F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 2 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GREATER YELLOWSTONE COALITION
and JACKSON HOLE CONSERVATION
ALLIANCE,
Plaintiffs - Appellants,
SNAKE RIVER FUND,
Plaintiff - Intervenor,
v. No. 03-8034
ROBERT B. FLOWERS, Commander and
Chief of Engineers, United States Army
Corps of Engineers, in his official capacity;
KURT F. UBBELOHDE, District Engineer
of Omaha District, United States Army
Corps of Engineers, in his official capacity;
CANYON CLUB, INC., a Wyoming
corporation,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 02-CV-1036-D)
Timothy J. Preso (Douglas L. Honnold with him on the briefs), Earthjustice,
Bozeman, Montana, for Plaintiffs - Appellants.
Aaron P. Avila, United States Department of Justice, Environment and Natural
Resources Division, Washington, D.C. (Thomas L. Sansonetti, Assistant Attorney
General, Washington, D.C.; Matthew H. Mead, United States Attorney, Cheyenne,
Wyoming; Carol A. Statkus, Assistant United States Attorney, Cheyenne,
Wyoming; Jon M. Lipshultz and Ellen J. Durkee, Attorneys, United States
Department of Justice, Environment and Natural Resources Division, Washington,
D.C.; and Gary M. Henningsen and Stanley E. Tracey, Of Counsel, United States
Army Corps of Engineers, Omaha, Nebraska, with him on the brief), for
Defendants - Appellees Robert B. Flowers and Kurt F. Ubbelohde.
Marc R. Stimpert (Franklin J. Falen and Richard W. Walden with him on the
brief), Budd-Falen Law Offices, P.C., Cheyenne, Wyoming, for Defendant -
Appellee Canyon Club, Inc.
Before EBEL, ANDERSON, and MURPHY, Circuit Judges.
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. §§ 4321-70f,
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 Edgcomb, 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.
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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. 1 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.
1
The Snake River Fund is listed as a plaintiff-intervenor but has not filed a
brief in this proceeding.
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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
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Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. 2 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
2
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.
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the Corps’ jurisdiction, thus triggering the need for a § 404 permit. 3 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.
3
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
(2001).
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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. 4 The construction would involve filling 1.45 acres and
dredging 1.71 acres of jurisdictional wetlands. 5 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.
4
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.
5
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.
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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). 6 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.
These easements would be in addition to an 85-acre conservation easement
6
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.
-8-
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 their 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. 7
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
The notice also indicated that “[a]ny person may request, in writing and
7
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.
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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
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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-skiing excursions operating out of the nearby
Snake River Canyon Ranch. 8
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
Helicopters have picked up skiers from Snake River Canyon Ranch,
8
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.
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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
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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
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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, 9 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, “[g]iven the
inherent right of land owners to develop their properties consistent with county
9
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.
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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. Vol. 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.
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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 enhance 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
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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.
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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). 10 The Corps may not issue a
10
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
(continued...)
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§ 404(b)(1) 11 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],
(...continued)
10
excluded from the permit requirement. Id. § 1344(f)(1).
Section 404(b)(1) directs that most permits be issued in compliance with
11
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).
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. . . 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 “fail[ing] 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
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whether wetland and bald eagle impacts could have been reduced by decreasing
the number of home sites in the planned housing development. 12
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
12
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.
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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), aff’d, 725 F.2d 677 (4th Cir. 1984) (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) (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 “[s]upplement 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
-22-
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 evidentiary support for such a conclusion. 13
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
In the TRO hearing before the district court, Mr. Edgcomb did claim that
13
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.
-23-
should reflect the significance and complexity of the discharge activity.” 40
C.F.R. § 230.6(b). They further state that “[a]lthough 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.
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
-24-
predicted to increase riffle and pool complexes on the Snake River, considered a
beneficial effect. 14
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
For this conclusion on the impact of bendway weirs, Pioneer and the
14
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 capricious. Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th
Cir. 2004).
-25-
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. 15 The record indicates that the bald eagles and their progeny cannot
15
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
(continued...)
-26-
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 837.
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 “[d]evelopment of the
Canyon Club property would facilitate activities that could have indirect effects on
15
(...continued)
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]lements 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 “[f]acilitating 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.
-27-
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.” 16 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
16
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 (1943))).
-28-
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 (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
-29-
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 forego 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
-30-
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 “[u]nique 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).
-31-
The appellants claim that “[e]ach of these factors required preparation of an
EIS in this case.” 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. 17
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
17
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.
-32-
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
-33-
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
determinative 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
-34-
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
“[r]esponses 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
-35-
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 forego 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
-36-
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,
-37-
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
-38-
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.
-39-
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
-40-
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
-41-
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.” 18
Appellants’ App. Vol. 2 at 257. Further, NEPA’s public involvement requirements
18
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.
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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
evaluat[ing] 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 circumstances 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 their 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.
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Greater Yellowstone Coalition v. Flowers
Court: Court of Appeals for the Tenth Circuit
Date filed: 2004-03-02
Citations: 359 F.3d 1257
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