory authorization, since section 404 of the Act deals with dredge and fill permits, and it contains no' certification requirements. See 33 U.S.C. § 1344. This raises a serious question about the scope of the regulation which might well be justiciable in a proper court proceeding. We see no need, though, to require the Corps to pass on this matter again, under some sort of primary jurisdiction theory. The choice is up to Bankers to comply with the regulations or to try to challenge them.

Natural Resources Defense Council, Inc. v. Callaway

MANSFIELD, Circuit Judge: The Natural Resources Defense Council, Inc., Environmental Defense Fund, Inc., The Long Island Sound Taskforce, The Fishers Island Civic Association, Inc., along with other environmental and citizen groups, brought this action in the District of Connecticut against the Secretary of the Army, the Secretary of the Navy and other related federal officials seeking declaratory and injunctive relief against further dumping by the United States Navy of highly polluted dredged spoil at the New London Dumping Site in Long Island Sound. The complaint charges violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (“NEPA”), and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. (“FWPCA”). The State of New York has been allowed to intervene as an appellant. The action arises out of a project undertaken by the United States Navy at New London, Connecticut. In order to accommodate a new class of submarine, the SSN 688 class, at the Navy’s Submarine Base in Groton, Connecticut, the Navy has determined that it is necessary to dredge the Thames River from Long Island Sound to the north boundary of Groto.n, a distance of 7.5 miles. The new class of submarine is larger and requires a greater depth of water for operations than previous classes and the Navy is accordingly widening and deepening the existing Thames River Channel. This dredging operation requires the removal from the Thames River bottom and disposal of approximately 2.8 million cubic yards of highly polluted material containing volatile solids, industrial wastes and Kjeldahl nitrogen. The dredging project began on August 19, 1974, and the first phase of dredging, involving the lower reaches of the river, is now complete. The second phase, involving the upper portion of the channel, is scheduled to commence in March 1976 and is to be completed before the arrival of the new submarines at Groton, scheduled for later in 1976. The parties agree that the material to be dredged in the second phase contains considerably larger quantities of pollutants than the material already dredged. Plaintiffs and intervenors do not object to the dredging project itself, choosing to restrict their legal challenge to the Navy’s use of the New London Dumping Site as the disposal area. All parties agree that, because the polluted material is likely to cause great harm to the ocean ecosystem if allowed to disperse after being dumped, it is important that if it is dumped in the ocean it be deposited at a “containment site,” an area of the ocean floor where currents and other water movement will not cause it to move or disperse. The underlying disagreement between plaintiffs and the government defendants is over the relative merits of the New London Dumping Site as a containment site and the existence of more suitable sites for disposal both in the ocean and on land. Plaintiffs adduced substantial evidence that because of the shallow depth of the site, the fact that the bottom currents there were higher than at some alternative sites, and the prospective impact of storms, the sludge dumped at the New London Dumping Site, although it would remain in place for a while, would eventually break up and disperse to the northwest where it would contaminate and destroy the first nurseries and marine resources on the coast. Plaintiffs raised three principal claims before the district court: 1) that the Army Corps of Engineers issued a dumping permit to the Navy in violation of § 404 of FWPCA, 33 U.S.C. § 1344, 2) that the Navy and the Corps failed to comply with NEPA in reaching the decision to dump at New London in that a) the Corps, not the Navy, was the proper party required to prepare the necessary Environmental Impact Statement (“EIS”), b) the EIS inadequately discussed other dumping projects and alternative dumping sites, e) the NEPA decision-making procedures were shortcircuited, and d) there were errors in the EIS, and 3) that the substantive decision by the Navy to use the New London site was arbitrary and capricious. In a thorough and carefully considered opinion the district court, M. Joseph Blumenfeld, Judge, rejected all of these contentions, holding that it lacked jurisdiction under FWPCA, that the Navy was the proper EIS author and that the EIS was adequate in all respects. The plaintiffs-appellants now take issue with all of the district court rulings except those dealing with the alleged errors in the EIS. We hold that jurisdiction exists under FWPCA and that the discussion in the EIS of other dumping projects and alternative dump sites was inadequate under NEPA. Accordingly, we reverse and remand as to those issues. Since there is a substantial risk that additional amounts of highly polluted spoil will be dredged and dumped in non-compliance with the FWPCA and NEPA we direct that the Navy be enjoined from such activity until it has satisfied the requirements of these laws. In all other aspects we affirm the district court’s opinion. DISCUSSION 1. Jurisdiction Under FWPCA. Under § 404 of FWPCA, 33 U.S.C. § 1344, the disposal of dredged material at the New London site requires a permit from the Army Corps of Engineers. Appellants argued below that the permit for this dumping was issued in violation of § 404(b) of FWPCA because it was not, as required by that section, issued in accordance with dumping guidelines developed by the Administrator of the Environmental Protection Agency (“EPA”). The district court never reached the merits of this contention, however, as it held that it lacked jurisdiction under § 505(a) of FWPCA, 33 U.S.C. § 1365(a), which authorizes citizen suits for violation of the statute. Section 505(b) places certain restrictions on the bringing of lawsuits under § 505(a), including the requirement that no suit or action be commenced “prior to sixty days after the plaintiff has given notice of the alleged violation” to the EPA and other interested parties. Such notice was given by the plaintiffs herein on July 15, 1974, but the action was commenced on September 3, 1974, less than 60 days later. The district court reasoned that the 60-day waiting period is a jurisdictional prerequisite to suit and therefore dismissed the claim. As conceded by the government, the district court’s dismissal of the FWPCA count on this ground turns out, by reason of our later decision in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-39 & n. 62 (2d Cir. 1974) petition for certiorari filed 43 U.S.L.W. 3648 (U.S., May 9, 1975) (No. 74-1413), to have been in error. We there held that the 60-day notice provision is not an absolute bar to earlier suits by private citizens under FWPCA. Aside from the issue of whether less than 60 days will satisfy § 505(b) so as to permit a suit to be brought under § 505(a), it was held in Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 698-703 (D.C.Cir.1975), cited with approval and followed in our decision in Conservation Society, that § 505(a) is not the exclusive jurisdictional basis for suit under FWPCA and that jurisdiction of claimed violations of FWPCA can exist under either the general federal question statute, 28 U.S.C. § 1331, or the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The result is to give effect to the saving clause of § 505(e) of FWPCA, 33 U.S.C. § 1365(e), which is intended to preserve all other rights prospective citizen plaintiffs may have under other statutes to seek enforcement of FWPCA provisions. The jurisdiction found to exist under § 1331 for NEPA purposes also exists for FWPCA purposes. The government argues that, even if there is jurisdiction over the FWPCA claim, there has been no violation of § 404(b). The only guidelines that have been issued to date by the EPA for use under § 404(b) are the Ocean Dumping Criteria, 40 C.F.R. Part 220 et seq., which are not directly applicable to this dumping project in inland waters. (Long Island Sound has been deemed by the government to be inland waters, both in nautical charts and under a definition found in § 3(b) of the Marine Protection, Research, and Sanctuaries Act of 1972, Pub.L. 92-532, 86 Stat. 1052). Because of this lack of guidelines, the government argues, there cannot have been any failure by the Corps to issue the dumping permit in violation of EPA guidelines. However, we are not here dealing with non-existent guidelines. In its notice of intent to issue the dumping permit to the EPA, the Corps made specific reference to the Ocean Dumping Criteria, stating that § 227.64 thereof, which prohibits dumping in areas where prevailing currents would carry the dumped material into nursery, fishing or shoreline areas, would not be violated by disposal at the New London site. Having relied at least in part upon the standards of the Ocean Dumping Criteria to support its selection of the New London site, the Corps cannot now be heard to say that those standards are irrelevant to its issuance of the permit for this dumping project. By its own use of the standards it has made them applicable to this case. The federal courts therefore have the power and the duty to review the application of the Criteria to the extent that they were used by the Corps, cf., e. g., Feliciano v. Laird, 426 F.2d 424, 429 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141, 145-46 (2d Cir. 1969). The record also contains evidence that would support findings to the effect that dumping at the New London site violates the Ocean Dumping Criteria as set forth in § 227.64. Plaintiffs introduced considerable proof to the effect that because of the depth and ocean current conditions in the area the highly polluted dredged spoil, despite its initial cohesiveness as a gelatinous mass, would eventually break up and drift northwestward to the Connecticut coast where it would destroy productive fishing and shellfish nurseries and spawning. See testimony of Dr. W. Frank Bohlen, App. 126-27, 131-35, 159-60, 478-80 and Exs. 6A, 13. In response the Navy relies principally upon a study of currents in the area, which plaintiffs label as of little or no value because it was limited to a 25-hour period. App. 303, 451, 497-500. The Navy also relies upon a current-monitoring program that it has been required by EPA to undertake. However, plaintiffs point out that since the polluted spoil would not break up and disperse to the northwest for a few years the monitoring program would not avoid the damage, which would already have been done and would be irreversible once the dumping had been completed. Furthermore, say the plaintiffs, the monitoring program will be terminated in two years, which is too soon to determine the long-term polluting effect on coastal fisheries of the dumping at the New London site. Rather than resolve these FWPCA issues upon the record as it stands we prefer to remand the case for findings by the district court which will have the benefit not only of observation of the witnesses who have already testified but also of such additional expert testimony and documentary proof as the parties may offer. Furthermore, should the district court conclude that further Navy dumping on the New London site would violate the Ocean Dumping Criteria which have been adopted and applied as guidelines it may then be called upon to determine whether the Corps is able to sustain its burden of showing that selection of the New London site, as distinguished from some other alternative site which satisfies the Criteria, is justified because of the New London site’s economic impact on navigation and anchorage. 2. Authorship of the EIS. The plaintiffs’ next contention concerns the authorship of the EIS, which was prepared by the Navy. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332 (2)(C), requires that an EIS be prepared “by the responsible official” for the federal project in question. Plaintiffs argue that the Corps of Engineers through its power to grant or deny permits, 33 U.S.C. §§ 403 & 1344, controlled the environmental decisions connected with the project, including the dredging, designation of disposal site, and dumping of the spoil, whereas the Navy was a mere permit applicant, and that the Corps was therefore the federal agency primarily responsible for the project and for the preparation of the EIS. If this were a project initiated by a state or a private party the Corps might indeed have been required to prepare the EIS. Our decisions in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 508 F.2d at 931-33, and Greene County Planning Board v. FPC, 455 F.2d 412, 419-20 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), clearly hold that a federal agency cannot abdicate its responsibility independently to evaluate federal actions proposed to it by other, non-federal entities. See 1 — 291 Why? Association v. Burns, 517 F.2d 1077 at 1081 (2d Cir. 1975). When two or more cooperating federal agencies are the only entities involved in a proposed project, however, the situation is quite different. Federal participation in the preparation of the EIS is assured. The only issue is which, as between federal agencies, should be treated as the “lead” agency responsible for its preparation. The Council on Environmental Quality (“CEQ”) has issued Guidelines which allow for the designation of a “lead” agency to prepare the EIS on all aspects of a federal project involving more than one federal agency. The agencies themselves are to designate the “lead” agency, taking into account “the time sequence in which the agencies become involved, the magnitude of their respective involvement, and their relative expertise with respect to the project’s environmental effects.” 40 C.F.R. § 1500.7(b). The district court concluded on the basis of these guidelines that the Navy’s preparation of the EIS was not improper. We agree. Although the Corps, by recommending the New London dump site and implying that it would not issue a permit to the Navy unless that site was designated, became rather heavily involved in the project, other evidence demonstrates that the project nevertheless remains essentially a Navy one. The dredging is being done for the benefit of the Navy, at the Navy’s expense, and to fulfill a governmental responsibility entrusted to the Navy. Furthermore, since the Navy conceived of the project, it was the first federal agency involved. Thus, while the Corps is a participant to the extent of issuing permits, the Navy is active in all aspects of the project. It, not the Corps, was responsible for drawing up and letting contracts for the work and seeing that the work was properly performed. All of these factors point to the Navy as the responsible agency. See Hanly v. Mitchell, 460 F.2d 640, 645 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). Furthermore, only the Navy has continuing responsibility to see that the dredged channel remains at the proper depth and in good repair. See Upper Pecos Association v. Stans, 452 F.2d 1233, 1236 (10th Cir. 1971), remanded for determination of mootness, 409 U.S. 1021, 93 S.Ct. 458, 34 L.Ed.2d 313 (1972), appeal dismissed as moot, 500 F.2d 17 (10th Cir. 1974). Finally, the district court found that no data as to the relative environmental expertise of the two agencies prior to January 1972 had been presented by the parties. Appellants’ further argument that the Navy’s partial delegation of its duty as the “responsible official” to a consultant to prepare the EIS violated our decisions in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, and Greene County Planning Board v. FPC, supra, misconstrues our holdings in those cases. Rather than hire its own personnel to prepare the impact statement, the Navy in this case contracted out the work to an independent consultant. Navy personnel first prepared a short rough draft of the proposed statement and then sent the draft to the consultant along with instructions to expand it on the basis of comments and other information supplied by the Navy. The draft and final versions of the EIS as they now exist were prepared by the independent consultant with minimal editing by the Navy. We agree with the district court that this procedure is acceptable in these circumstances and is not prohibited by the decisions relied upon by plaintiffs. The evil sought to be avoided by the holdings in Conservation Society and Greene County is the preparation of the EIS by a party, usually a state agency, with an individual “axe to grind”, i. e., an interest in seeing the project accepted and completed in a specific manner as proposed. Authorship by such a biased party might prevent the fair and impartial evaluation of a project envisioned by NEPA. Here no problem of self-interest on the part of the author exists. As the Navy’s hiree, the independent consultant has no interest but the Navy’s to serve and is fully responsible to the Navy for any shortcomings in the EIS. Therefore, we see no difference for NEPA purposes between this procedure and preparation of the EIS by Navy personnel. In both cases the preparers are guided exclusively by the interests of the Navy and the dictates of the NEPA process. See 389 F.Supp. at 1273-74. 3. Inadequacy of Discussion in the EIS of Cumulative Effects of Navy and Other Dumping Projects. The Final EIS filed by the Navy discussed and evaluated only the environmental impact of this particular Navy project. It did not mention other pending proposals for dumping of approximately an additional 2 million cubic yards of polluted spoil at the New London site or at other nearby areas. The Corps of Engineers proposes, subject to approval and funding by Congress, to dredge the channel of the Thames River to a depth of 41 feet, generating approximately 1,400,000 cubic yards of spoil, with the New London site as a likely dumping spot. The United States Coast Guard, according to a draft EIS recently issued by it, proposes to use the New London site for the dumping of approximately 250,000 cubic yards of spoil. Maintenance of the Thames River channel through 1980 will create approximately an additional 200,000 cubic yards of spoil. The Electric Boat Division of General Dynamics has applied to dredge 300,000 cubic yards from the Thames River near its plant and to dump the spoil at the New London site. The combined spoil from these proposed projects and from the Navy’s project totals approximately 5 million cubic yards. Were it all to be dumped within the next 5 years at the New London site the amount would far exceed the average of approximately 250,000 cubic yards dumped there annually prior to 1972. Indeed the total amount dumped into the entire Long Island Sound during the first eight months of 1972 was 2.1 million cubic yards. In view of the failure of the Navy’s Final EIS to make any mention whatsoever of all of these proposed projects or to analyze the possible cumulative effects of the Navy’s dumping of 2.8 million cubic yards of highly polluted spoil with the proposals for dredging of an additional 2.15 million cubic yards, which must be dumped somewhere, appellants renew their contention, rejected below, that the EIS is deficient. We agree that in this respect the EIS failed to furnish information essential to the environmental decision-making process. The district court concluded that the environmental impact of the Navy’s project may be considered in isolation for the reason that the other dumping projects are tentative or speculative in nature and, unlike segments of a proposed highway which must be considered as part of one major federal development program, see Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 508 F.2d at 934-35, the Navy’s dumping of spoil is unrelated to that required by other projects. The court furthermore concluded that the Navy’s use of the New London site, unlike some federal projects, will not have a “bankwagon effect” leading inevitably to use of the same site for the dumping output of the other projects, see Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). Although the district court recognized the threat of incremental harm posed by the other proposals for dumping of polluted spoil in the area, 389 F.Supp. 1279-80, it was persuaded that the development of an impact statement for a larger ecosystem was neither feasible nor reasonable. Accordingly the court drew the line at the Navy’s single project, reasoning that “The duty to discuss the impact of all possible pollutants cannot be imposed on each isolated project”, 389 F.Supp. 1280. We believe that this represents too constricted a view of the informative function of an EIS and of the duty of the responsible agency in preparing it. We agree with the Navy that NEPA does not require it to make a “crystal ball” inquiry, Natural Resources Defense Council Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972), and that an EIS is required to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible, Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973). A government agency cannot be expected to wait until a perfect solution of environmental consequences of proposed action is devised before preparing and circulating an EIS. On the other hand, an agency may not go to the opposite extreme of treating a project as an isolated “single-shot” venture in the face of persuasive evidence that it is but one of several substantially similar operations, each of which will have the same polluting effect in the same area. To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster. As was recognized by Congress at the time of passage of NEPA, a good deal of our present air and water pollution has resulted from the accumulation of small amounts of pollutants added to the air and water by a great number of individual, unrelated sources. “Important decisions concerning the use and the shape of man’s future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades.” S.Rep.No.91-296, 91 Cong., 1st Sess. 5 (1969). NEPA was, in large measure, an attempt by Congress to instill in the environmental decisionmaking process a more comprehensive approach so that long term and cumulative effects of small and unrelated decisions could be recognized, evaluated and either avoided, mitigated, or accepted as the price to be paid for the major federal action under consideration. E. g., Natural Resources Defense Council, Inc. v. Morton, supra, 458 F.2d at 836; see Scientists’ Institute for Public Information, Inc. v. AEC, supra; Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). The fact that another proposal has not yet been finally 'approved, adopted or funded does not foreclose it from consideration, since experience may demonstrate that its adoption and implementation is extremely likely. In recognition of Congress’ purpose the CEQ Guidelines for preparation of impact statements emphasize that consideration should be given not only to the action that is the subject of the EIS but also to “related Federal actions and projects in the area, and further actions contemplated” (emphasis added), 40 C.F.R. § 1500.6(a), and direct that the “interrelationships and cumulative environmental impacts of the proposed action and other related Federal projects shall bejjresented in the statement”, 40 C.F.R. § 1500.8(a). Additionally, the Navy itself has recognized this requirement of broad range consideration and evaluation: “The point is that a large overview should be maintained toward the magnitude of environmental effects, both of the immediately contemplated action and of future actions for which the proposed action may serve as a precedent or have a cumulatively significant impact.” OPNAYINST 6240, 2c, § lb (Oct. 4, 1972). The Navy’s impact statement fails to meet this standard of comprehensive evaluation. It is clear that there are at least several other major federal and private dredging projects that are likely to produce colossal amounts of polluted spoil for disposal in this particular area of Long Island Sound — the Corps’ further deepening of the Thames River channel, the maintenance of that channel, the dredging of the Thames by the Electric Boat Division of General Dynamics and the Coast Guard’s Thames River dredging projects. While none of these projects have gained final approval, all are well beyond the stage of mere speculation and should have been included in the Navy’s analysis of environmental impacts. Admittedly, they are not projects contemplated by the Navy and are not directly related to the Navy’s dredging of the Thames in the sense that all are part of the Navy’s project, see Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 508 F.2d at 934-36. On the other hand, all are to occur in the same geographical area, all are related in that they involve dredging and disposal of spoil, all present similar problems of pollution, and the spoil from each project is likely to be dumped in the New London area. Clearly, the projects are closely enough related so that they can be expected to produce a cumulative environmental impact which must be evaluated as a whole. See Jones v. Lynn, supra, 477 F.2d at 890-91. The Navy’s failure to consider these and possibly other proposed dredging projects in the New London area is an example of the isolated decisionmaking sought to be eliminated by NEPA. The cumulative environmental impact of disposal of all of this dredged spoil at or near the New London site would clearly be greater than the impacts of the projects individually and the risk of serious environmental consequences (such as the movement of the spoil toward shore) may be correspondingly greater. If the total amount and type of spoil to be disposed of in this area in the foreseeable future is studied objectively by the Navy and the Corps, they may well conclude that some other method of disposal, such as a containment island large enough to contain the spoil dredged from all of these and similar projects, should be urged upon Congress as the only effective way of dealing with the problem. The National Marine Fisheries Service has pointed out that such containment islands, which are under way in the Great Lakes and Chesapeake Bay areas, not only have environmental benefits but offer economic advantages as well when used on a large scale, since the cost is then shared by several dumping projects. Another approach that might have been considered favorably if the government were required to take a long-range look at the cumulative effect of the various pending projects would be a plan for adoption of a system of allocation of the most desirable ocean disposal sites so that the worst polluted spoil could be placed at the site most likely to contain it. The Navy’s piecemeal approach to environmental consideration prevented any such comprehensive planning. The Navy seeks to avoid any broad analysis of the cumulative impact of dumping in the New London area on the ground that there is insufficient scientific knowledge about the long-term effects of its proposed New London dumping site project or about the Long Island ecosystem generally to enable it to make an assessment. The preferable course, it argues, would be to proceed with the New London project, subject to possible suspension if the monitoring program should uncover any adverse impacts. The trouble with this suggestion is that it offers “too little and too late” to enable the EIS to be of any effective use. The monitoring program, as we have noted, would probably not discover the adverse effects until millions of cubic yards of polluted spoil had been dumped and had irreversibly been started on what may well turn out to be a program of destruction. The two-year monitoring program, furthermore, is not calculated to measure long-term effects. Although the Navy’s project cannot wait on a complete study of the Long Island Sound ecosystem, it is worth noting that the New England River Basin Commission is conducting just such a study. Surely the Navy’s EIS, despite the present paucity of information on cumulative effects, should be required to furnish some information on and analysis of the subject rather than postpone the matter for consideration by others while it embarks upon such a serious project. The Navy is not required to study and report on the effect of its dumping on the whole of Long Island Sound, a relationship as yet not understood. Nor does it need to consider other projects so far removed in time or distance from its own that the interrelationship, if any, between them is unknown, or speculative. However, it is required at least to disclose in its EIS other planned or proposed dredging projects in the area of New London and other plans or proposals to dispose of dredged spoil at or near New London, with a discussion and analysis of the combined environmental impact of its own and these other projects. 4. Adequacy of Decisionmaking Procedure and Consideration of Alternatives to Dumping at New London Site in the EIS. Plaintiffs finally attack the procedure followed by the Navy in selecting the New London Disposal Site, contending (1) that it violated NEPA for the reason that the site was chosen without first considering its environmental impact, the Final EIS amounting to nothing more than a post hoc rationalization of a decision already made, and (2) that there was a failure to furnish sufficient information in the Final EIS with respect to reasonable- alternative sites to permit a fair consideration and comparison of their respective impacts with that of the New London site. In the Revised Draft EIS of May 1973 the Navy indicated that it had chosen to dispose of the dredged spoil at Brenton Reef, a site located in Rhode Island Sound off Newport, Rhode Island. Although the site is some 23 miles from the Thames River mouth, it was thought at that time to be the most suitable disposal area because it had previously been used successfully as a site for disposal of some 8.2 million cubic yards of dredged spoil which had been dumped there in 1967 and 1970 with no adverse effect. Based on the relatively great depth at the Brenton Reef site, the low velocity of bottom currents, and the fact that material previously dumped at the site had stayed in place, the probability was high that material deposited there in the future would not disperse. Sites in Long Island Sound were not considered at that time because Navy studies and EPA comments indicated it to be a poor disposal area. Just before the Revised Draft was circulated the Navy applied to the Army Corps of Engineers for a permit for dumping at Brenton Reef pursuant to § 404 of FWPCA, 33 U.S.C. § 1344. The Corps rejected the application as “premature” and questioned the economics of dumping at Brenton Reef. Over the next three months, May-July, 1973, the Corps decided, apparently independently of the Navy, that the New London site should be used. The basis for the Corps’ decision is not altogether clear, but the choice seems to have been based upon economics, sketchy information regarding the extent to which sediment at the New London site was moved by currents, the fact that the latter site had been previously used, and the abandonment by EPA of its objections to disposal in Long Island Sound. Since the Corps is the permit-granting agency, its views prevailed and the Navy issued an Addendum to the Revised Draft EIS on August 9, 1973, changing the primary disposal site from Brenton Reef to New London. The Addendum erroneously described the change as having been made on the recommendation of the Scientific Advisory Committee of an Interagency Coordinating Committee on Dredging and Ocean Disposal, which in fact only concurred in the change. After further proceedings and public hearings the Final EIS was published in December 1973, designating New London as the disposal site, and the dumping permit for New London was issued by the Corps in April 1974. Plaintiffs charge that these events have amounted to a shortcircuiting of the agency decisionmaking process mandated by NEPA. They argue that a complete EIS must accompany the proposal for federal action at every stage of the decisionmaking process, see Greene County Planning Board v. FPC, supra, 455 F.2d at 420-21, and that the Corps of Engineers’ decision to use the New London site was made completely outside of the NEPA processes on the basis of information and considerations never presented in the Revised Draft EIS. In short, they claim that the decision to use New London was made despite the Revised Draft EIS and that the later Addendum and Final EIS were specifically tailored to provide a post hoc rationalization of that decision. The district court rejected plaintiffs’ arguments, reasoning that as long as the Corps considered in good faith the environmental factors set out in the Addendum and in the Final EIS “before the permit issues and the decision is finalized” the NEPA process is satisfied and “it should not matter when the Corps ‘decides’ to use a particular site.” 389 F.Supp. 1276. We agree with the district court that the use of supplemental data and statements is permissible to bolster an otherwise deficient EIS or to amend an EIS to consider changes in the proposed federal action when the “supplemental” adequately remedies the deficiency or analyzes the impact of the proposed change and is properly circulated among the appropriate agencies before a final decision has been reached. We implicitly approved this practice in 1 — 291 Why? Association v. Burns, supra, at 1081, although the supplemental statements there had not been adequately circulated to comply with NEPA. The necessity and economy of such a method of amending and supplementing EIS’s in light of proposal changes or EIS deficiencies without redrafting or recirculating a whole new document is obvious. Indeed, the CEQ Guidelines specifically provide for the procedure: “An agency may at any time supplement or amend a draft or final environmental statement, particularly when substantial changes are made in the proposed action, or significant new information becomes available concerning its environmental aspects. In such cases the agency should consult with the Council with respect to the possible need for or desirability of recirculation of the statement for the appropriate period.” 40 C.F.R. § 1500.11(b). Although an EIS may be supplemented, the critical agency decision must, of course, be made after the supplement has been circulated, considered and discussed in the light of the alternatives, not before. Otherwise the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it. The district court here found that the supplemental information was made available by the Navy to the Corps and considered by the latter in good faith before the New London site was finally chosen and a permit issued. Plaintiffs vigorously attack this finding as clearly erroneous, pointing to documentary evidence indicating that the Corps had decided as early as June, 1973 that the New London site must be used by the Navy instead of Brenton Reef, which the Navy had previously chosen, i. e., long before the Navy’s brief study of the movement of sediment at the New London site was made and the Addendum prepared. We find it unnecessary to resolve this issue, in view of our conclusion that the permit cannot in any event stand because the Corps was not presented with adequate information on alternative dump sites before issuing it. The district court, applying a “rule of reason” derived from Natural Resources Defense Council Inc. v. Morton, supra, 458 F.2d at 833-34, n. 12, found the consideration of alternatives to be adequate. We disagree with this finding. In our view, even when judged by the “rule of reason” the; Addendum failed adequately to explain and evaluate the change of the primary dump site from Brenton Reef to New London and failed to make an adequate analysis of the comparative environmental merits and disadvantages of the New London site and of the alternative sites that had figured prominently in the Navy’s earlier decision. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), specifically requires the inclusion in the EIS of a “detailed statement” of “alternatives to the proposed action”, including an evaluation of the environmental consequences of the suggested alternatives, Natural Resources Defense Council Inc. v. Morton, supra, 458 F.2d at 834. The importance of this section of the EIS to the NEPA process has been stressed repeatedly by this and other federal courts, e. g., Monroe County Conservation Society, Inc. v. Volpe, 472 F.2d 693, 697-98 (2d Cir. 1972); Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114 (1971); see CEQ Guidelines, 40 C.F.R. § 1500.8(a)(4). It is absolutely essential to the NEPA process that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, a requirement that we have characterized as “the linchpin of the entire impact statement”, Monroe County Conservation Society, Inc. v. Volpe, 472 F.2d at 697-98. Indeed the development and discussion of a wide range of alternatives to any proposed federal action is so important that it is mandated by NEPA when any proposal “involves unresolved conflicts concerning alternative uses of available resources,” 42 U.S.C. § 4332(2)(D). This requirement is independent of and of wider scope than the duty to file the EIS, Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 at 93 (2d Cir. 1975); Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974). The content and scope of the discussion of alternatives to the proposed action depends upon the nature of the proposal. Generally, however, the preparer of the statement “must go beyond mere assertions” and provide sufficient data and reasoning to enable a reader to evaluate the analysis and conclusions and to comment on the EIS. Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973). Although there is no need to consider alternatives of speculative feasibility or alternatives which could only be implemented after significant changes in governmental policy or legislation or which require similar alterations of existing restrictions, see Sierra Club v. Lynn, 502 F.2d 43, 62 (5th Cir. 1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (U.S., May 27, 1975) (No. 74-1024); Natural Resources Defense Council Inc. v. Morton, supra, 458 F.2d at 836-38, the EIS must nevertheless consider such alternatives to the proposed action as may partially or completely meet the proposal’s goal and it must evaluate their comparative merits. In addition, the discussion of alternatives should be presented in a straightforward, compact and comprehensible manner “capable of being understood by the reader without the need for undue cross reference.” CEQ Guidelines, 40 C.F.R. § 1500.8(b). Measured by these standards neither the Addendum of August 9, 1973, nor the discussion of alternative dumping sites in the Final EIS passes muster. The most serious deficiency in the Addendum announcing the change to the New London site is its complete failure to compare the relative environmental pros and cons of all the dumping sites proposed and to explain the reasons for the change. Such a statement is essential to enable all parties to examine the merits of the proposed change. This deficiency is aggravated by the representation that the change was “recommended” by the Committee on Dredging and Ocean Disposal, which was untrue. Also lacking in the Addendum is an evaluation of the containment characteristics of the New London site and a presentation of the risks of major or minor environmental damage peculiar to that site. All of this information would certainly be necessary for the reader to understand and evaluate the proposed change in dumping site. Without it the Addendum simply is not sufficient, when combined with the Revised Draft EIS which it was to supplement, to provide a basis for evaluation of the change to New London. If the Final EIS were itself adequate, it might cure the deficiencies in the Addendum since it was circulated several months before the dumping permit was actually issued. That is not the case here, however. The Final EIS itself also fails adequately to justify the change. Its major flaw is the absence of a coherent, understandable presentation and comparison of all of the major alternatives to the New London site. The alternative of dumping at Brenton Reef, the primary site in the Revised Draft EIS, is not even mentioned in the section on alternative sites and is mentioned only in passing elsewhere in the Final EIS. Two other sites discussed at some length in the Revised Draft EIS and considered as alternatives to Brenton Reef, the “Acid” Site and Site 3, are mentioned in the Final EIS, but there is lacking a concise statement of the merits and demerits of each as compared with the New London site and with the other sites. Similarly, as to the other alternatives actually discussed there is insufficient comparison of the qualities of each site with those of the other sites. At best the statements with respect to each site are conclusory, rather than informative. By failing to present a complete analysis and comparison of the possible dumping sites, the Final EIS fails to perform its vital task of exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government. See, e. g., Silva v. Lynn, supra, 482 F.2d at 1286-87; Monroe County Conservation Society, Inc. v. Volpe, supra, 472 F.2d at 697. It leaves the reader completely in the dark as to why the New London site was suddenly chosen over Brenton Reef after the latter had been selected as the most suitable site and it gives only sketchy information as to other sites that had been runners-up to Brenton Reef. 5. Conclusion. In sum, we hold that the district court has jurisdiction to hear plaintiffs’ claimed violation of FWPCA. The Corps of Engineers’ voluntary application of part of the Ocean Dumping Criteria makes that part of the Criteria relied upon by the Corps enforceable against it. We affirm the district court’s holding that the Navy is the appropriate author for the EIS. The Final EIS does not meet NEPA standards because of its failure to discuss other dumping and dredging projects in the New London area and their cumulative impact, combined with the Navy’s project, on the ocean environment. The Addendum evaluating the change in primary dump site from Brenton Reef to New London fails adequately to compare New London with other dump sites and to explain the Navy’s choice. Similarly, the Final EIS fails to present a comprehensible and thorough discussion of all the alternative dumping sites suggested by the Navy and the reasons for choosing New London over the others. The Navy should not be permitted to proceed with further dumping at the New London site until the FWPCA claim has been resolved and the serious deficiencies in the EIS remedied. Otherwise application of a “rule of reason” would convert an EIS into a mere rubber stamp for post hoc rationalization of decisions already made. If the spirit as well as the letter of NEPA is to have any real meaning in this ease, the Navy should prepare and circulate for consideration and comment a supplemental statement that will furnish detailed information with respect to (1) other dredging and dumping projects, existing and proposed, in the New London area and their anticipated cumulative impact, when combined with the Navy’s Thames River project, on the ocean’s environment, (2) all of the alternative dumping sites proposed in the Revised Draft EIS and Final EIS. The supplemental statement must then make a genuine effort in a truly objective fashion to evaluate and compare the qualities of all of the containment sites and, to select one on the basis of clearly stated data and reasoning. Since the plaintiffs have made out a clear case on the merits and irreparable damage could be caused by resumption of further dumping at the New London site, the district court is directed to issue appropriate temporary injunctive relief designed to maintain the status quo until the FWPCA claim is resolved and the defects in the EIS are remedied. Reversed in part and remanded for further proceedings consistent with the foregoing. . The New London Dumping site is located approximately two nautical miles directly off the entrance to the New London, Connecticut, Harbor and about one-and-one-half nautical miles to the west of Fishers Island. . The district court opinion is reported at 389 F.Supp. 1263 (D.Conn.1974). . § 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant, including dredged spoil, 33 U.S.C. § 1362(6), into the waters of the United States except in accordance with a permit issued under FWPCA. §§ 404(a) and (b), which authorize the Corps to issue permits for the discharge of dredged spoil in accordance with guidelines developed by EPA, provide in pertinent part: “Permits for dredged or fill material “(a) The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. “(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary of the Army (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary of the Army, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 1343(c) of this title, and (2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage.” 33 U.S.C. § 1344(a) & (b). . Both Conservation Society and Train found strong support for a liberal interpretation of § 505(e) in the legislative history of that section and the corresponding section of the Clean Air Act, its prototype. See, e. g., S.Rep. No.1196, 91 Cong., 2d Sess., 36-37 (1970). These sources indicate that the provisions for judicial review set out in §§ 505(a) & (b) were not intended by Congress to eliminate previously existing avenues of citizen enforcement of the Act, but were intended to provide an additional citizen remedy. Thus §§ 505(a) & (b) are not the exclusive jurisdictional bases for suit under the FWPCA and suit may be brought under any suitable federal jurisdictional statute. But see City of Highland Park v. Train, 519 F.2d 681 at 690-691 (7th Cir. 1975). In this case there is, furthermore, a strong additional argument for finding jurisdiction under § 505(a), since the purpose of the 60-day waiting period, which is to give the administrative agencies time to investigate and act on an alleged violation, has been served. The EPA and other agencies were given notice by plaintiffs of the alleged violations and plaintiffs were informed before this suit was commenced that no action would be taken. . The government’s citation of National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), holding that the citizen suit provision of the Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq., provides the exclusive basis for a private cause of action to enforce duties imposed by that Act, does not change our view that § 505(a) is not the exclusive jurisdictional basis for private suits to enforce the FWPCA. National Railroad Passenger Corp. was based upon the legislative history of the Rail Passenger Service Act and the specific language of that Act, both of which are completely different from the language of the FWPCA. The precedential effect of the decision is therefore limited to cases involving similarly constructed legislation. . § 227.64 of the EPA’s Ocean Dumping Criteria, 40 C.F.R. §§ 220, ei seq., provides: “Section 227.64 Disposal of Polluted Material “Polluted dredged material may be disposed of in the ocean if it can be shown that the place, time, and conditions of dumping are such as not to produce an unacceptable adverse impact on the areas of the marine environment cited in § 227.60(c). When material has been found to be polluted in accordance with § 227.61(c), bioassay tests may be performed when it can be shown that the results of such tests can be used to assist in setting disposal conditions. To minimize the possibility of any such harmful effects, disposal conditions must be carefully set, with particular attention being given to the following factors: “(a) Disposal site selection. (1) Disposal sites should be areas where benthic life which might be damaged by the dumping is minimal. “(2) The disposal site must be located such that disposal operations will cause no unacceptable adverse effects to known nursery or productive fishing areas. Where prevailing currents exist, the currents should be such that any suspended or dissolved matter would not be carried in to known nursery or productive fishing areas or populated or protected shoreline areas. “(3) Disposal sites should be selected whose physical environmental characteristics are most amenable to the type of dispersion desired.” . In our review of this and plaintiffs’ other contentions relating to the adequacy of the EIS and other statements filed under NEPA we are not bound by the clearly erroneous rule since these determinations essentially involve the drawing of legal conclusions and inferences from facts. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248 (10th Cir. 1973); see United States v. Mississippi Valley Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961). . Although the CEQ Guidelines are only advisory, since the CEQ has no authority to prescribe regulations governing compliance with NEPA, the Guidelines carry significant weight with this court. “[W]e would not lightly suggest that the Council, entrusted with the responsibility of developing and recommending national policies ‘to foster and promote the improvement of the environmental quality,’ NEPA § 204, 42 U.S.C.A. § 4344, has misconstrued NEPA.” Greene County Planning Board v. FPC, supra, 455 F.2d at 421. . The district court found that consideration of cumulative impacts of separate projects is required where the project under consideration may have a “bandwagon effect” of the type discussed in Scientists’ Institute for Public Information, Inc. v. AEC, supra, 481 F.2d at 1089-90. Such a “bandwagon effect” occurs when the very existence of a completed project tends to compel further development in a particular manner. Although the district court saw no danger of such an effect here, 389 F.Supp. at 1279, the Navy concedes that the “regulations encourage use of previously spoiled dumpsites (39 Fed.Reg. 12115-12125), for the very reason that little is known about the effects of dumping; it is therefore thought unwise to unnecessarily spoil new sites” (Navy Br., Note 30, p. 36). Thus the Coast Guard, following the Navy’s lead, now proposes in its EIS to use the New London site. Although the Navy adds that, if adverse effects of dumping at the New London site are detected, the Navy would not necessarily continue to use that site, the discovery of such effects through monitoring would, according to the plaintiffs’ expert, come too late to remedy the damage, since millions of cubic yards of highly polluted spoil would already have been dumped on the New London site. Thus, in view of our holding that the cumulative effects of other projects must be considered, while we need not decide whether the Navy’s dumping project would necessarily have a “bandwagon effect”, the practical consequences of a Navy decision to dump at the New London site may be similar. . Use of the Brenton Reef site instead of the New London site was estimated to cost approximately $7,000,000 more. . The EPA dropped its objections to disposal in Long Island Sound because it concluded that a recent legislative change had made consideration of dump sites within the Sound possible. The change was Congress’ enactment of 33 U.S.C. § 1413(d), which provides that the Secretary of the Army may authorize the dumping of nonconforming dredge spoil in the ocean if he concludes that no other economically feasible method or site is available. The applicability of this change to the dumping in this case appears doubtful, however, since it does not appear to involve dumping in the ocean, as that term is defined in 33 U.S.C. § 1402(b). . While we agree with the district court that the discussion of alternatives in an EIS is governed by a “rule of reason” we believe that it is not beyond reason to require the EIS to furnish in an understandable fashion a discussion of all dumping site alternatives, their relative merits and demerits with sufficient supporting data, and the reasons for choosing one over the others. Even after making allowances for the admitted lack of knowledge about several of the proposed dump sites, this standard was not met here. . We disagree with the district court’s conclusion that the evaluation of Brenton Reef was incorporated into the Final EIS by reference. See 389 F.Supp. at 1289. The place in the Final EIS cited by the district court as accomplishing this result simply mentions Brenton Reef as a containment site, and does not lead the reader to other materials discussing its relative merits. This hardly comports with NEPA requirements that alternatives be presented and evaluated in a comprehensive and understandable fashion. . The Acid Site, located 10 miles to the southeast of Block Island, was provisionally approved in October, 1973, by the EDA as an acceptable site for the Navy’s dumping of the Thames River spoil, i. é., well before the issuance of the Final EIS. The district court concluded that since dumping at the Acid site would be more expensive than at New London and the- Acid Site was of uncertain technical feasibility, summary treatment of the Acid Site in the EIS was justified. We disagree. The district court’s conclusions were based not on detailed statements made in the EIS but on part of a transcript of public hearings that was never circulated to agencies or to the public for scrutiny. At the very least the information used by the district court should have been included in the EIS so that its accuracy might have been open to test and discussion. Site 3, located in Block Island Sound to the southeast of Fisher’s Island, although it had been described both in the revised draft EIS and in the EIS as “the best location for an alternative spoil disposal site”, was cursorily brushed aside by the Final EIS in less than a page. The district court considered this treatment sufficient, assuming that the Navy lacked any further information. However, the record reveals testimony by Prof. Bohlen that testing had been conducted at Site 3 over a period of 4 years and that the site has several attractive containment characteristics, including greater depth than the New London site and a greater distance from the Connecticut coast, thus reducing the risk of destruction of nursery and spawning near the shore.

Natural Resources Defense Council, Inc. v. Callaway

MULLIGAN, Circuit Judge (dissenting): On the question of the sufficiency of the EIS I would affirm on the opinion of Judge Blumenfeld below (389 F.Supp. 1263 (D.Conn.1974)), which the majority opinion properly characterizes as “thorough and carefully considered.” The major issue on this appeal involves the change of the dumping site from its initial locus, Brenton Reef, to New London. On this point the trial judge, who conducted a three-day trial, concluded: There was expert testimony at the hearing on this matter that on the basis of present scientific knowledge there is no way to tell whether Brenton Reef or New London is a better site with respect to containment characteristics. This expert evaluation was by Dr. John B. Pearce, who chaired the meetings of the Scientific Advisory Subcommittee, and Dr. Pearce indicated that this opinion was generally shared by that body. The court concludes that the evidence presented is enough to meet the relatively light burden placed upon the Navy by the “substantive” standard of review. Id. at 1292 (footnote omitted). This is a question of fact determined below which I cannot characterize as “clearly erroneous” and hence I see no reason for a remand to conduct further protracted hearings. The record further establishes to my satisfaction that there is a dearth of information with respect to long-term ecological marine damage from sea dumping. This is precisely why the permit issued here was conditioned upon the maintenance of a comprehensive monitoring and environmental effects study on the site administered by the National Oceanographic and Atmospheric Administration. This program has been funded in the sum of $500,000, and is presently in operation. In the event that any significant adverse environmental effects are detected, the disposal permit may be summarily suspended and the disposal operation will be altered or perhaps moved to a different site which the Corps had agreed to begin to study prior to the commencement of disposal at the New London site. The future ability of the defendants to control the drifting or leakage of the spoilage at the New London site is a factor which cannot be disregarded and must be given weight in assessing the sufficiency of the EIS. Sierra Club v. Morton, 510 F.2d 813, 828 (5th Cir. 1975); Gulf Oil Corp. v. Morton, 493 F.2d 141, 144 (9th Cir. 1973). It is further conceded here that the haulage of the spoilage some 23 miles further to Brenton Reef would entail an additional cost of 7 million dollars. In view of these facts and reading the EIS as supplemented, one cannot reasonably describe the agency decision to utilize New London as “arbitrary or capricious,” or an “abuse of discretion.” Chelsea Neighborhood Ass’ns v. United States Postal Service, 516 F.2d 378, 387 n.23 (2d Cir. 1975). I further disagree with the majority’s determination in part 3 of the opinion that the EIS should evaluate the impact of pending proposals as a result of which at some future date other polluted spoil might be dumped at the New London site. In addition to the reasons advanced below, I think it is reasonable to assume that environmental groups will mount further attacks on such projects as assiduously as they have here. It is unrealistic to anticipate projects which have not been finally approved, adopted or funded. Rather, I submit the present dumping at issue here should be considered by those agencies in making their decisions as to whether or not to utilize New London in the future. I do agree with the majority that the dismissal of the FWPCA count discussed in part 1 of the opinion was improper in view of our decision in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-39 & n.62 (1974). While I agree that our holding there disposes of the time bar issue, I disagree that any remand is necessary. Assuming jurisdiction to review exists under 33 U.S.C. § 1365(a), 28 U.S.C. § 1331 or the Administrative Procedure Act, 5 U.S.C. §§ 701 — 706, the issue is whether or not there is a statement of claim for a violation of 33 U.S.C. § 1344. I see none since there was no applicable EPA effluent standard in effect at the time the permit was issued'. As the record makes clear, Long Island Sound is considered an inland water and the only standards promulgated by the EPA involve ocean dumping criteria. The fact that the Corps made reference to ocean dumping criteria in the issuance of its permit hardly transforms Long Island Sound into the Atlantic Ocean. These regulations are not applicable on their face and I do not see how territorial expansion of jurisdiction set forth in the regulation can be conferred by consent. While we can insist that an agency follow its own regulations where they are clearly applicable, see Feliciano v. Laird, 426 F.2d 424, 429 (2d Cir. 1970), that situation is not here present. Aside from the question of the adequacy of the EIS as supplemented, I am compelled to disagree with the injunctive relief granted in the majority opinion which precludes further dumping at New London until a new EIS is prepared and the FWPCA claim is resolved. The majority argues that injunctive relief is necessary because the plaintiffs have made out a clear case on the merits and irreparable damage could be caused by a resumption of the dumping. While the plaintiffs have prevailed on the merits here the major issue involved is one of the adequacy of the EIS.' In light of the staggering costs involved in utilizing another site, the present New London site may be more explicitly supported and the apparent tergiversation of the Government vindicated in any subsequent EIS. The opinion here does not, as I read it, eliminate New London but simply requires a more detailed explication for its selection. Moreover, I see no proof at all of any immediate irreparable harm which would justify temporary injunctive relief. The monitoring program, which is a condition of the granting of the permit and which was developed in conjunction with the Scientific Advisory Subcommittee, the Army Corps of Engineers, the Navy, the EPA and the States of New York and Connecticut, is certainly designed to prevent any such damage to marine life and to preclude the immediate harm which the majority apprehends. In fact, the principal complaint of the appellants here is that the environmental monitoring program, presently funded for a two-year period, will be ineffective to forestall long-term environmental consequences. There is no serious contention that damage will occur in the immediate future. Moreover, I note that, on the oral argument of this appeal, the appellees represented that further funding and an extension of the program will be sought. In view of the good faith and scientific expertise of the bodies involved, I would consider the damage to be remote and not established in the record before us. There is further the question of balancing of hardships, which is a legitimate inquiry in the issuance of the temporary relief here sought. E. g., Exxon Corp. v. City of New York, 480 F.2d 460, 463-64 (2d Cir. 1973). The project involved and halted in medias res affects the national defense. The work now projected involves widening and deepening the channel from the Gold Star Memorial Bridge to the Naval Submarine Base so that the new SSN 668 submarines (the first of which was scheduled to arrive in July 1975) would have access to the Naval Submarine Base in 1976. The remand here requiring the preparation of a new EIS, with further hearings and undoubtedly further appeals, will obviously delay that project. I can only assume that the deployment of these submarines and their access to the base has some relevancy to the defense of the United States. At the very least the issue should be remanded to determine how vital these interests are in comparison with the interim spoliation which the issuance of the temporary injunction implies. The issuance of an injunction without any opportunity for the trial court to make this factual determination constitutes, I think, an abuse of appellate discretion. In sum, I believe the injunction and remand directed here are unwarranted. While the EIS as revised may not be as perfectly prepared or polished as my brothers or I would like, I believe with Judge Blumenfeld that under all the circumstances, particularly the existence of the unique environmental monitoring program now in effect, it fully complies with the law. Hence I respectfully dissent. . In footnote 7, the majority opinion maintains that the “clearly erroneous” test of appellate review does not apply in our assessment of the adequacy of the EIS since this determination involves the drawing of legal conclusions and inferences from facts, citing Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248 (10th Cir. 1973). Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975) is contrary. That court held: Having failed to convince the trial court that the EIS was inadequate, the plaintiffs must now demonstrate that the lower court’s findings accepting the EIS as adequate and the decision to proceed as permissible were clearly erroneous. I find no discussion in point in this circuit. When the adequacy of the EIS is questioned because of its alleged failure to properly discuss alternative solutions, their physical viability becomes crucial. That rests upon a question of fact not law and therefore to that extent the clearly erroneous rule should apply. The non-sea dumping alternatives, e. g., total land disposal, dredge soil farming, incineration, container disposal and island construction, were definitely discussed and rejected in the revised EIS. . The so-called Acid Site referred to in the majority opinion, which has never been used as a dumping site in the past, was only brought to the Navy’s attention after the EIS was filed. In view of the objections of organized fishermen, it has been dropped from further consideration. However, two other sites in Block Island Sound are being studied as alternative locations in the event the New London site proves to be unsafe. The flexibility provided by the monitoring program is persuasive that the claimed insufficiency of past consideration of alternate proposals in the EIS exalts form over substance.

United States v. Joseph G. Moretti, Inc.

JOHN R. BROWN, Chief Judge: Proving again that legislative intent frequently comes to exceed even the wildest imagination of those responsible for enactment, it is ironic that as a product of a laissez-faire society, a 19th Century act is now once again the effective tool in this decade’s awakening awareness of the importance of man’s environment. The Rivers and Harbors Act of 1899 — itself the product of congressional dissatisfaction with the consequences of the Supreme Court’s Willamette Iron Bridge Co. v. Hatch, 1888, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629, holding that there was no federal common law prohibiting an obstruction to a navigable stream — was at once the source of jurisdiction and the substantive basis for the action of the District Court. Applying § 10 of the Act which forbids the creation of obstructions in, or alteration of the features of the navigable waters of the United States without permission of the Secretary of the Army the Court ordered Joseph G. Moretti, Jr. to undo dredge and fill operations involving 400,000 cubic yards of earth, because of his failure to obtain the required permit, 331 F.Supp. 151. Despite the fact that Moretti violated the Act flagrantly and our settled conviction that mandatory affirmative relief requiring a burdensome performance is statutorily and equitably appropriate on these facts, we modify and remand for completion of administrative action which conceivably could have the effect of validating the work done, thus rendering the issues litigated moot. Moretti owns lands at Hammer Point on Key Largo, one of the Florida Keys curving fingerlike for 120 miles into the Gulf of Mexico off the southern tip of Florida. His property was located about 1 Ys miles from Tavernier on the Florida Bay side of the Key. Tavernier lies to the south of Hammer Point. Hammer Point is in turn about 4% miles southwest of Rock Harbor. Like the developers in our far-reaching opinion of Zabel v. Tabb, he proposed to dredge and fill the land into a network of land fingers and canals for use as a mobile home park. Moretti, unlike his counterpart in Zabel, decided to forego the prerequisite imprimatur of the Corps of Engineers before making his proposed project a reality. Having purchased his land in 1969, Moretti had completed substantial work on his project when paid a fateful visit by two employees of the Environmental Protection Agency in December of 1970. Lee Purkerson and John Hagen, the EPA employees, were not on official business at the time that they noticed the extensive work on the Moretti project. They took some pictures of the drag-line as it was removing soil from the underwater portion of the Bay bottom and adding it to the shoreline thereby moving the shoreline and Moretti’s property bayward. They could also see where channels had been cut or deepened between the fingers. Moretti asked them what they were doing there, a question which they turned back at him. They asked him if he had a Corps of Engineering permit and he said he did not. These facts were reported to the Jacksonville office of the Corps of Engineers. On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army. After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done. Structure of the Act and Regulations In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 1899 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of Engineers — the eyes and ears, and sometimes hand of the Secretary — is headed by the Chief of Engineers who is charged by law with advising the Secretary of the Army of the propriety of issuing permits. The Corps itself is divided into 11 “divisions” which are in turn subdivided into 37 “districts.” As will be seen later, authority to grant permits is in some cases delegated down to the level of the District Engineers. The duties of the Secretary of the Army and the Corps of Engineers under the Act together with the administrative procedures which include the delegation of authority through the Corps are set out at 33 C.F.R. § 209.120 (1972). The Secretary has authorized the Chief of the Corps, at the latter’s option, to delegate authority to issue permits to District Offices of the Corps in any ease in which the application for construction in navigable waters is “entirely routine and * * * involve [s] no difference of opinion * * * nor any opposition or other considerations which should be decided by higher authority.” The regulations specify that this grant is not a delegation of the Secretary’s discretionary powers. By § 209.120(c) (1) (iii) the Chief of Engineers has exercised this authority and commissioned Division and District Engineers with power to grant permits in the name of the Secretary where the matter is routine. *' The Corps’ general policy for issuing the permits require that it take into consideration and evaluate “all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest * * *.>> More specifically the Corps is required by its regulations, various statutes, executive orders and an accord between the Secretary of the Interior and the Secretary of the Army to consider all applicable data including the views of other federal agencies and the views and objections of state agencies before granting a permit. The watchword of the Corps’ relation with other federal agencies charged with protection of the environment is cooperation. Besides its duty to cooperate and collaborate the Corps is charged by executive order, as are all federal agencies, to improve water quality through prevention control and abatement of water pollution. In its attempt faithfully to carry out this responsibility the Corps has through formal regulations established a policy, in eases where dredging operations may cause pollution problems, of seeking the technical assistance of state and federal pollution control authorities and conditioning the granting of the permit on the establishment of controls which will insure that federal and state water pollution control standards are met. This policy, and other statutorily required policies are summarized in a “memorandum of understanding” between the Secretary of the Army and the Secretary of the Interior signed July 13,1967. The memorandum of understanding was drafted in recognition of the statutory responsibility of the Corps of Engineers and the Department of Interior to interrelate their activities in the area of water pollution control where damage to fish and wildlife is possible as well as in recognition of the agencies responsibilities under Executive Order No. 11288 as discussed above. The memorandum sets forth procedures — given life in the Corps of Engineers permit procedure, infra — for carrying out these policies. These procedures provide that (i) upon receipt of an application for dredging or filing permits the District Engineer shall notify Regional Directors of the Federal Water Pollution Control Administration, Fish and Wildlife Service, National Park Service, and the appropriate state agencies, (ii) The Regional Directors would immediately make such studies and investigations as are necessary and inform the District Engineer whether the quality of the waters will be reduced in violation of applicable standards or the value of natural resources and related environment will be unreasonably impaired, (iii) The District Engineer will hold public hearings when response to a public notice indicates that all parties will not have an opportunity to be heard except at a public hearing, (iv) Besides weighing all factors in granting a permit the District Engineer shall, when advised by the Regional Directors that work proposed will impair water quality or related natural resources encourage the hopeful permittee to take steps to resolve the dispute at the district level and failing this shall refer the case to the Chief of Engineers —his counterpart the Regional Director submitting his views to his agencies “Washington headquarters” — for appropriate action, (v) Finally the Chief of Engineers and the Under Secretary of Interior shall consult and attempt to resolve any differences between their departments and failing this the case shall be submitted to the Secretary of the Army for decision after consultation with the Secretary of the Interior The Corps regulation §§ 209.120(e), (f) and (g) govern the applications for permits and the handling of these applications with regard to public hearings and notices to other agencies of federal and state governments. The regulations place the duty of giving both public notice and notice to the other agencies mentioned above on the District Engineer. The permit application must contain a sketch showing the location and extent of the work proposed. This sketch will accompany the Engineer’s notice. The regulations state flatly that “the public notice is mandatory, and no permit or extention of time in which to complete work authorized by a permit will be granted unless notice has been issued and a reasonable time afforded for a protest * * The period in which the permit is to be kept pending awaiting objections is set at a minimum of ten days after issuance of notice. The regulations further provide that under normal circumstances the period should be not less than 30 days after the actual mailing of notice, and a longer period can be afforded in exceptional or important cases. Public hearings are portant cases, provided for whenever it appears that there is sufficient public interest to justify such action and in case of doubt a public hearing is required. Cited as a specific example are cases in which there is general public opposition to issuance of a permit. Hearings, when held, are to be conducted in an informal manner, presided over by the District Engineer or his delegate with a full opportunity given each side to express their views. Formal adversary proceedings are not contemplated. In a sentence, the regulations-contemplate application, proclamation, coordination, information, argumentation, consideration and then determination. Whatever doubts there might be about the Third Circuit’s reading a permit structure into the related Refuse Act, 33 U.S.C.A. § 407 (§ 13 of the Rivers and Harbors Act of 1899) in United States v. Pennsylvania Industrial Chemical Corp., 3 Cir., 1972, 461 F.2d 468, cert. granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662, it is positive that § 10 (33 U.S.C.A. § 403) is structured on a permit basis. Indeed the Act itself, by its very terms makes it unlawful “to excavate or fill * * * any navigable water of the United States, unless the work has been [i] recommended by the Chief of Engineers and [ii] authorized by the Secretary of the Army * * And the regulations, which are in no wise questioned here, specifically authorize an application for, and the granting of, a permit after the commencement or completion of the work, under appropriate circumstances. After-the-fact permits — so vitally important to whatever chances Moretti has for saving the Hammer Point project— are specifically recognized in the Corps regulations. Read in conjunction with all the regulations, the regulations coneerning after-the-fact permits provide that they be processed in the same manner as other permit applications. These procedures were not followed to full completion of the administrative processing of this application in this case. This is of great import to what we do in this opinion. So long as that regulation stands the Department of the Army was required to respect it. Cf. Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; and see Schatten v. United States, 6 Cir., 1969, 419 F.2d 187; Smith v. Resor, 2 Cir., 1969, 406 F.2d 141; and Elmo Division of Drive-X Company v. Dixon, 1965, 121 U.S.App.D.C. 113, 348 F.2d 342. Moretti had a right to file the application and have it processed in accordance with those regulations. Conversely, the Corps of Engineers as the delegated agent of the Secretary of the Army had the duty to process Moretti’s application. But as it was, somewhere during administrative gestation the permit application was aborted, an event provoked by the mandatory injunction of the District Judge. The Buck Stopped Where? The record reflects without dispute that the resident engineer in the Miami Beach office of the Corps forwarded the after-the-fact permit application to the Jacksonville District Engineer’s office without objection. Both he and the responsible employee in the District Engineer’s office testified that in practice if the permit were a “routine case” in which no likely objection could be foreseen the District Engineer would grant or deny the permit. If controversy seemed likely or in fact developed regulations prescribed that the decision should be made by “higher authority.” Likewise, in practice, in approving the permit under usual circumstances the Jacksonville District Engineer committed to Mr. Arthur L. McKnight, Chief of the Operations Division, the authority to act for the District Engineer. That is, if the permit application, before the fact or after-the-fact, were approved by Mr. McKnight and the project was within the authority delegated to the District Engineer, Mr. McKnight would direct the final approval of the application and issuance of the permit in the name of the District Engineer. When Jacksonville received the permit application and found everything in apparent order it issued a public notice and informed the appropriate state and federal agencies as required by the regulations. The Florida authorities, after some indecision, stated that they had no objection to the completion or existence of the project. The Bureau of Sports, Fisheries, and Wildlife of the Department of Interior, however, objected to the granting of the permit and requested that the Corps of Engineers refuse to issue the permit. The Secretary of the Interior — speaking through his regional field representative — has literally adopted the views of the Bureau of Sports, Fisheries, and Wildlife. The Bureau of Sports, Fisheries, and Wildlife objected on the ground that to grant the after-the-fact permit would “provide official sanction to an illegal operation.” At this point the permit granting procedure seems to have ground to a halt and left Moretti’s application in a sort of limbo if not in fact stranded by the ubiquitous “sunken object.” Although standard procedure under the regulations would have been for the Jacksonville office to forward the application to Washington because of the objections of the other government agencies, nothing was done, that is, nothing was done by the Corps of Engineers on the application. Self Help For The Impatient? Despite the unrevoked order of the District Engineer to discontinue dredging, Moretti resumed working below the mean high tide line, apparently in early June 1971. Presumably, he simply decided that he had waited long enough for the Corps of Engineers to act on his permit and that it was time to resume the construction of Hammer Point. The permit application had been forwarded from Miami to Jacksonville on March 4, 1971. Notice had been given by the District Engineer’s office on March 17 stating that objections were due by April 16. Interior, as well as one state agency, requested a delay in the granting of the permit so that it would have time to respond adequately. Interior’s objections, voiced by Bureau of Sports, Fisheries & Wildlife, and echoed by the Regional Director were lodged May 3, and Moretti was informed of the objections. It does not appear that a public hearing was ever scheduled. Rumors that Moretti had resumed work reached the Jacksonville office which instructed engineer Ross of the Miami office to investigate the situation. On July 14, 1971 he found that Moretti had resumed, and substantially completed, work on the Hammer Point project. The Scene Of Action Shifts Pricked by Moretti’s disregard of the permit requirements the government lashed out on several fronts. An information was filed by Engineer Ross charging Moretti with a criminal violation of § 403 which is outlawed by 33 U.S.C.A. § 406 and Moretti was arrested July 15. While Moretti was appearing for arraignment on July 30, originally set before a magistrate but taken over by the trial judge, Moretti was served with the civil complaint seeking preliminary and permanent injunction of further operations below the mean high water mark and for relief in the form of a mandatory injunction forcing Moretti to undo the fruits of his labors, all as authorized by § 406. After a short hearing the trial court issued a preliminary injunction and proceeded to hear the case on the merits three weeks later. The court found, as is evident from the record, that Moretti had done substantial dredging and filling without a Corps of Engineers permit. The Court found the waters navigable, and determined that some of the work was done in the navigable water. The District Court ordered that the government should have all the relief it sought — -namely to have Moretti undo what he had done. Moretti challenged in the District Court and challenges on appeal the proof of a number of necessary elements of the government’s case under 33 U.S.C.A. § 403 and § 406. They are (i) whether the water in question is “navigable water of the United States,” (ii) whether the Mean High Water Mark was adequately proven, (iii) whether any obstruction to navigation had been created, and (iv) whether § 406 of the Act authorized the District Court to order the removal of a land fill as a “structure.” Navigability Florida Bay is located at the southern tip of the Florida peninsula and merges with the Gulf of Mexico on its western boundary. On the east, Florida Bay is adjacent to Biscayne Bay which leads to the Port of Miami. The length of Florida Bay is traversed by the Intra-coastal Waterway which runs from the Gulf and enters Biscayne Bay through Florida Bay. Although the record did not reveal the precise distance of appellant’s property from the Intracoastal Waterway, it is clear that it is in close proximity to this Waterway. The Coast and Geodetic Survey Chart shows that at its nearest point, the Intracoastal Waterway is less than one-half mile from Hammer Point. Navigability, even at a time when its requirements were more stringent, was simply a question of whether the waterway “in its natural and ordinary condition affords a channel for useful commerce.” The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871). Accessible as it is to both the Gulf of Mexico and -Biscayne Bay, and traversed lengthwise by the Intracoastal Waterway, Florida Bay is a natural passage for commerce and easily meets even -the historical-literal test of navigability. Of course, as with most bodies of water, there comes a point where the depth of water is minimal as the bottom slopes up to the bank. But one would hardly contend that the Mississippi is any less navigable simply because a pirogue would go aground at the water’s edge. Questioned directly as to the navigability of Florida Bay the Resident Engineer for the Corps testified unequivocally that Florida Bay is a navigable water. Indeed, if Florida Bay were unnavigable Moretti’s development of his property including finger slips and canals so that his mobile home park would be a “live-in marina” would be incomprehensible and obviously wasteful and a deception to purchasers who expected waterborne access to the sea, not the restricted movement in a short landlocked pond. Obstruction To Navigation Moretti’s argument that there was no showing of an obstruction to navigation, and hence that one element prerequisite to relief was missing from the government’s case, is unavailing. In light of Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 207 and United States v. Perma Paving Co., 2 Cir., 1964, 332 F.2d 754, any argument that the filling of navigable waters does not reduce navigable capacity of the filled waterway and thereby constitute an obstruction within the meaning of § 403 borders on the frivolous. Structures Moretti next contends that § 406 grants to the. District Court only the authority to cause the removal of “structures” from navigable water and that a land fill is not a structure. The meaning of “structures” in this provision has often enough been the subject of litigation that we have no doubt that it encompasses the land fills here in question. As the Supreme Court said in United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, its decision in Sanitary District v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352, is enough. In Republic Steel the Supreme Court held that accidental sedimentation which caused the filling of a navigable water constituted a structure within the meaning of § 406. This double-bottomed answer is enough for us. Mean High Tide Line A good deal is urged about Mean High Tide Line (MHTL). Just what bearing it has at this, not the enforcement, stage is not easy to say. Everyone apparently concedes that the mean high tide line is not a precise measurement. And all concede for this case that relief sought depends on the government proving that Moretti dredged or filled bayward of MHTL. For the Corps has no power landward of it to regulate his conduct or force reconstruction of the topography as it existed before he began work. The District Court agreed that that which was landward of MHTL would not, could not, and should not be affected by mandatory injunction. The record proof on location of MHTL took two forms. The first was on the trial. The second, as a part of the plan to be filed by Moretti outlining the method to be followed in restoring the prior condition. On the trial, the government called a civil engineer, Mr. James Glass, employed by Moretti in designing the Hammer Point project and in soliciting the after-the-fact permit from the Corps of Engineers. The MHTL was indicated on the sketch which accompanied the application for the after-the-fact permit. Engineer Glass testified that he placed the MHTL from aerial photographs taken before the project got underway. The District Court accepted this determination as correct, but whether the Corps of Engineers ever did is unknown since the permit application aborted. The Resident Engineer also testified as to the location of the MHTL. He stated that normally the MHTL would be located by visual observation, which, however, would be impossible in an after-the-fact situation. The upshot of his testimony was that he had presumed the location of the MHTL from the permit application supplied by Moretti. Actually, the Court did not undertake to fix MHTL. His final order in a negative sense prohibited further activity bayward of it. And the hotly contested mandatory injunction simply ordered Moretti (i) to restore the prior conditions bayward of MHTL and (ii) to file a formal plan showing in detail how the work was to be carried out. As a part of the formal post-decree plan Moretti included a plat prepared by Mr. Post, an engineer associated with the same firm as Mr. Glass, the engineer who drafted the after-the-fact permit application. Engineer Post’s plat shows, and Moretti cannot seriously dispute, that substantial areas of excavation and refill were bayward of MHTL. If Mor-etti challenges that, there is no mark of it in the record. Since there is no indication whether the District Court approved the plan it is unavoidable that the exact line may still be open to some question either in further proceedings before the Department of the Army, the District Court or both. But no action is yet before us which would call for any modification of MHTL. Court’s Use Of Negative — Affirmative Injunction Putting to one side the drawing of the exact MHTL we have no doubt that the Judge had the right to reach the conclusions that he did both on jurisdiction and the operational facts. It is equally clear that in the posture of the case as it came to him and as he handled it (see notes 30 and 4, supra, the Court had the power to issue appropriate injunctions prohibiting any further work. This authority is drawn not only from the Court’s equitable powers in carrying out the obvious policy of the Act but such relief is expressly authorized by § 406, see note 2, supra. And for the further guidance of the Court and the parties as this case now takes a new twist we have no doubt that the issuance of a mandatory injunction requiring extensive restoration operations at very large expense to the developers is entirely within the Court’s power as expressly mandated by the statute. Section 406 just plainly states, “the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist.” Thus, the statute itself specifically empowers the Court to do just what has been done. We do not mean to say here that in every case involving a violation of the Rivers and Harbors Act where no permit has been obtained and an order to cease operations has been issued the Court must impose such serious sanctions. But clearly the Court has the power to do it and we perceive nothing in this record which would compel us to say that in the Chancellor’s discretion he ought not to have imposed this very substantial burden upon this developer. But while we find ample jurisdiction, and on the record a set of facts which would otherwise authorize the stringent mandatory injunction of restoration, this part of the Court’s order must be vacated to permit the further proceedings on the application for an after-the-fact permit. The Scene Shifts Again Back To The Army As we have pointed out in great detail § 403 and § 406 with their complementary regulations are structured on a permit system. The statute itself is not to be read as prohibiting all such obstructions, but only those not authorized in accordance with the regulations. Those regulations prescribe also the right to seek an after-the-fact permit. Moretti has initiated this application. Through no apparent fault of his own and without his ever having withdrawn it the Corps of Engineers has either ignored the application or reached some undisclosed determination that because the United States Attorney has successfully been importuned to enter the case the Corps and the Department of the Army have no further obligation. We have held above and repeat again that this is simply not so. Since the statute and the regulations recognize that the developer has a right to seek — not necessarily obtain —an after-the-fact permit and Moretti has undertaken to do this in a way not challenged for its procedural or substantive sufficiency, a Federal Judge has no power to cut off this statutory scheme and insert his judgment for that of a successive layer of experts in the Corps of Engineers, the Chief of the Engineer’s office, the Department of the Army, and now, in collaboration with the other departments or agencies under environmental statutes. Whatever difficulties Moretti may face in trying to persuade those authorities that he should have an after-the-fact permit he is entitled to have that application processed fairly and diligently with an opportunity as permitted under the regulations to present supporting data, facts and argument as to why such relief should be granted. Since the application is either still in the Jacksonville office or perhaps has died there, the Army somehow has to revive it, put it back on the tracks and start the machinery as contemplated by all of the regulations and the accord between the Secretary of the Army and the Secretary of the Interior and the application of all of the other environmental statutes and regulations. We do not undertake here to outline the scope and detail of those administrative proceedings. They must go on fairly as permitted by the regulations. As we read them, if there is a disposition to grant the after-the-fact permit by the Chief of Engineers and the Secretary of the Army they must then consult all of the other agencies concerned with environmental factors which as specified in pertinent legislation and regulations must be brought into the picture. We do think, however, that as a matter of primary jurisdiction it is in the administrative process that the MHTL must first be determined. For where the boundary of its authority is this elusive line, it should have the first opportunity to determine whether and to what extent the area is or is not within its jurisdiction. Federal Power Commission v. Louisiana Power & Light Co., 1972, 406 U.S. 621, 647, 92 S.Ct. 1827, 1842, 32 L.Ed.2d 369, 389; J. M. Huber Corp. v. Denman, 5 Cir., 1966, 367 F.2d 104, and Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84 (sequeled in Mobil Oil Corp. v. FPC, 1972, 149 U.S.App.D.C. 310, 463 F.2d 256, cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676, the D.C. Circuit reversed the FPC). This line limits the jurisdiction of the Corps of Engineers both negatively and affirmatively, and inescapably they must determine this as a part of the application now pending. Whether in the administrative process the agency should rely to a great extent upon the record and findings of the Court below is a matter for initial determination by it. Of course the action or non-action of the Department of the Army is judicially reviewable under the Administrative Procedures Act of 5 U.S.C.A. §§ 702, 704 (Supp. V 1970). This is precisely what occurred in Zabel v. Tabb, supra, and Bankers Life and Casualty Company v. Village of North Palm Beach, 5 Cir., 1972, 469 F.2d 994. The Scene Shifts Again — Back To The Court Below The upshot is that we remand the case for the Court to keep it actively on its docket. The prohibitory injunctions are to remain in full force pending final determination in the administrative proceedings and any appeals, administrative or judicial, therefrom. The mandatory injunction is vacated, subject to being reinstated on a proper showing after completion of the administrative proceedings and any appeal therefrom to the extent that the after-the-fact permit application does not authorize any or all of the work bayward of MHTL. Of course the Court is authorized to grant such interim relief as might be necessary on a proper showing to prevent further incursions into nature’s domain growing out of inaction either in maintenance or in nonrestoration because of the stay which we have heretofore issued. As a tag end, also for the guidance of the parties and the Court on proceedings on remand and after completion of the administrative process, we reject the contention of Moretti that a District Court, as would an administrative agency, is required to obtain an impact statement and go through the procedures set forth in the intricate structure of environmental statutes and regulations where it is otherwise appropriate for an injunction to be issued on equitable principles or because of statutory standards or policies. The Judge should, of course, be conscious of the ecological factors and in many cases it would be appropriate, and in some it might be essential, that he call in the appropriate agencies, state and federal. But the Judge does not have to involve himself in the sometimes impossible task of writing an impact statement that will satisfy all. Vacated in part and remanded. . Rivers and Harbors Act of 1890, 26 Stat. 426, shortly replaced by the Act of 1899, 30 Stat. 1121, now found 33 U.S.C.A. §§ 401-426Í. See Environmental Law: The Rivers and Harbors Act of 1899 — a new remedy for illegal dredge and fill operations, 24 Fla.L.Rev. 795, 796 n. 11 (1972). . Section 10 states : The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited ; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. The statutory authority for the injunction is found in § 406 which states: Every person and every corporation that shall violate any of the provisions of sections 401, 403, and 404 of this title or any rule or regulation made by the Secretary of the Army in pursuance of the provisions of section 404 of this title shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney General of the United States. . Without a doubt the Judge was moved because of ecological not navigational factors. He found that the adverse ecological consequences of the dredging and filling operation included the destruction of habitats of a large number of wading birds (including roseate spoonbills, reddish egrets and herons), removal of peat from the bottom of the bay deleteriously affecting the ability of the shallow water to support marine life, elimination of mangroves which play an important role in the ecology of the area, and significant injury to sport fishing in the area. . Our not reversing the District Court expresses no approval of the cursory pro- ■ cedural aspects of the proceedings below. The haste with which the hearing and rulings were announced might well have been less than acceptable and required a remand, but the appellant expressly waived these objections at oral argument in favor of a ruling on the merits. We would say, however, that the inordinate swiftness probably accounts for the court, presumably on the government’s insistence, paying no attention to the administrative structure built into the Act. . 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808. See Environmental Law — Consideration Must Be Given to Ecological Matters in Federal Agency Decisions, 71 Boston College Ind. & Comm.L.Rev. 674 (1971) ; Comment, 50 B.U.L.Rev. 616 (1970) ; Note, 19 Kan.L.Rev. 539 (1970) and Note 16 Vill.L.Rev. 766, 778 (1971) which describes Zabel as “an important innovation in the struggle to preserve the environment of the coastal zone.” Of., The Refuse Act Permit Program: The Corps of Engineers’ Role in Enforcement and Administration, 9 Efouston L.Rev. 683 (1972). . See footnote 1, supra. The sections of the Statute as enacted, e. g., § 10, do not correspond to the Sections of the Statute as codified in 33 U.S.C.A. §§ 401-426Í. Section 10 of the original act is § 403 of 33 U.S.C.A. This is pointed out for no other reason than to save the reader the possible confusion which might be encountered. . See, e. g., § 403 of 33 U.S.C.A., note 2, supra, the Section which defendant Mor-etti failed to heed. In this section Congress has required that certain permits not be issued unless “recommended by the Chief of Engineers and authorized by the Secretary of the Army.” . § 209.120(c) (l)(i). . § 209.120(c) (l)(ii). . § 209.120(c) (1) (iii) : Division and District Engineers. The Chief of Engineers has authorized Division and District Engineers to issue direct from their own offices, in the name of the Secretary of the Army, permits under Sections 10 and 14 of the Act of March 3, 1899, for work and structures in or over navigable waters in cases which are entirely routine and which involve no doubt as to the law, facts or regulations nor any opposition or other consideration which should be decided by higher authority. A case is held to be entirely routine, as determined by the Division Engineer, if the approval of the plans would unquestionably be given were the matter presented to the Chief of Engineers and the Secretary of the Army. The mere fact that proposed work is extensive in scope does not necessarily remove it from the class of routine cases if no possible objection to the work can be foreseen. Applications for permits for works in navigable waters which extend a reasonable distance beyond harbor lines will be considered routine, if they otherwise conform to the foregoing criteria. The after-the-fact permit procedures, discussed in text, infra, so vitally important to appellant, are treated for purposes of delegation of authority to District Engineers just as any other permit. That is, subject to the special restrictions, infra, the District Engineer handles these as he would any other “routine” permit application. . Section 209.120(d) (1). . As to the regulations see, e. g., § 209.120 (d) (3). “Consideration is given to the effect of proposed coastal structures or improvements upon existing navigation projects and upon adjacent shore properties * * *>’ The statutes, executive order, and agreement, are discussed in text, infra. . Executive Order 11288 is transplanted and summarized by.the Secretary of the Army in § 209.120(d) (8). . Id. . See, Fish and Wildlife Coordination Act, 16 U.S.C.A. § 661, et seq., Fish and Wildlife Act of 1956, 16 U.S.C.A. § 742a et seq. Perhaps the largest raptor to be added to the statutory ecological protection aviary is the National Environmental Policy Act of 1969, §§ 101-207, 42 U.S.C.A. §§ 4331-4347. In Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808, we held that the Act’s § 101 has talons meant neither to be ineffectively blunt nor always remaining on the wrist, only mockingly suggesting fierceness of their ever tethered bearer. Rather, with this tool, the Secretary of the Army is empowered— indeed required — to “consult with, consider and receive” information regarding the nature of work sought to be done and to seek out those permit applications which should not be granted and interdict their flight. . The memorandum is set out in its entirety at 33 O.F.R. § 209.120 beginning at page 322 (1972). . Section'209.120 (f)(1). . Section 209.120(f) (5). . Section 209.120(g) (1) and (2). . Section 209.120(g) (4). . See note 2, supra. . Id. . Section 209.120(c) (1) (iv) states: Construction and Other Work Performed Without Prior Authority. (a) District Engineers are authorized to approve plans for structures and work of the classes for which they are authorized to issue permits when the application for approval is submitted after the commencement or completion of the structures or work, subject to the following: (1) Approval will be limited to those cases where the necessary primary authority, State or Federal as the case may be, validly exists, when the work was innocently constructed, and when there is no objection to the work, (2) The applicant will submit the plans in the prescribed form, (3) Notice of the application will be duly issued (4) The approval will be issued in the prescribed form, Eng Form No. 96c, W.D., Eng., (5) The approval will be signed and recorded as prescribed for permits, (6) Application for approval of plans for work which has been completed requiring actions by higher authority will be reported as prescribed for permit applications, and (7) When forwarding approval, the applicant will be informed that the law contemplates prior approval, and that, in the future, plans must be submitted in ample time for their consideration by the Chief of Engineers before construction is started. . It is not clear whether the Resident Engineer made a recommendation that the permit be granted or simply forwarded the permit without objection. In either case his sending the permit to Jacksonville from Miami was in effect an endorsement of the application since he testified that if he had objections to the application he would normally return it to the parties with requests for alteration. . See, § 209.120(c) (1) (iii). . Id. Of course what passing the application to “higher authority” entails is detailed by the applicable statutes and the memorandum of understanding between the two Secretaries, as well as the substantive and procedural requirements of the Corps of Engineers’ regulations, supra. . See note 10, supra. . See notes 15 and 17, supra. . It is at least arguable that this is an insufficient ground for “objection” under a permit structure which allows for after-the-fact permission. However, since the letter of objection from the Bureau of Sports, Fisheries and Wildlife stated that Moretti’s own actions had made it impossible to tell how much damage had been done they would object on this seeming clean hands/policy ground. It is not completely clear whether they were saying (i) Moretti made it impossible to tell how much ecological damage had been done so we will presume that more than a tolerable amount had been done or (ii) Moretti is a bad fellow and should not be given a permit since we would be condoning his actions or (iii) both (i) and (ii). The Environmental Protection Agency did not object to the issuance of the permit. It suggested — without reference to the permit application — that the case be investigated and that legal action be initiated for any damages to the environment. But with the Executive Branch having importuned its Department of Justice to seek court relief on the ground of ecological damage, it is plain that in any Corps proceedings this would have been a significant if not decisive issue. . Perhaps one reason that we are not entirely sure what happened to the permit is’ that Mr. McKnight, the Chief of the Operations Division of the Jacksonville office, retired on May 31, 1971. No one else from the Jacksonville office testified and no effort was made by the government to show what happened to the application after he left. . There was also apparently some problems with the technical adequacy of Moret-ti’s permit application. It was discovered in Jacksonville that the application apparently did not show one of the channels that Moretti had dredged. He ac-knowleged this deficiency in a letter to the Corps and although it appears to have been one of the problems in granting of the permit it was a mere technical imperfection which from all appearances could have been easily corrected. The record does not suggest that it caused the Corps to abandon its standard orderly permit processing procedure. . See note 2, supra. . Id. . Biscayne Bay has long been judicially recognized as “navigable.” See Miami Beach Jockey Club v. Dern, 1936, 65 App.D.C. 369, 83 F.2d 715, cert. denied, 299 U.S. 556, 57 S.Ct. 17, 81 L.Ed. 409. . C&GS, 850, August 1972. What is for mariners to rely on may safely be used by Judges. See, De Bardel-eben Marine Corp. v. United States, 5 Cir., 1971, 451 F.2d 140. The chart shows a depth of 2. feet along the north edge of the key in the Hammer Point area. . “The test laid down in the DANIEL BALL was generally adhered to by the Supreme Court until the decision in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, in which the Court gave the term ‘navigable water’ in the Federal Power Act a broader construction than that laid down in the DANIEL BALL and in the decisions that followed it.” Georgia Power Co. v. Federal Power Commission, 5 Cir., 1946, 152 F.2d 908, 912. The expansion of the concept of “navigability” was to include the capacity for reasonable improvements as an indicia of the ability of the waterway to support commerce — whether presently or potentially. . We hold — disclaiming any novelty for this conclusion — that any filling of navigable waters creates an obstruction to navigation. . See note 2, supra. . See Note, 24 U.Fla.L.Rev. 795 (1971). . Perhaps we should call that which was under water before excavation the “bot-tomography.” . The findings of fact and conclusions of law of the District Court appear at 331 F.Supp. 151 (1971). . Although referred to in testimony these photographs are not part of the record in this case. They apparently were not admitted as exhibits in the District Court. These photographs were also the basis for the restoration plan map. See note 45, infra. Some other photographs, taken in 1947, which one witness testified represented the shoreline in 1969 as well as 1947 were not made a part of the record on appeal, although they were admitted in the District Court. . The negative feature of the order stated that Moretti and his company “are permanently restrained from further violations of Title 33, United States Code, Section 403 and that they are permanently enjoined from conducting any further excavation and alteration of the condition and capacity of Florida Bay at Hammer Point, Key Largo.” . Moretti has been “permanently enjoined and directed to remove all fill, sand, rock, gravel, rip-rap, and material of any other description the defendants caused to be placed at their trailer park development property located at Hammer Point, Key Largo, bayward of the mean high water mark that existed prior to the defendants’ operations in this area, and to restore the navigable capacity of Florida Bay to its original condition as that bay existed at Hammer Point prior to the defendants’ development operations.” . As the Court pointed out, and the order provided, special care had to be exercised during the restoration work to avoid further ecological damage. The order commanded: “And further, the defendants are directed to present to the Court within twenty (20) days of the issuance of this order, adequate plans for the safe removal of this material so as not to interfere with marine or plant life in Florida Bay by the causing of excessive siltation or turbidity. The defendants are directed to outline in this plan the following: (a) The equipment to be used in the removal of said material; (b) The procedures to be taken to safeguard Florida Bay; and (c) The estimated time requested for compliance with this order. Upon approval of this plan by the Court, defendants are directed to immediately begin removal of said fill.” . Moretti filed a plan calling for extensive removal and refilling but then sought supersedeas to the injunction while perfecting his appeal from the outcome below. The Court required supersedeas in the amount of $1,000,000 which Moretti was unable to meet. However, the enforcement of the injunction was stayed by the granting of a temporary emergency stay by this Court, which has remained and is still in effect. . Although we think this is a matter for initial determination in the further administrative proceedings which we require, one of the things which Moretti emphasizes that makes the result so harsh is that his is just one of a number of like projects which had therefore been either approved by the Engineers or to which they raised no objection. This throws in a sharp conflict the claim of equal protection — or perhaps more accurately an equal right to violate the law — a sometime facet of equal protection which is today a very appealing claim, on the one hand, and the incessant demand from environmentalists that what has gone on in the past can no longer be tolerated and the time has come to start cleaning up no matter how much it hurts, on the other. Cf., Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, note 5, supra. . It might be argued that the Army need not consult anyone if after appropriate hearing it decides on its own that no permit should be granted on the theory that there is no “impact” on the environment if it is denied. We have, however, questioned this narrow reading of “impact”, although in quite a different context. See, Hiram Clarke Civic Club, Inc. v. Lynn, 5 Cir., 1973, 476 F.2d 421; and cf; Save Our Ten Acres, et al. v. Kreger, 5 Cir., 1973, 472 F.2d 463. . This Circuit has — we think with wisdom —been cautious not to trample the primary jurisdiction of administrative agencies. See A.T.A. of Texas v. King, 5 Cir., 1965, 349 F.2d 873, 883; and International Paper Co. v. FPC, 5 Cir., 1973, 476 F.2d 121 (Brown, Chief Judge, concurring) ; Bankers Life and Casualty Co., supra. . Since we vacate the mandatory injunction subject to reinstatement the stay heretofore issued is terminated on the issuance of our mandate. . We have done this hundreds of times in school integration cases.

Bankers Life & Casualty Co. v. Village of North Palm Beach

TUTTLE, Circuit Judge: These appellants complain of the order of the trial court ordering the Army Corps of Engineers to issue a permit for dredge and fill operations by the appel-lee, Bankers Life and Casualty Company on submerged land in Lake Worth, Florida. The land in question is wholly enclosed within the Village of North Palm Beach. Bankers also owned approximately 288 acres of land within the municipal limits of the Village, which land is riparian to Lake Worth, a navigable water of the United States which opens into the Atlantic Ocean. The order which Bankers sought, and which was a subject of the trial court’s order, was to permit Bankers to dredge and fill an additional approximately 194 acres of the submerged land adjacent to its property by utilizing material from the bed of Lake Worth. The history of this effort by Bankers to turn part of the waters of Lake Worth into land may be summarized as follows. On April 17, 1957, Bankers paid the Florida State Board of Trustees of the Internal Improvement Trust Fund of Florida (the state agency which at that time could appropriately deal with the matter) the sum of $26,000 for the use of 2,500,000 cubic yards of fill. Much of the fill, approximately 1,116,170 cubic yards, was consumed in the filling of other lands by Bankers and is not part of the subject matter of this action. On February 15, 1957, Bankers applied to the Corps of Engineers for a permit to fill the property, and this was granted on or about April 29, 1957. There was nothing in the Federal Statutes at the time that required the Corps of Engineers to consider conservation, and there is nothing in the record to indicate that any study of possible ecological effects was made at that time. The permit which was issued carried the following statement on its face. “That this instrument does not give any property rights either in real estate or material, or any exclusive privileges.” It also stated that: “If the structure or work herein authorized is not completed on or before the 31st day of December, 1960, this permit if not previously revoked or specifically extended, shall cease and be null and void.” At the request of Bankers, the Corps, in December, 1960, extended the permit to December 31, 1963. The extension also contained the statement that if work authorized by the permit was not completed during the period of extension the permit would become null and void if not previously revoked or specifically extended. On December 16, 1963, the Trustees wrote the Corps a letter requesting that final consideration of Bankers’ application for another permit extension be deferred pending Bankers’ receipt of a local fill permit in accordance with Florida Statute Section 253.-124, F.S.A. The Corps agreed to defer Bankers’ permit extension and on December 27, 1963, informed Bankers that it would not be possible to grant an immediate extension at that time because of Corps policy when there was local objection. For several years no further action was taken as between Bankers and the Corps of Engineers. During this time various attempted settlements of disputes were negotiated between Bankers, the State of Florida and the Village of North Palm Beach concerning the title of the submerged lands sought to be filled. On December 6, 1968 and March 17, 1969, Bankers corresponded with the Village in an effort to obtain a local fill permit. In June, 1969, the Village informed Bankers that a permit would be granted; however, shortly thereafter on July 10, 1969, the Village undertook to rescind this action. By letter dated July 10, 1969, the same date as the meeting of the Village Council rescinding the action of June, Bankers addressed a letter to the Corps of Engineers stating that a permit had been received by letter from the Village of North Palm Beach and stating that “in as much as there were no other objections to the extension of the permit, as stated in your letter of December 27, 1963, to us, I trust this removes the final obstacle and you will grant the extension requested promptly.” The Corps of Engineers, obviously not desiring to resolve any underlying disputes as to whether the requirements referred to in the original request to the Corps from the Trustees had all been met, responded by letter of July 18, stating “it will still be necessary, however, that the written approval of the Trustees of the Internal Improvement Fund be furnished before further action can be taken on your application.” The status of the matter thus was that the state agency had requested that the application be held up in December, 1963. The Corps of Engineers had held it up, indicating that once the matters referred to in the state’s letter were cleared it would be the purpose of the Corps of Engineers to proceed with an issuance of the extension. However, it was not until more than five years later that Bankers undertook to inform the Corps that it considered the conditions previously existing to have now been satisfied. The Corps of Engineers, quite appropriately, we think, deferred its action until it obtained a “go ahead” from the Trustees, the state body which had originally requested the deferment of the issuing of the permit. Subsequently, Bankers instituted this suit requesting the district court to compel the district engineer, the Secretary of the Army and the United States to renew the permit or to issue a new permit. The theory on which the plaintiffs’ case was based was that the Corps of Engineers would have issued an extension of its permit but for the intervention of the Trustees; that the Trustees’ request to the Corps to withhold the extension “pending granting of local fill permit in accordance with Section 253.-124, Florida Statutes, 1957,” was a gratuitous interference by the Trustees in a matter in which, under existing Florida law, it had no power to act. The trial court accepted this theory. It held that the 1957 Act prohibiting the acquisition of submerged lands by dredge and fill methods was not appliea-ble to Bankers and that neither the Trustees nor the Village had any authority to interfere with its continued operation so long as the Corps of Engineers kept its permit in effect. The trial court issued its mandatory injunction directing that the Corps of Engineers grant the permit without reference to the position either of the Village or the Trustees, and without any consideration of the effect on either the ecology or the Village or state interests that, during the period of inactivity by Bankers, had come much to the fore both in state and federal legislation relating to submerged lands. Cf. Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199. The court also decreed that Bankers be permitted to dredge and fill without permit from either Village or Trustees, and that, upon completion of such activity, title should be quieted in Bankers as to the lands thus created, all under the savings clause of the 1957 statute. We have little difficulty in disposing of the government’s appeal. The trial court clearly erred in enjoining the Secretary of the Army and the Corps of Engineers “to issue immediately to plaintiff, Bankers Life and Casualty Company, a good and sufficient extension of its permit to bulkhead and fill the submerged lands surrounding its real property, in accordance with all of the terms and conditions of the plaintiff’s permit which expired on December 31, 1963, the term of the permit to be for three years from the date the permit is issued.” For the purpose of discussion of the government’s appeal, we will assume that the Trustees incorrectly construed the 1957 statute as requiring Bankers to obtain a permit from the Village of North Palm Beach before dredge and fill operations could be undertaken within the village limits. Nevertheless, no authority of any kind is cited to justify the court’s decision that if the Trustees’ objection to the extension of the Corps’ permit was improperly based, the Secretary of the Army could be required by what is, in effect, mandamus, to issue a permit in light of all the ebbing and flowing of the tides of change with respect to the duty of the Secretary of the Army in dealing with requests for such permits, by the time Bankers got around to making an affirmative demand upon the Corps of Engineers for a renewal of the permit. Bankers, so far as this record discloses, was content to take no legal action to test the correctness of the Trustees’ position or the Village’s position for more than five years after being notified that the Corps of Engineers would not renew so long as objection was filed by the state agency involved. That five-year period, plus the time that elapsed before the entry of the final judgment in this case, is the point of time to which we must look. See Zabel v. Tabb, supra, where, speaking of the National Environmental Policy Act of 1969, 42 U.S.C.A. §§ 4331-4347, this court said: “This Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man’s environment. “Although this Congressional command was not in existence at the time the permit in question was denied, the correctness of that decision must be determined by the applicable standards of today.” Bankers is not in a position to complain if, during the period of its own lack of effort to force the matter to an issue, the requirements on the Corps of Engineers for the issuance of a permit, although still couched in terms of “navigation,” included by the time the law suit was filed, much more stringent requirements. It is clear that the district court had jurisdiction to entertain the claim against the officials of the Corps of Engineers as determined by the trial court. See Zabel v. Tabb, supra. From what we have already said by reference to the Zabel case, supra, it is clear that the Corps of Engineers does not grant or deny a permit as a purely ministerial act. Even though the letter to Bankers stating that but for the objection raised by the Trustees, the extension would be granted, the letter makes it plain that the policy of the Corps of Engineers was not to grant such permit until such objection was withdrawn. This, of itself, made it plain that upon the finding of no obstruction in navigation, the Corps was using discretion based on other grounds than those normally strictly identified with navigation in determining under which circumstances it would issue a permit. In Zabel we have delineated further considerations that now must be given to such an application. The last two sentences of Mr. McKnight’s letter read: “However, we will be pleased to grant the extension promptly upon withdrawal of the deferral request by the Trustees of the Internal Improvement Fund. The lapse in the permit will have no effect insofar as the Corps of Engineers is concerned.” (emphasis added.) At best for appellee, these sentences are ambiguous since a lapsed permit cannot be extended. Certainly these sentences do not purport to make a commitment which would in any way bind the Corps of Engineers or the Secretary of the Army to disregard any circumstance other than the lapse of the then existing permit in connection with the issuance of a new or “extended” permit. Moreover, it seems clear beyond peradventure, that no statement made by Mr. McKnight could prevent the Corps of Engineers from complying with later requirements imposed by subsequent legislation on the issue of a permit regardless of the good faith of the official in writing the original letter. What did affect the Corps of Engineers was the deferral request by the Trustees. That request clearly was at least partially based upon ecological and environmental causes, which the Trustees considered they had the right to have dealt with before withdrawing their objection. In the meantime, rather than filing a formal application with the Corps of Engineers, under which circumstances all of the inquiries which we have referred to at length in Zabel, would have to be made by the Corps before it could grant the permit, and without giving the Corps an opportunity to exercise its investigative and, at least partially, discretionary, powers, Bankers filed this action. The matter was not ripe for court action because the official of the government, who was empowered to act, had not been given an opportunity to perform the duties imposed on him by the federal statutes. As we said in Zabel: “When the House report [H.Rep. # 91-917, p. 5] and the National Environmental Policy Act of 1969 are considered together with the Fish and Wildlife Coordination Act [16 U.S.C. A. §§ 662(a)] and its interpretations, there is no doubt that the Secretary can refuse on conservation grounds to grant a permit under the Rivers and Harbors Act.” 430 F.2d 199, 214. The trial court erred in enjoining the United States officials. Disposing of the federal claim does not, however, end the need for appellate review here. This is true because the trial court also entered a decree which would quiet title in Bankers to newly-made lands, where formerly tidal waters flowed, contrary to what the Trustees and the Village authorities believed to be the applicable state law. We have held that, to resolve the Federal issue, we do not feel it necessary to decide whether Bankers was within the exemption of the 1957 statute putting an end to the acquisition of submerged lands in the manner in which Bankers here sought to accomplish it. This was so, because, as we have indicated, the Trustees were authorized to act as they did, even if they were in doubt, or even if there should have been doubt in their minds, as to whether the 1957 statute did exempt Bankers from its application. Since this matter relates to a serious question of title to submerged lands under somewhat unique and unlitigated Florida statutes we are reluctant to construe more of these laws than necessary in order to assure the parties that the judgment of the trial court has been adequately disposed of. For the reasons hereafter stated, it becomes necessary for us to construe only a small part of the statutory language and place it to determine that the decree quieting title in Bankers must be set aside and that phase of the case remanded to the trial court for further proceedings. In order to pose the issue as simply as possible, we state the contentions of the parties. It is undisputed that prior to the Act of 1957, which went into effect on June 11 of that year, a riparian owner could extend his lands over submerged lands adjacent thereto out to what we will simply denominate as “the channel.” This is variously described as “the bulkhead line” or “the channel” for navigation. By the Act of 1957, the state legislature undertook to abolish this means by which riparian owners could acquire title to accretions to their lands by filling in to the bulkhead line. The statute expressly reclaimed title in the Trustees of the Internal Improvement Trust Fund of the state of Florida for all such submerged lands. It made provision for the manner in which such lands could thereafter be disposed of, even to riparian owners. The disagreement comes by virtue of the fact that Section 11 of the 1957 Act provides as follows: “The provisions of this act shall not affect or apply to the construction of islands or the extension or addition to existing lands or islands bordering on or being in the navigable waters as defined in section 253.12 herein of the state which was commenced or application for permit to fill which was filed with the United States corps of engineers prior to the effective date of this act, as to the lands or bottoms.” (Emphasis added). Chap. 57-362, General Laws of Florida, 1957. It is undisputed that on June 11, the effective date of the Act, Bankers had received a permit, issued in April, 1957, granting permission to dredge and fill the lands adjacent to those which were held by it as riparian owners. It is also conceded that Bankers purchased from Trustees 2,500,000 cubic yards of fill material to be dredged from the bed of Lake Worth, and that “in 1957, 1958 and 1961” Bankers filled a portion of its submerged lands under this permit.. It is also agreed that this permit expired by its own terms at the end of three years, or on December 31, 1960, and that it was renewed by the Corps of Engineers for an additional three years, thus expiring on December 31, 1963. Bankers’ first argument is that the application for permit to fill which was filed with the United States Corps of Engineers prior to the effective date of this Act,” encompasses the situation in which it found itself in that it not only had filed such application, but it actually had received a permit. It says that this permit was then extended for an additional three-year period, and would automatically have been extended for an additional period, but for the “illegal” intervention by the Trustees when they asked the Corps of Engineers not to give consideration of such further extension until such time as Bankers complied with Section 253.124, Florida Statutes, F.S.A. (described above). Of course, it is Bankers’ position that by virtue of the exemption in the 1957 Act there was no requirement that Bankers comply with such section. While for the purpose of this discussion we may agree that, as to the first three year permit, Bankers would fall strictly within the exemption language of the 1957 statute, the Trustees make a strong case for the proposition that the statute section must be construed strictly since such savings clause continued divestment of public lands in derogation of what has under the general provision of the law become a sovereign trust, citing State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930), 3 Sutherland, Statutory Construction, Sections 5501-06; 4937, 6503, 3rd Edition (1943). The Trustees take the position that the savings clause exempting from the operation of the new statute those who had a pending application for a permit before the Corps of Engineers be construed in any manner which would result in giving the exempted riparian owner any greater rights than were actually contained in the permit when issued; that the permit which, in this case, had already been issued, expired by its own terms in 1960; that any application thereafter for such a permit or extension would not activate the exemption because such application would not have been one which had been “filed with the United States Corps of Engineers prior to the effective date of this Act.” Thus, the Trustees say, it would stand with an application for extension made in December, 1963, the one on which Bankers here must base their ease. Moreover, the Trustees, in effect, state that the power of the court to require the issuance of a permit at the time of trial must be faced at the time when the new application was made to the Corps of Engineers, after Bankers claimed to have received a valid permit from the Village of North Palm Beach. This application was formally made on July 20, 1969. The Trustees undertake to bolster their position with respect to this view by citing an opinion of the Attorney General of the State of Florida to the following effect: “(1) The holder of an unexpired U.S. permit qualified to fill under Section 253.0013(2), FS. [F.S.A.], but who has not filled, is permitted to fill the submerged land as limited by the permit which he holds. If he desires to purchase rather than to exercise his right to fill, the provisions of the bulkhead law are applicable and there must be compliance with requirements for notice and advertising. “(2) Where a permit has expired or is extended by the Corps of Engineers subsequent to June 11, 1957, we feel that the provisions of the statute have not been met and that the exceptions from the provisions from the so-called bulkhead law are not appliea-ble. The applicant must then purchase as required by law. “(5) Since the exemption is to be strictly construed, any change in the permit as originahy issued, whether by way of extension of time or area covered, is not in compliance with the exception of the statute. The holder of the permit as modified or extended has no right to be accepted under Section 253.0013(2) FS.” 1960 Attorney General Reports, 617-619. The Trustees further bolster their contention by referring us to what they call “the long standing administrative interpretation set forth in Rule 18-2.11 (formerly Rule 200-2.11) Florida Administrative Code.” This interpretative section provides “Limitation defined for exemption under Section 253.0013(2) FS. Exemptions set forth in Sections 253.0013(2) (FS) are operative only for (1) the unexpired period of the U.S. Army Corps of Engineers permit in effect June 11, 1957, or (2) the initial permit period for which the U.S. Army Corps of Engineers granted a permit pursuant to application pending June 11, 1957 and such exemptions will not be subject to extension.” We have gone into some length in discussing whether the exemption in the 1957 statutes applies to Bankers to indicate that, at the very least, the Trustees may properly have had the legal opinion that they should intervene with respect to the proposed extension of the Corps of Engineers permit in December, 1963. Bankers relies, as they say in the brief, “strongly” on the case of Bay Shore v. Steckloff, 107 So.2d 171 (Fla.App. 1958). We find that this case does not touch on the issue which is contended for by the Trustees here. It is clear that in Steckloff the District Court of Appeals in Florida held that a riparian owner who found himself strictly within the language of the exemption section of the statute, that is, one who had an application actually pending before the Corps of Engineers at the time of the effective date of the law, was entitled to dredge and fill under the old law during the period of the permit actually granted by the Corps as a result of the application which was pending on June 11, 1957. This does not reach the question whether a subsequent application for extension would bring such land owner within the provisions of the exempting section. We do not attempt to solve this question of Florida statutory construction dealing with submerged lands. We should not do so, because of a strange quirk of the case that we note upon a careful reading of the record and comparing it with the findings of the trial court. In what it denominated “findings of fact and conclusions of law,” the court said in paragraph 13: “ . It is the opinion of the court that the Trustees [in requesting a deferment by the Corps of Engineers] acted contrary to State law. Bankers had previously obtained a permit and had commenced filling the land now in question prior to June 11th 1957, the effective date of the law that the Trustees now rely upon.” (Emphasis added.) The pre-trial stipulation which appears to have been filed on December 20, 1970, contains a section titled “Concise Statement of Stipulated Facts Which Will Require No Proof at Trial, With Reservations, if any.” Paragraph 11 contains the following statement: “All parties were unable to agree whether shortly after the permit was issued, plaintiff Bankers began to fill the real property and submerged lands surrounding the real property and continued these filling operations until its dredge sank sometime later in the years 1957-58.” (emphasis added) Under a section entitled “Statement of Issues of Fact Which Remain to be Litigated at Trial” of the same stipulation, Paragraph 9 includes as one of the issues to be litigated at trial “whether Bankers began to fill the real property and the submerged land surrounding the real property and continued these operations until its dredge sank in 1957 or 1958.” Then on March 17, 1971, and apparently during the course of the trial, at the court’s suggestion, the parties filed a stipulation paragraph 2 of which contains the following statement: “Under the United States Corps of Engineers permit hereinafter mentioned, plaintiff has filled that portion of the property crosshatched in blue on the map and part of the isthmus between Munyon Island and the upland [this would be part of the lands with which we are here dealing.] Plaintiff does not have a deed to the area crosshatched in blue on the map. The filling took place after June of 1957 and was completed prior to December 31, 1963.” (emphasis added) Notwithstanding this explicit statement that the filling had taken place after June, 1957, the trial court was somehow persuaded to include in its findings of fact the statement quoted above from paragraph 13, “Bankers . had commenced filling the land now in question prior to June 11, 1957, the effective date of the law that the Trustees now rely upon.” This same inconsistency appears in Bankers’ brief filed in this court. Under a section in the brief entitled “Statement of the Facts,” there is contained a sub-heading “Summary of the Facts Contained in the Stipulation for an Agreed Case and the Exhibits.” In that section of the brief there is no statement to the effect that any of the filling had commenced prior to June 11, 1957. The statement is: “On or about April 29, 1957, the Corps granted Bankers’ permit Number 800-61 (57-103) to fill the submerged lands surrounding the real properties out to the bulkhead lines. Bankers filled the real property and the submerged lands surrounding the real property under the permit in the years 1957, 1958 and 1961.” Under a succeeding section, prior to the section entitled “Argument” there is what is stated to be a “Summary.” One paragraph of this summary states as follows: “On June 11, 1957, the Corps gave Bankers a permit to fill the submerged lands. Prior to that date Bankers filled in some of the submerged lands. Bankers is within the savings clause in FS § 253-135(2) 1969.” A careful reading of this record leaves us without any doubt that the date of June 11, 1957 was so critical with respect to the time of the commencement of the filling of the submerged lands that it is incomprehensible to this court how such misstatement of the facts could occur. However it may be, the finding of the trial court is clearly erroneous, for it is contrary to the stipulation entered into by the parties. Because of this fact, the judgment of the trial court to the effect that the exemption covered Bankers by reason of the commencement of filling prior to June 11, 1957 cannot be the basis for a judgment or decree interpreting the Florida statute. We consider it appropriate that this entire issue be remanded to the trial court for further consideration in light of the facts as disclosed by the record. This will also enable the parties more fully to develop their respective positions touching on the weight to be accorded to the regulations which we have discussed above and consider any other developments in the Florida law with respect to titles to submerged lands. None of the parties has suggested that this court submit this question by certification to the Supreme Court of .Florida as authorized under the Florida statutes. Nevertheless, if the trial court should deem it appropriate the court may withhold a decision with respect to this matter of land titles in Florida pending an opportunity to be given to the parties to litigate this issue in the state courts. The judgment of the trial court is vacated and the case is remanded to the trial court with directions to dismiss the suit for injunction against the officials of the Army and the Corps of Engineers and for further proceedings with respect to the claim of the plaintiff for a quieting of its title as may be consistent with this opinion. . Prior to the granting of this extension, the 1958 Fish and Wildlife Coordination Act, 16 U.S.C.A. § 662(a) had become effective. Before this suit was filed seeking a mandatory injunction, the National Environment Policy Act of 1969, 42 U.S.C.A. §§ 4331-4347, had become effective. The effect of these statutes upon the functions of the Corps of Engineers is discussed infra. . This letter is reproduced as follows: “With reference to your telephone conversation with Colonel Parfitt today concerning the pending extension of time of Department of the Army Permit No. 57-102 for the construction of bulk-head, dredging and filling in Lake Worth, information is furnished that no objections to the extension of time have been received from the standpoint of navigation and that it would be our plan to issue the requested time extension immediately upon termination of the notice period on 3 January, 1964 except for the receipt of a letter of the Trustees of the Internal Improvement Fund of the State of Florida under date of 16 December, 1963 requesting that final action be deferred pending granting of local fill permit in accordance with Section 253.124 of Florida Statutes of 1957. “In view of the request of the Trustees of the Internal Improvement Fund it will not be possible to grant an immediate extension of time since Corps of Engineers policy is not to grant permits for work which is in contravention to state or local laws. However, we will be pleased to grant the extension promptly upon withdrawal of the deferral request by the Trustees of the Internal Improvement Fund. The lapse in the permit will have no effect insofar as the Corps of Engineers is concerned.” This document is signed by A. L. McKnight, Chief of Operations division. . Simply stated, the argument goes that under the so-called Butler Act of 1921, riparian owners could, by the act of filling submerged lands adjacent to their uplands, actually acquire title to the new-made land. The statute of 1957 abolished this procedure and established title to submerged lands in the state, provided that thereafter such lands could only be disposed of by procedures that were not attempted to be complied with in this case. Bankers contends, however, that it was exempted from the 1957 law by a savings or “grandfather” clause, which reads as follows: “The provisions of this act shall not affect or apply to the construction of islands or the extension or addition to existing lands or islands bordering on or being in the navigable waters as defined in Section 253.12 herein of the state which was commenced or application for permit to fill which was filed with the United States Corps of Engineers prior to the effective date of this act . . . .” Bankers contends that since it had the permit from the Corps of Engineers prior to June 11, 1957, the date of the Act, it was protected indefinitely thereafter in its right to proceed under the old law, so long as the Corps of Engineers continued to grant extensions. Bankers also claims to have commenced filling on June 11, 1957. . The correctness of the Trustees’ Position will be discussed later in this opinion. . The government also contends that even though the extension had been granted in 1963, as requested by Bankers, it would have no more effect than the original permit and as to this, the United States contends that it would be revocable at will, citing for that proposition the case of Miami Beach Jockey Club v. Dern, 65 App.D.C. 369, 83 F.2d 715, cert. denied 299 U.S. 556, 57 S.Ct. 217, 81 L.Ed. 409, and United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063. The government thus says that even though the letter stating that it was the purpose of the Corps of Engineers to issue the permit under certain circumstances would be binding, this could not be any stronger than the permit itself, and, thus, no estoppel could arise even though an official, with authority to act, had expressly stated that such permit would be granted. We need not reach this point in order to decide that the case was not ripe for any injunctive or mandatory procedure against the federal defendants. . While Bankers say that the Attorney General is, in effect, a party to the litigation, and his opinion should have no more weight than the opinion of any other lawyer, at least we do note that this opinion was ante litem motam. . While we are told by counsel for the Trustees that this Administrative Code was first adopted in 1962 upon passage on the Florida Administrative Procedure Act, Chapter 120, Florida Statutes, F.S.A., we are not given the benefit of any further indication as to the weight, if any, which should be given to such administrative rules or regulations under the Florida law. . Arguably, if the filling had started prior to June 11, 1957, there would be a literal exemption within the statute, without regard to the duration of the Corps of Engineers’ permit.