## Facts

- The U.S. Forest Service authorized Loon Mountain Recreation Corp. to expand a ski area on the White Mountain National Forest through a special-use permit.
- The project substantially increased snowmaking and relied on a water-transfer plan involving two distinct water bodies: Loon Pond (high-quality, “Class A,” and used for drinking water) and the East Branch of the Pemigewasset River (lower quality).
- The plan drew water from the river, routed it through Loon’s intake and snowmaking infrastructure, and discharged it into Loon Pond; the pond then drained naturally back to the river.
- The Forest Service concluded that no Clean Water Act NPDES permit was required because the river and pond were hydrologically connected and the project did not involve an “addition” of pollutants.
- The Forest Service completed NEPA review, issued an environmental impact statement and a record of decision, and approved the project.
- Plaintiffs challenged the approvals under the Clean Water Act, NEPA, the APA, and Executive Order 11990; the district court granted summary judgment for the Forest Service.
- Plaintiffs appealed.

## Issues

1. Whether pumping river water through snowmaking facilities and discharging it into a higher-quality pond constitutes an “addition” of pollutants from a point source requiring an NPDES permit under the Clean Water Act.
2. Whether the Forest Service violated NEPA by failing to rigorously evaluate reasonable alternatives, including constructing on-site storage ponds instead of using Loon Pond for snowmaking supply/storage.
3. Whether the Forest Service’s remaining NEPA analyses and related APA challenges were arbitrary, capricious, or otherwise unlawful.

## Decision

- The First Circuit affirmed in part, reversed in part, and remanded.
- The court held the water-transfer scheme required an NPDES permit because it would add pollutants to Loon Pond from a point source.
- The court held the Forest Service violated NEPA by inadequately considering the alternative of constructing on-site storage ponds.
- The court otherwise upheld the Forest Service’s NEPA compliance on the remaining challenged aspects and found no separate basis for relief under Executive Order 11990.

## Legal Principles

- Under the Clean Water Act, an “addition” of pollutants occurs when pollutants are introduced into a navigable water from a point source, even if the pollutants originate in another navigable water within the same watershed.
- Hydrological connection between water bodies does not by itself eliminate the NPDES permitting requirement when a project transfers water (and its pollutants) into a distinct receiving water body via mechanical conveyances.
- NEPA requires an agency to take a hard look at environmental consequences and to rigorously explore and objectively evaluate reasonable alternatives; an EIS is deficient when it fails to meaningfully analyze a feasible alternative that could reduce impacts.
- Under APA review, agency action based on an erroneous legal interpretation or an inadequate NEPA alternatives analysis is unlawful as arbitrary, capricious, or not in accordance with law.

## Conclusion

The First Circuit required Clean Water Act permitting for the project’s transfer of lower-quality river water into a higher-quality pond through snowmaking infrastructure and ordered further proceedings because the Forest Service’s EIS did not adequately analyze an on-site storage-pond alternative under NEPA, while otherwise sustaining portions of the agency’s environmental review.


Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997)