## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 2 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

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 th e 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. San sonetti, Assistant Attorney General, Washington, D.C.; Matthew H. Mead, United States Attorney, Cheyenne,-2-

Wyoming; Carol A. Statkus, Assistant United States Attorney, Cheyenne, Wyoming; Jon M. Lipshultz and Ellen J. Durkee, Atto rneys, United States Department of Justice, Environment and Natural Reso urces 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, Wyo ming, for Defendant - Appellee Canyon Club, Inc.

Before EBEL , ANDERSON , andMURPHY , Circuit Judges.

ANDERSON , Circuit Judge.

In this case we consider Clean Water Act (“CWA”), 3 3 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 Edgco mb, Canyon Club’s president and primary shareholder. The land lies a long the Snake River in Teton County, Wyoming, in the vicinity of highly producti ve bald eagle nesting territory.1 The Snake River Fund is listed as a plaintiff-intervenor but has not filed a

brief in this proceeding. -3- Two environmental groups, the Greater Yellowstone C oalition and the Jackson Hole Conservation Alliance (collectively re ferred to as the appellants), brought this suit against Corps officials (collecti vely 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 injun ction on construction activities. 1 The district court denied the appellants’ motion for a preliminary injunction. In an interlocutory appeal from that d ecision, this court reversed and remanded the case for further consideration. Great er Yellowstone Coalition v. Flowers , 321 F.3d 1250 (10th Cir. 2003) (“Greater Yellowst one 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 environm ental impact statement.-4- BACKGROUND The 359-acre Canyon Club development property lies seventeen miles south of Jackson, Wyoming, in the Snake River Canyon, acr oss the river from U.S. Highway 26/89. The property is part of a “1,222-ac re conglomerate of private land” that includes a 544-acre segment of the RiverBend Ranch on the Canyon Club property’s north side, the 195-acre Snake Rive r Canyon Ranch to the north of that, and a 125-acre segment of the River Bend R anch to the south, on the other side of a strip of National Forest land. App ellants’ App. Vol. 3 at 419. Together, these properties “represent the largest p rivate land-development opportunity in the upper portion of the Snake RiverCanyon.” 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 orin the immediate vicinity of the Canyon Club property. Two of these – the Dog Creekand the Cabin Creek territories – have been highly productive, togetheryielding at least fifty-six fledglings since the bald eagle’s 1978 listing as “ endangered” under the2 After significant recovery, the bald eagle’s status was upgraded to

“threatened” in 1995, 60 Fed. Reg. 36000, and was p roposed for delisting in 1999, 64 Fed. Reg. 36454. As of this date, the pro posal has been neither adopted nor withdrawn. According to the U.S. Fish and Wild life Service (“FWS”), the bald eagle is listed as a Native Species Status 2 b y the Wyoming Game and Fish Department “due to on-going significant habitat los s within the State.” Appellants’ App. Vol. 1 at 35. -5- Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-4 4. 2 The pair occupying the third territory – Martin Creek – have produced fled glings 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 origin ally part of the River Bend Ranch, which Mr. and Mrs. Edgcomb purchased in1994 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-fou r homes and placed golf course holes three and four on a gravel peninsula e xtending into the Snake River. Construction would require dredge and fill activiti es in waters and wetlands under3 The Supreme Court established the extent of the Corps’ jurisdiction over

wetlands in Solid Waste Agency v. U.S. Army Corps o f Eng’rs , 531 U.S. 159 (2001). -6- the Corps’ jurisdiction, thus triggering the need f or a § 404 permit. 3 Canyon Club therefore submitted a § 404 permit application to t he Corps in March 2001, requesting authorization to fill 1.5 acres and dred ge 2.75 acres of jurisdictional wetlands, and to place up to twenty-three bendway w eirs 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, 20 01. The 286-acre proposal met with opposition from the public and various state and federal agencies, including FWS, primaril y due to the development’s potential effects on bald eagles and the possible i mpact 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 Corp s’ suggestion, Canyon Club considered relocating holes three and four elsewher e within the 286 acres. However, it was determined that this change would a ctually increase the project’s adverse environmental impact and would still involv e golf course feature construction within LDR-mandated setbacks.4 The proposal indicated that golf course employees w ould 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 a lso owned by the Edgcombs or Canyon Club.

5 Of the 1.45 acres to be filled, .87 acre is for hom esite 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 featur e construction. -7- FWS then suggested that Canyon Club consider extend ing the project north onto property that was then an alfalfa field and st ill part of the River Bend Ranch. In response, Canyon Club purchased the additional p roperty from the Edgcombs, expanding the project area to 359 acres, and redesi gned its proposal. At the Corps’ suggestion, Canyon Club withdrew its origina l § 404 application and submitted a new application, based on the new desig n, 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 projec t 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 c onstruction, and 2.12 acres of an existing pond would be dredged during its reconstru ction.6 These easements would be in addition to an 85-acre conservation easement

on the Snake River Canyon Ranch and a 48-acre conse rvation easement on the River Bend Ranch that are already in place and prot ect elk migration corridors. -8- The proposal also describes measures designed to mi tigate the project’s environmental impact. The reconstructed pond and t hree new ponds, incorporated in the golf course design as water hazards, would p rovide habitat for waterfowl and cutthroat trout. Snake River water would be di verted into the Martin Creek stream channel in order to provide trout spawning h abitat. Utility lines, including a 3.8-mile-long power line currently traversing the Snake River Canyon Ranch, River Bend Ranch, and Canyon Club properties, wouldbe buried underground, and temporary wetland fill during this process woul d be removed. New conservation easements would be established on boththe River Bend Ranch (a 244-acre easement) and the Canyon Club property (an88-acre easement along the Snake River setback). 6 The Canyon Club residential development’s declaration would include restrictive covenants controlling own er use of the property with regard, for example, to pets, snowmobiles, tree rem oval, and wildlife feeding. In the course of its decisionmaking process, the Co rps 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.7 The notice also indicated that “[a]ny person may re quest, in writing and

within the [thirty-day] comment period,” a public h earing “for the purpose of gathering additional information.” Id. at 258. No request for a hearing was made, and none was held. -9- 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 wel l 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,” potenti ally causing the three eagle pairs to abandon their nests. Appellants’ App. Vol. 4 at682. The Corps then issued a thirty-day scoping notice i n connection with the 359-acre proposal on November 21, 2001, soliciting public comments on the project impacts. Attached to the notice were a num ber 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 wo uld 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 consultatio n with FWS on November 16, 2001. After reviewing the Pioneer BA and gathering further information through direct correspondence with Pion eer and Corps staff and from-10-

other sources, FWS issued a biological opinion (“Bi Op”) 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 eagl e” as a species, even if the Dog Creek, Cabin Creek, and Martin Creek eagle pairs we re lost. Id. Vol. 4 at 851. Also, no bald eagle critical habitat would be affec ted since none had been designated. Attached to the BiOp was FWS’s incidental take stat ement, indicating that FWS “anticipates the loss of 3 bald eagle nesting t erritories . . . 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 th e “loss of 6 adult bald eagles.” Id. In addition, up to twelve juvenile bald eagles wo uld 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. Th e incidental take statement allowed the Corps to issue a § 404 permit authorizi ng 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 requir ements that construction activities be completed within two years, that cons truction be regulated so that no activity would take place within 400 meters of a ne st containing eagle chicks less than three weeks old, and that the effects of the p roject on the eagle nests be8 Helicopters have picked up skiers from Snake River Canyon Ranch,

transported them to ski slopes, and returned them t o the Ranch since approximately 1977. Three to eight flights a day g enerally 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 C anyon Ranch. -11- closely monitored by qualified biologists, both dur ing 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 hadrecommended that the Corps deny the § 404 permit because of the expected“substantial and unacceptable impacts” on wildlife, including bald eagles, and be cause “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 toget her 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 direct or, 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 witha 1992 Memorandum of Agreement (“MOA”) between the Departments of Interi or and the Army regarding-12-

CWA § 404. Canyon Club’s App. at 87. On June 4, 2 002, 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, 2 002, the FWS regional director responded that he had “decided not to request highe r level review.” Id. at 89. Thereafter, on June 14, 2002, the Corps issued its decision granting the § 404 permit. The decision document was also desig nated as constituting the Corps’ environmental assessment, statement of findi ngs, public interest review, and NEPA compliance determination, and incorporatedthe 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 2 24. The Pioneer § 404(b)(1) analysis had noted that its determination of what w as “practicable” took into account limitations imposed by golf course design r equirements, Teton County LDRs, and the project’s stated purpose, which inclu ded the preservation of River Bend Ranch. It then described five alternatives, i ncluding a no-action alternative, a nine-hole golf course, the original 286-acre prop osal, 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 acti on because it would likely lead-13-

to the sale of the entire River Bend Ranch to Canyo n Club and the construction of a 250-house residential development on the property . The analysis determined that the nine-hole golf course alternative was impractic able because the resulting reduced value of the associated residences and the lower demand for such a golf course would not cover golf course operation expens es or provide the required financial support to River Bend Ranch. The 286-acr e alternatives were also deemed impracticable because they did not comply wi th Teton County LDRs. The analysis concluded that the proposed action “is the least damaging practicable alternative that satisfies the project purpose.” I d. at 322. The Corps had also conducted an independent analysi s of whether other real estate sites in Teton County were practicable alter native 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 l ocations would have a similar impact on wetlands while entailing a much higher co st than the proposed action. The Corps concluded that the proposed action “is th e 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 discus sion because the former was not economically viable and the latter would have g reater environmental impacts9 The assessment noted that the anticipated developme nt 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. -14- than the original 286-acre proposal. The EA then d escribed the expected impacts of each of the three remaining alternatives (the pr eferred 359-acre proposal, no action, and the original 286-acre proposal) on soil s 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 predict ed 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 th e requirement for an incidental take permit from FWS. In fact, however, the ESA wo uld likely “need to be revisited to determine whether . . . provisions forthe 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 expec ted to have a lesser impact on the Dog Creek nest becau se golf course features would be farther away, but the two golf course holes on t he gravel peninsula would negatively impact eagle foraging habitat. The EA c oncluded that, “[g]iven the inherent right of land owners to develop their prop erties consistent with county-15-

development regulations,” the “transition of land u se from agricultural/ranching activities to residential and resort development” w as “unavoidable.” Id. at 474. The Corps’ decision document summarized the PioneerEA and BA’s impact analyses, concluding that all practicable alternati ves would have similar impacts on wetlands and fish and wildlife. The Corps suppl emented 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. Th is, in turn, could lead the Forest Service to reduce the level of recreational river u se 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 ins ufficient to warrant denial of the permit. Id. Vol. 2 at 231. In response to public comments concerning the impac t of the proposed bendway weirs on the Snake River, the Corps noted that if the weirs were implemented, the Corps would monitor their effect o n the river and could require their modification or removal if the effect was adv erse. The Corps thus concluded that the bendway weirs were “not likely to adversel y affect the proper function of the Snake River and associated floodplain.” Id. at 233.-16-

In discussing the project’s proposed mitigation act ivities, the Corps concluded that the establishment of the planned con servation easements would fully mitigate any adverse effects of the project o n riparian areas adjacent to the Snake River. In addition, the Corps noted that wet land areas excavated during construction of the four ponds involved in the proj ect 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 h ad already been severely degraded by livestock grazing. The Corps did, howe ver, require compensatory wetland creation at a ratio of at least 1.5:1 for v arious wetland types. The Corps then issued its determination that the pr oject would not have a significant impact on the quality of the human envi ronment and that an EIS was therefore not required. In granting the § 404 perm it, the Corps established certain mandatory conditions and, in particular, noted thatthe 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 distric t court challenging the § 404 permit decision as a final agency action and seeking a temporary restraining order (“TRO”) and preliminary injunction to halt co nstruction on the project. Although the district court initially granted the T RO, it lifted the order on August 16, 2002, following a hearing. On August 19 , 2002, it denied the-17-

preliminary injunction, holding that the appellants had failed to show irreparable harm to bald eagles if the injunction were not issu ed. 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 injunc tion 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, reject ing 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 appellant s 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 distr ict court’s refusal to admit the Speidel affidavit. We denied the appellants’ m otion for an injunction pending appeal on May 22, 2003. We now consider the merits of the appellants’ claims.10 This restriction applies where the dredge or fill i s “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...) -18- DISCUSSION We review the Corps’ compliance with NEPA and the C WA pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-06, w hich “empowers a reviewing court to hold unlawful and set aside [final] agencyaction, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Utahns for Better Tra nsp. v. U.S. Dep’t of Transp. , 305 F.3d 1152, 1164 (10th Cir. 2002), modified on r eh’g , 319 F.3d 1207 (10th Cir. 2003). In considering whether to overturn the Corp s’ decision to issue the § 404 permit, we apply the same deferential standard to t he 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 W ater Act CWA § 404, 33 U.S.C. § 1344, prohibits dredging orfilling waters of the United States, including wetlands, without a permitfrom the Corps authorizing the dredge or fill activity. 33 U.S.C. § 1344(a), (d). 10 The Corps may not issue a10 (...continued)

excluded from the permit requirement. Id. § 1344(f)(1).

11 Section 404(b)(1) directs that most permits be issu ed in compliance with guidelines (“CWA guidelines”) developed by the Envi ronmental 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. Th e 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). -19- § 404(b)(1) 11 permit “if there is a practicable alternative to t he proposed discharge which would have less adverse impact on the aquatic ecosystem,” unless the alternative has “other significant adverse environm ental consequences.” 40 C.F.R. § 230.10(a). A “practicable” alternative is one th at is “available and capable of being done after taking into consideration cost, ex isting technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). The Corps’ burden in finding the least damaging pra cticable alternative under the CWA guidelines is heaviest for non-water dependent projects planned for a “special aquatic site,” such as a wetlands ar ea. 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 i mpact 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],-20-

. . . provide[s] detailed, clear and convincing inf ormation proving” that an alternative with less adverse impact is “impractica ble.” 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 f or 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 advers e environmental impact.”). Citing Utahns for Better Transportation , the appellants argue that the Corps violated 40 C.F.R. § 230.10 by “fail[ing] to requir e ‘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’ B r. at 27. Specifically, the appellants contend that the Corps failed to conside r 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 a nd filling jurisdictional wetlands, constructing weirs in the Snake River, an d related impacts to bald eagles.” Id. at 28. The appellants also suggest the Corps shou ld have considered12 In light of the applicant’s burden under the CWA, w e accept for purposes

of this discussion the appellants’ contention that these alternatives are sufficiently obvious that they need not have been suggested to C anyon Club or the Corps prior to issuance of the § 404 permit to be considered he re. We address the admissibility of the Speidel affidavit below in ourdiscussion of the Corps’ compliance with NEPA. -21- whether wetland and bald eagle impacts could have b een reduced by decreasing the number of home sites in the planned housing dev elopment. 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 li ght of the proposal’s expected impact. We uphold the Corps’ § 404(b)(1) alternati ves analysis on the latter basis. We first recognize that the Corps, in determining w hether to issue a § 404 permit, “‘has a duty to take into account the objec tives 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 “‘legit imate,’” 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 Co rps should not permit developers to “artificially constrain the Corps’ al ternatives analysis by defining the projects’ purpose in an overly narrow manner”). Ho wever, the burden of proving-22-

that a given alternative does not meet the applican t’s objective remains on the applicant when 40 C.F.R. § 230.10(a)(3) applies, an d 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 informat ion provided by the applicant but must not do so “uncritically”); La. Wildlife Fe d’n , 761 F.2d at 1048 (noting the applicant’s burden); Korteweg v. Corps of Eng’r s of the U.S. Army , 650 F. Supp. 603, 604 (D. Conn. 1986) (same); Hough v. Mar sh , 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 holdapplicants to their burden); Shoreline Assocs. v. Marsh , 555 F. Supp. 169, 179 (D. Md. 1983) (upholding th e Corps’ denial of a permit where the applicant “fail ed to show . . . why it is necessary for the [development] to be located on th e 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 p urposes in developing the golf course and housing complex was to “[s]upplement ranching operations on the adjacent River Bend Ranch with income from the Cany on 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 develo pment by the Canyon Club Development is limited by ownership andavailability. Any additional commitment of land to the developmen t would have to be made available by the River Bend Ranch. Any act ion that reduces13 In the TRO hearing before the district court, Mr. E dgcomb did claim that

any further reduction in the size of the Ranch woul d 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- the size of the River Bend Ranch to the status of anon-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 facto rs for meeting the purpose and need of the project was to optimize the amount of land required for the project without compromising the v iability 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 t hat were considered led Canyon Club or the Corps to examine whether any commitmentof 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-24-

should reflect the significance and complexity of t he discharge activity.” 40 C.F.R. § 230.6(b). They further state that “[a]lth ough all requirements in § 230.10 must be met, the compliance evaluation procedures w ill vary to reflect the seriousness of the potential for adverse impacts onthe aquatic ecosystems posed by specific dredged or fill material discharge acti vities.” Id. § 230.10. Here, the Corps’ level of effort and documentation was in accord with this standard. As required by the CWA guidelines, the P ioneer § 404(b)(1) analysis includes detailed factual determinations on “the nature and degree of effect that the proposed discharge will have . . . on the struc ture and function of the aquatic ecosystem and organisms,” in particular on the “phy sical, 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 vegetatio n diversity of remaining jurisdictional wetlands, comprising 32.65 acres, wo uld improve due to the removal of cattle grazing. Additional wetlands would be ad ded as part of the project’s mitigation efforts; a Snake River tributary, Martin Creek, would be restored, providing new trout spawning habitat; and the bendw ay weirs, if installed, were14 For this conclusion on the impact of bendway weirs, Pioneer and the

Corps relied on a study prepared by Ayres Associate s which found significant erosion and thus the possible need for bank stabili zation using bendway weirs on two locations on the Canyon Club property. The stu dy concluded that the weirs would “creat[e] and enhance[] aquatic habitat.” Ap pellants’ App. Vol. 2 at 206. As the appellants indicate, the beneficial impact o f the weirs was questioned by the EPA and by a U.S. Forest Service geomorphologis t in their responses to the 359-acre proposal. They noted that the weirs may c ause channel migration or erosion downstream, on the opposite bank, or on isl ands currently located in this portion of the Snake River. The Corps acknowledgedthese comments in its decision document but noted that it would “adopt mo nitoring requirements to ensure that weirs are functioning as designed and m ay require modification or removal of weirs if unacceptable effects on the Sna ke River are documented.” Id. at 233. The Corps concluded that “the proposed ben dway weir construction is not likely to adversely affect the proper function of t he 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 agenc ies, as long as its decisions are not arbitrary and capricious. Lee v. U.S. Air Forc e , 354 F.3d 1229, 1242 (10th Cir. 2004). -25- predicted to increase riffle and pool complexes on the Snake River, considered a beneficial effect. 14 The Corps also concluded that “all of the alternati ves [considered] would have similar effects on . . . bald eagles” and thatthese impacts were not “unacceptable.” Appellants’ App. Vol. 2 at 227. T his 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 i mposed by FWS on the Canyon Club development. Id. As described above, these restrictions would proh ibit construction within 400 meters of a nest containing eagle chicks for the first three weeks after hatching and would otherwise require co nstruction work near the15 We note that our understanding of the Corps’ analys is differs from that of

the district court. We disagree with the district court’s assertion that environmental impacts of “upland aspects of the ove rall project” are never relevant to the Corps’ analysis under the CWA guide lines. 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 impac ts. In fact, this language merely explains the difference between the analyses required under NEPA and under the CWA guidelines. The Corps states: “Unde r the guidelines, the analysis is conducted with an emphasis on aquatic resources which is more integral [than effects on various other public interest factors] t o the Corps’ authority regarding permit decisions.” Appellants’ App. Vol. 2 at 233. We understand the phrase “aquatic resources” to encompass the physical, chem ical, 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. S econd, the district court’s upland/discharge distinction was evidently drawn fr om 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 notappropriately apply to the CWA alternatives analysis, which, again, focuses onimpacts to the “aquatic (continued...) -26- Snake River during nesting season to take place onl y between 9 am and 6 pm in order to reduce impacts on eagle foraging activitie s. Any bendway weir construction would have to take place outside the n esting season. Apart from these restrictions, which the Corps legi timately took into account, we understand the Corps’ conclusion to ref lect its recognition that the primary cause of the predicted adverse impact on ea gles – increased human activity resulting from development on the property– was in a large sense unavoidable. 15 The record indicates that the bald eagles and the ir progeny cannot15 (...continued)

ecosystem.” 40 C.F.R. § 230.10(a). The CWA guidel ines define “aquatic ecosystem” to mean “waters of the United States, in cluding wetlands, that serve as habitat for interrelated and interacting communi ties 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 aquati c 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 i mpacting 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 a s a whole on bald eagle nesting and foraging habitat. -27- 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 sensi tive to human disturbance,” the recommended buffer around nests is one mile. Appel lants’ App. Vol. 4 at 837. The BiOp indicates that all three nesting territori es could be negatively impacted by the proposed action, due to “increased recreatio nal activity, increased overall human intrusion, and changes in habitat quality,” e ven though no golf course features or housing lots were planned within 400 me ters of the active Cabin Creek nest, and only a portion of one hole would lie with in 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 th at could have indirect effects on16 The appellees cite this statement as evidence that bald eagles are not part

of the “aquatic ecosystem” in question, pointing al so 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 signific antly 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 Sn ake River aquatic ecosystem but distinguish this from the ecosystem of the adjacentwetlands. Since the Corps never made such a distinction explicit in the admin istrative record and instead considered impacts of the project as a whole on bal d 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 wh ich an administrative order must be judged are those upon which the record disc loses that its action was based.’” (quoting SEC v. Chenery Corp. , 318 U.S. 80, 87 (1943))). -28- nesting bald eagles due to disturbance from constru ction, operation, use of the Canyon Club golf course, and housing development an d occupation.” Id. Vol. 2 at 333. These effects would occur under “any of the a ction alternatives” and would not be “the direct result of filling within wetland s.” 16 Id. Even the “no-action” alternative was predicted to h ave 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 int o 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 CountyLDRs) within 400 meters of bald eagle nests, the human intrusion would at leas t equal that expected from the Canyon Club 359-acre proposal. Moreover, the 332 a cres of conservation-29-

easements that are associated with the 359-acre pro posal and are intended primarily “to provide secure habitat for bald eagle s,” id. Vol. 4 at 834, would not be established, and other mitigation measures, suchas the use restrictions drafted for the Canyon Club Declaration, might also be aban doned. Thus, even assuming that the appellants’ suggested alternatives may incrementally reduce impacts to bald eagles by remo ving specific features from the 400-meter radius around their nests, the record sug gests 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 a nd documentation in its CWA alternatives analysis and its conclusion that the 3 59-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 a gency action, NEPA imposes procedural requirements aimed at integratin g “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 a gency undertakes a “major Federal action[] significantly affecting the quality of the human environment,” it must prepare an environmental impact statement (“EI S”) that details, among other things, the environmental impacts of the proposed a ction, any adverse-30-

environmental effects that would occur as a result, and alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). When it is unclea r whether a proposed action requires an EIS, the agency may first prepare a les s 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 signific antly 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 th at an EIS was required because “the Canyon Club project will wipe out regionally s ignificant bald eagle nests, alter the natural flow of the Snake River, and plac e 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 pre pare 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 Com m. 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 th e necessity of an EIS is the agency’s, not a reviewing court’s.”). Our review o f this decision requires us to-31-

determine “whether the agency acted arbitrarily and capriciously in concluding that the proposed action will not have a significan t 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 whet her the agency considered the relevant factors. Id. Accordingly, if the appellants “can demonstrate substantively” that the agency’s conclusion “repres ents 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 significantlyaffect the environment, agencies must consider both the context in which th e 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 th is determination, as listed in NEPA’s implementing regulations, are the “[u]nique characteristics of the geographic area [in which the action would take pla ce] such as [its] proximity to . . . wetlands, wild and scenic rivers, or ecologic ally 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 uncerta in”; and “[t]he degree to which the action may adversely affect an endangered or th reatened species or its [critical] habitat.” 40 C.F.R. § 1508.27(b)(3)-(5), (9).17Although the appellants mention that the portion of the Snake River adjacent to the Canyon Club property is eligible fo r wild and scenic river designation, they do not explain how the Canyon Clu b development would affect this eligibility. We therefore do not address this argument beyond noting that the Corps’ decision document indicates its awareness th at the river within Snake River Canyon is considered eligible. See Appellants’ App. Vol. 2 at 228. -32- The appellants claim that “[e]ach of these factors required preparation of an EIS in this case.” Appellants’ Br. at 43. They sp ecifically focus their arguments on the unique value of this stretch of the Snake Ri ver 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 ben dway weirs. 17 First, in regard to the bendway weirs, the record d oes 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 res earch of “the best possible means to successfully protect property values and r iparian habitat from further erosion without impacting the river channel.” Appe llants’ 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 m easures are considered to have greater river impacts than bendway weirs. The desi gn and function of the weirs at-33-

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 d ecision document and approved construction of the weirs with the condition that C anyon Club receive advance approval of the final plans before construction beg ins. 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 t o 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 Riverare documented.” Appellants’ App. Vol. 2 at 233. We believe the cir cumstances 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 requ irements in case its conclusion-34-

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 desig nated 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 eagl e” 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 memb ers of a threatened species does not automatically lead to the requirement to p repare a full EIS. See Ramsey
v. Kantor , 96 F.3d 434, 437 (9th Cir. 1996) (holding that is suance of an incidental take statement was a “major federal action” under N EPA 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 prep are an EIS in connection with a landfill was not arbitrary where FWS had issued an incidental take statement-35-

anticipating that the project would kill up to 130 Eastern Indigo Snakes, a threatened species). As discussed above, the Corps concluded that the co nditions imposed by FWS on the Canyon Club development “greatly reduced ” the chance that any eagles would in fact be taken, despite the continui ng potential for disturbance due to increased human activity in the area. At the ti me 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 bal d 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, thes e documents could not predict with certainty how the resident bald eagles would r eact to the Canyon Club development. It appears that this uncertainty stem med not from a lack of thoroughness in investigating potential impacts butprimarily from the fact that “[r]esponses of eagles to human disturbances vary d epending on the eagle individual/pair.” Id. at 837. Further, although “some eagles in the Sna ke Unit population have shown some tolerance of human distu rbance in the past, . . . eagle behavior varies greatly among individuals and by ci rcumstance. Therefore, the past behavior of eagle pairs cannot be used to pred ict 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-36-

unlikely to be productive. Cf. Nat’l Parks & Conservation Ass’n , 241 F.3d at 737 (requiring an EIS “when there is a reasonable possi bility 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 a lready before the Corps, including two FWS biological opinions, d emonstrated 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 proj ect as proposed, and as modified by the conditions imposed by FWS, does inc orporate a number of mitigation measures designed to reduce the potentia l impact on bald eagles. These measures include close daily monitoring of active e agle nests during the construction process, with the requirement that con struction activities be modified immediately if eagle disturbance is observed. More over, monitoring will continue for five years after construction is completed in o rder to evaluate the actual effect on bald eagles of the development as a whole. In light of the evident difficulty in predicting ea gle reactions before the Canyon Club development begins, the Corps could jus tifiably 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-37-

Ass’n , 241 F.3d at 735 (contrasting its circumstances wi th Wetlands Action Network , where, as here, “the imposition of special condit ions, enforced through a permit, and reviewed by various other agencies ensu red that the measures would be enforced in a manner that properly reduced negat ive environmental impact”). Accordingly, we conclude that the appellants have f ailed to demonstrate that the Corps made a clear error in judgment or did not con sider the factors relevant to the project’s impacts on bald eagles. We thus hold that the Corps’ decision not to prepar e an EIS was not arbitrary or capricious.

3. Consideration of Alternatives Under NEPA Like the CWA, NEPA requires federal agencies to con sider alternatives to a proposed action. 42 U.S.C. § 4332(2)(E). An agenc y’s obligation to consider reasonable alternatives is “operative even if the a gency 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 o f 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 ,-38-

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 ext ensively 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 Pr eserve 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 a gency gathered “information sufficient to permit a reasoned choice of alternati ves 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 favo r Canyon Club’s preferred 359-acre proposal. Appellants’ Br. at 22. Specifi cally, the appellants claim that all the alternatives considered, except for the 359 -acre proposal, were “nonstarter[s]” because they either violated county LDR s 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-39-

left only the proposed action and a no-build altern ative 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-bloc k distance and the failure of the agency involved to consider any alternative locatio n for this new road, or any modification to the project design that had potenti al 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 tw o viable alternative locations. Id. at 1119. Here, in contrast, the record indicates that, by th e time the Corps’ EA was prepared, Canyon Club and the Corps had seriously c onsidered various alternatives. As described above, the 286-acre pro posal was originally the preferred alternative. As a result of “facilitatio n 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 Sta ff 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 agr eed to redesign the development using additional Ranch land. The 359-a cre proposal emerged from this process.-40-

The Pioneer EA discusses the alternatives that were considered and rejected during these negotiations. These included the modi fied 286-acre alternative and a nine-hole golf course alternative rejected because there was no market for ninehole golf courses. The Pioneer EA then assesses impacts associated with a noaction alternative, the 286-acre proposal, and the 359-acre proposal. As in the § 404(b)(1) analysis described above, its discussio n of the “no-action” alternative assumes that failure to obtain a permit will resultin 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 documentbecause . . . it remains a viable alternative, from the perspective of [Canyon Club]. ” Id. at 391. The Corps’ EA/decision document incorporated this analysis andalso discussed, but rejected as infeasible, the possibility of locating the deve lopment 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 w as the only alternative considered that would satisfy the newly-formulated Teton County LDRs and the project’s purpose. However, this does not appear t o be the result of “defining the objectives of [the project] in terms so unreasonabl y 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-41-

preserve River Bend Ranch by obtaining income from an eighteen-hole golf course and upscale residential development while also mini mizing the impacts of development on scenery and the environment. The Co rps reviewed this description and largely adopted it after determinin g that “there is a market need for the project and that the project is economically vi able.” Appellants’ App. Vol. 2 at 220. We do not believe Canyon Club’s descriptio n of purpose is so narrow or unbalanced that the Corps, by accepting it, abdicat ed 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 e xtra-record evidence in the form of the Speidel affidavit, which claimed th at 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 ci rcumstances 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 sca le 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 th at the environmental impact will be small, a view which we are required to acco rd deference,” and which here18 We also note that, as indicated above, after notice of the original 286-acre

proposal was issued, a series of meetings took plac e between Canyon Club and others, including environmental groups, regarding v arious possible alternatives and how to reduce bald eagle impacts. The record d oes not indicate whether the appellants were involved in these discussions. How ever, in its response to the notice of the 359-acre proposal, one of the appella nts, the Jackson Hole Conservation Alliance, indicated its awareness of the original proposal, stating that Canyon Club had “clearly made a concerted effo rt to . . . address several of our previously unresolved wildlife . . . concerns.” Appellants’ App. Vol. 2 at 307. The response also incorporated comments by Ja ckson Hole Trout Unlimited recognizing the potential for the incidental take o f two eagle nests and thus urging “rigorous mitigation and responsible monitoring.” Id. at 303. -42- we have already upheld, “a less extensive search [f or 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 t hey, and the public in general, did not have access to a description of th e alternatives that were under consideration before the public comment period ende d on December 20, 2001. It is true that the Corps’ public notice did not descr ibe any alternatives, and the record does not indicate that the Pioneer EA, otherPioneer documents, or the FWS BiOp were made available to the public before the C orps issued its decision. The notice did, however, include maps detailing the lay out of the 359-acre proposal. It also stated that “the project is likely to adversel y affect bald eagles.” 18 Appellants’ App. Vol. 2 at 257. Further, NEPA’s pu blic involvement requirements-43-

are not as well defined when an agency prepares onl y an EA and not an EIS. Compare 40 C.F.R. § 1503.1, .4 (requiring agencies prepari ng an EIS to make an initial draft available for public comment and to c onsider “[d]evelop[ing] and evaluat[ing] alternatives not previously given seri ous consideration” in response to comments), withid. § 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 t o their final decision only in specific circumstances not applicable here); see al so Pogliani v. U.S. Army Corps of Eng’rs , 306 F.3d 1235, 1238-39 (2d Cir. 2002) (holding pl aintiffs 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 issuanc e”). We therefore reject this argument as grounds for holding that the Corps acte d arbitrarily. We thus uphold the Corps’ consideration of alternat ives under NEPA.

CONCLUSION Having thoroughly reviewed the administrative recor d, we AFFIRM the decision of the district court and uphold the Corps ’ issuance of a § 404 permit in this case.