thousand foot long rock jetty sticking up on the beach would block the natural close and along the shore dramatically eroding the last undeveloped beach on the island at a cost of millions of dollars of federal and local taxpayer money dollar agency said the terminal would destroy the ecological functioning of the area at every step in the permitting process or exaggerated economic costs and minimize environmental harm favoring the terminal  gave a fairly rational explanation for why it did that the economic costs were over thirty year period it showed and you see the drawings that showed at that corner of the east end of the erosion was actually getting up near the hoss's near the road and they took a thirty year period to compute the economic cost when it came time to evaluating the environmental harm they used a period gauged by the refurbishing plans that were done and they could not project beyond them because of the actual real life situations but they gave an assessment as to what was going to happen and what you're basically doing is trying to compare apples and oranges and they can't be compared they have to have different analyses and that was their explanation and it seemed they spent some time on giving that explanation and seemed quite rational it seemed it seemed to me your standard is to show that what they did in relying on that was unknown irrational and you suggest it was manipulative and they said basically say that this was dictated by the context circumstances and the psyche or cycling of the refurbishing of the beach under the federal project overall numbers a different issue we can go into that to amend the four hundred and eight thousand cubic yards as compared to what the last refurbishing was and there are some ups foundations for that to win and then that may be the most imperfect part of their analysis i think but i think your whole argument with respect to a thirty year analysis for the economic impact and the five year analysis for the environmental is totally justified by all the data they have the circumstances in real life and nobody has mentioned the fact that all the refurbishing is a recent reverberations were in a period of time when there were some huge hurricanes hitting that an attack the agency to conclude it was capricious you're going to have to examine what they gave as their reasons for doing it not that they were in your point sort of manipulative and dishonest they were trying to make a selection between five different proposals and they gave a reason why each one with the good or bad and they selected the th you have to come now and say that was unreasonable because we're not scientists we're basically assessing whether they conducted the necessary investigation and made a rational decision and so that's your task in proving it and i'm happy to hear it all but i can say the comparison between environmental analyses using a different time period than the economic almost doesn't make sense to me the way you argue it there is makes complete sense i think your argument about the four hundred and eight gunnison cubic yards is a good argument  and the question is is that enough to say number four i think your choice is number four right option for your out there is there's not the have to conduct they have to wait all the factors don't think that look at that everything that's happening in the court the court does have to look at everything that's happening and that's something where we i'm sure as the agency y absolutely and you know when it comes to the time frame i think the explanation given by the agency is irrational because you can't depend on sort of wiping the slate clean every two to five years but as an area that is most vulnerable then never wipe the slate clean what they did is they say the data change and for each five years and they have a different a group of data and therefore they cannot project data in the st five years into the nd five years they have to conduct a new analysis based on other factors that come in and change it but they're still looking at the same deal as as i understand it and i understand your position is that the beach down at the east end was clearly a road badly i've seen some pictures of it it was getting up to the near the streets in the houses and the  idea was to try to get sand and the beach there restored and the idea was this jetty this glowing would pile up the sand on the west side of the jetty but that naturally causes a vacuum on the east side so that the beach erodes more on the east side but that's only for a fairly short period and then you get turns a corner and the beach remains we'll watch and of course right across the and let the whole area is part comparing apples to apples oranges here and this case the impact is really the set of facts it's erosion and what is erosion due to habitat and the area and what is a russian due in terms of the raw model output for the purposes of measuring environmental arms from iran but rejected the same numbers and he different much higher number four times as hi economic yeah but when it measured the for five alternatives it did a more my consistent basis in other words the environmental assessments were the five alternatives were measured similarly and compared similarly and they five years for the economic costs were measured similarly what was not measured similarly as the economic costs were thirty year assessments and economic environmental were five year but they explained that as i pointed out and you haven't in my judgment pointed out that that was an irrational conclusion and as a matter of fact it seems to me from what they said it's almost the only way you could have done th knowing if they're going to be able to walk on the beach or be underwater if they're standing in the same light that white houses are going to be destroyed if any recess what the impact of the peace on developed areas where they recreate are and if those are compared in the same way at some possible for the public to evaluate any alternative and the situation if you only looked at the environmental impacts of the environmental impacts here you would the point that people are looking at it overall bundle of after each alternative and with the limits of that bundle the economic and and the environmental impacts are not on the same scale and they're all wildly different scale then you're going on here i think the idea that the core is sort of using a model for only relative purposes and relative comparison if that had been well we might be in a had we understand that you're telling us that we ought to treat you know and was in the same intuitively that doesn't that doesn't make sense in the understand the course argument to basically line up with that help me where we are in fact considering the same impact in two different ways and that's erosion it's how much sand is lost and so it isn't a situation where we are looking at one thing and degrees and one thing  it's not you know it should be this same comparison and when you do that alternately they're trying to project what the shoreline is going to look like under any alternative and instead of saying oh the shoreline is going to be here it's going to be this wind you're going to lose this sand and that means beach nourishment will cost x dollars and and you know this much habitat will be lost they're using two different shorelines for different purposes and when you do that it's not thought in this case your position was that the public got a lemon into the different treatment that was the subject in this griffiths presentation but st i want to start with a couple of things that she said at the beginning implying that the this terminal growing as a disastrous environmental project that ignored the advice of expert agencies that's just not the case it's contradicted by the wrecker on page one thousand four hundred and eighty five dollars of the joint appendix this terminal growing is described as leaky it's created with loose we placed armor stone and that will allow sand and water to flow through the growing and allow the passage of fish joint appendix of course engineering or predicted that for the st year there will be some erosion but in years to and three the area will stabilize and there will actually sand will actually be gained in that area and then rd in terms of the expert wildlife agencies i would direct the corps to pages two thousand nine hundred and ninety one and following that's the army corps actual permit and it incorporates six construction conditions from the national marine fisheries service and no fewer than twenty two terms and conditions from the u s fish and wildlife service project to comply with the north carolina agency's inlet management plan so the the advice of those agencies was in fact not acknowledged it was followed but jumping into the so called different deciding what details need to be included or omitted from an environmental impact statement is generally a matter left to the agency's discretion and so consequently as the district  not impose a requirement that the agency analyze impacts for any particular length john that's from page seventy two of the joint appendix the district court was quoting the self or conservation case from the circuit predictions for large scale and long term coastal changes are too difficult to make in the absence of the necessary capabilities for those predictions and conversely on page fourteen of six  the three year model simulation provided sufficient information on which to make engineering judgments and in fact the core speaking of apples to apples various alternatives have different nourished and so the court did give a rational explanation and going to the difference  between the evaluation of economic costs and environmental effects that too was rational and rationally explained and in particular  modeling process the so called delft three d model found that the court found that that accurately reflected erosion trends but it systematically underestimated the absolute volume of erosion and so the model required adjustment to more accurately estimate the absolute costs of beach re nourishment and property loss and the core forthrightly acknowledge that adjustment on page one thousand four hundred and five of the appendix so the plaintiff of course criticizes the corps for not making a similar adjustment asked to environmental effects but that decision was rational for two reasons one the economic cost of erosion is measured in large part human extent yards of sand that must be replaced and not a measurable volume but the environmental effect real world data to show that the model under estimated last sand volume and need of the adjustment mentions but no data indicated any problem with the estimate lost habitat acreage the nd point is that the adjustment for lost habitat eight ridge but the lack of adjustment for that a bridge made no logical or legal difference the crucial consideration for the environmental effect a given alternative is not its absolute size but its relative size this is most obvious in the clean water act requirement that the selected alternative must be the least environmentally damaging practical alternative and alternative that is the least environmentally damaging we'll have that even if all of the numbers are multiplied by four which is what planet seems to want here similarly if the projected difference in harm for each alternative is modest and plan of concedes that on page five of its reply are you then that difference remain modest if even even if all of the not numbers are groups and so look at both from the perspective of the time horizon and the adjustment for the different types of analyses the course decision was rational and explain that to the public sufficiently and that's excellent question and as i understand it it's because the same sand or sand at the same acreage is being lost over and over again and so it's a question that the modeling show the rate at which the sand would be lost didn't match the real world observations and so the corps needed to make that adjustment but in terms of where the sand is being lost it's the same it's the same place over and over again so the the sand could be lost slower or faster and that would change the volume of sand and the cost of replacing it but the five the terminal growing as the least environmentally damaging alternative because especially in the st five years that alternative required five hundred thousand cubic yards every scenario well your honor as as we've discussed the the clean water act requires the least and veyron mentally damaging alternative among those and came up with the bottom line conclusion on page two thousand eight hundred and five that the terminal growing alternative is the least environmentally damaging and i should point out that that conclusion  made clear that that alternative must include adaptive management requirements and particularly those in the so called inlet management plan and the core made clear that if if the growing doesn't work it will be modified or even removed and removed at the council expense and i was point out i think it's in condition fifty four  core make sure that the town provided financial assurance that it could do that if after doing all the required study and analyzing the data that the core determine that it needed to be modified or removed would and i guess i would say about that is it appears to be the kind of fly specking that this court condemns in case also involving the national audubon society that time against the department of the navy for twenty two her event cap in order to facilitate what it called an equitable comparison among competing alternatives as to frequency again we're trying to do apples to apples and the cat was based on the coerced three year budgetary and so we submit the choice that choice was within what the supreme court has called the bounds of reasoned decision making required by the a p a and i i guess my nd point in regard to the ca is that any error in this regard was harmless if the army corps had rejiggered the cap as plaintiff desired alternative for would not require in later years more frequent nourishment than  age twenty six of this reply three and as i pointed out before it's undisputed that alternative four would require nearly five hundred thousand more cubic yards still in the st five years support of the course bottom line conclusion that quote alternatives for will result in increased environmental impact and increased cost compared to alternative five unquote and that's it ages twenty eight dollars of two dollars three cents of the record in this case the town of ocean isle beach in the u s army corps of engineers proposed thoroughly studied alternatives for responding to a very great long term problem they chose the least environmentally damaging alternative and reasonably explain that choice that satisfied the corps obligation under both nepa and the clean water act the district court's judgment so holding should be affirmed thank you unless the court has any other questions th despite the town and the corps efforts the beach continues to erode the fall of one was in charge it would have done things differently but that's not the law agencies are entitled to select their own methodology as long as the methodology is reasonable in this case the corps methodology was reasonable recorded not model two different shorelines it was attempting to answer two very different questions how much would it cost to implement each alternative over a thirty year period and i never thought we'd be talking about case but that's exactly what the court was trying to do it was trying to compare apples to apples the court disclosed the limitations of its models to predict habitat changes and environmental costs it wasn't trying to predict things with absolute certainty it was interested in the relative differences between each alternative were looking at environmental costs the corps had fallen down and question  developed like sort of undeveloped right yes so you have the islands developed and then the last section of the island is undeveloped and that that end of the island has grown over time as sand has been put on the beach it's been transported to the east extending that area  the problem with nourishing that end of the island is that it's quickly lost into the channel and so it's correct that that section of the island will not be were nourished but what what audubon focuses on is the model results one year after the the growing is constructed in one section of the beach and audubon claims that it will be dramatically eroding the record doesn't record supports that following that initial equilibrium equilibrium so the whole purpose of alternative five is to not only protect houses and infrastructure it's also allow sin to be continued transported to that end of the argument if the analysis is wrong or has conditions changed there are enforceable mandatory mitigation measures that are in place so in other words really what the court was trying to do was compare apples to apples here and it did that  equilibrium by their placing sand on the beach or putting a structure in place the natural environment will try to respond to that and so there is a period of time that it's trying to reach that equilibrium and that's what the model shows the model shows that that section of the beach east of the growing will initially erode but in years two or three after the growing is in place that section of the beach will actually equilibrate or gang sand  standing on the sand and other nd section of the wrecker and your foot under water there's nothing for people to understand or compare there and there's no reasonable basis for the core to make it preventing the record like that and making a choice to use one set of numbers or environmental harm with another set of numbers for economic harm is an irrational the one the co and i think one way that would have been fairly straightforward to do and provide the vote and transparency and the relative trend which is all the course says our model can and can do anyway is you know here the environmental harm  e the economic harm we're showing you these to give a fair comparison but we're concerned there understate it so that would have been one way to do it but but i don't think that the only way and stick to put this in cont the the comparison of economic environment and environmental impacts here and just fundamentally on on different footing and i think it's not enough to say that the little that you did or at least that's a reasonable solution well you know i think that it that is what the record says but again we only have this three years to look at so it's unclear you know what that shows and in other and other aspects they did look at longer positions so there's no reason that could have happened there and i think the other thing is that it's not a question of whether you need be three nourishment on the east end or not the harm is n and i think that's one of the reasons that the proposal to fix it with additional medication would be unsuccessful the harm is done there and any harm beyond that that we don't know about because the measure is going to accumulate in addition to that and only make the harm work and we have not you know that these harms are modest a question of when they are measured are they are they fairly capturing the harm in allowing it to be compared to the impact there and