League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren (163 F. Supp. 2d 1222, 2001)

United States District Court for the District of Oregon 2001-05-07

Conservation

Citations

Full opinion text

OPINION

REDDEN, District Judge.

INTRODUCTION

Plaintiffs challenge defendants’ Douglas Fir Tussock Moth (DFTM) Final Environmental Impact Statement (EIS) and May 26, 2000 Record of Decision (ROD) regarding the aerial spraying of approximately 628,000 acres in national forests in Oregon and Washington to control the DFTM. Plaintiffs argue that the spray project violates the National Environmental Policy Act (NEPA) and the Federal Water Pollution Control Act (commonly known as the Clean Water Act and hereafter referred to as the CWA).

PLAINTIFFS’ COMPLAINT

In their summary judgment motion, plaintiffs generally summarize the claims in their complaint as follows:

(1) The EIS fails to cite to any baseline studies, and fails to adequately document impacts of the proposed spraying of B.t.k. (Bacillus thuringensis var. kurstaki) and TM-BioControl on butterflies, wildlife, humans, and other aspects of the environment;

(2) Defendants have improperly characterized the situation as an emergency, and have by that characterization exempted themselves from the normal administrative stay provisions;

(3) The DFTM project leaves too many decisions up to the individual forest supervisors, even though the EIS acknowledges that its assumption of low impact to the environment relies heavily on only very limited spraying occurring under very stringent conditions;

(4) The EIS fails to (a) acknowledge the benefits of allowing the naturally-occurring DFTM to run its cycle; (b) disclose and analyze the effects of DFTM suppression on natural thinning of overstock stands and on birds and other wildlife; and (c) disclose the possibility that the suppression effort could lead to elimination or severe reduction of the DFTM virus, which is the DFTM’s most effective natural regulator; and

(5) Defendants have violated the CWA by discharging pollutants into the waters of the United States without a permit.

Plaintiffs also request that the court enjoin defendants from (a) taking any further action on the DFTM project unless or until they prepare an adequate supplemental environmental impact statement spraying that corrects deficiencies in the EIS and includes information on recent survey data; (b) “applying pollutants in National Forest waterways in such a manner as to result in a further violation of the CWA” (PLCompL, p. 12); and (c) discharging pollutants without the appropriate permit issued under the CWA.

BACKGROUND

The following background comes from the (1) Draft Environmental Impact Statement (DEIS) published in January 2000 (AR 3395, hereafter DEIS/AR 3395); (2) the EIS published in April 2000 (AR 5099, hereafter EIS/AR 5099); (3) the ROD signed in May 2000 (AR 5533, hereafter ROD/AR 5533); and (4) the second Record of Decision signed in November 2000 (AR 5719, hereafter ROD2/AR 5719).

A. DFTM and Outbreaks.

The DFTM is a tree defoliator which, in its larval stage, eats the needles of live Douglas fir and true fir trees. The DFTM is endemic in the forest and cyclic, with populations increasing to epidemic levels roughly every 7 to 13 years. Outbreaks may be localized or widespread, last for 2 to 4 years, and end with a sudden crash. EIS/AR 5099 at 1-3. Since the female moth is incapable of flight, DFTM outbreaks generally arise in place, with little or no spread to uninfested or previously treated areas. Id.

The window of opportunity for effective spraying is the second year of a DFTM outbreak. EIS/AR 5099 at 1-3. After two years of high DFTM populations, it is too late to spray because the populations will soon experience a natural crash and defoliation has already occurred. Id. For treatment to be effective, it must occur from mid-June to mid-July when larvae are actively feeding and before heavy defoliation becomes apparent. Id.

In the early 1970s, approximately 700,-000 acres were defoliated in Oregon, Washington, and Idaho due to an outbreak of DFTM. The outbreak caused total mortality in approximately 17,270 acres in patches, 75 percent mortality in approximately 62,070 acres, and 10 percent mortality approximately 275,660 acres. EIS/AR 5099 at 1-4.

After the outbreak in the 1970s, the United States Forest Service (USFS) developed a DFTM early warning system, which is a survey technique used to monitor population trends of DFTM in forests throughout eastern Washington and Oregon. The early warning system allows the USFS to evaluate potential impacts of a DFTM outbreak on specific areas of the forests where foliage protection might be critical. EIS/AR 5099 at 1-3. Under the early warning system, DFTM traps are placed in forests throughout eastern Washington and Oregon. Generally speaking, the number of captured male moths helps gauge the overall moth populations. Ground sampling is initiated when average capture exceeds 40 moths per trap. Id.

Based on early warning data, the USFS found that populations of DFTM were increasing, resulting in the USFS anticipating a widespread outbreak of DFTM on nine national forests in Washington and Oregon, primarily in years 2000-2002 and possibly through 2004. EIS/AR at 1-3. It was the opinion of the USFS that this outbreak could cause defoliation similar to the 1970s outbreak. Id.

B. B.t.k. and TM-BioControl.

The EIS evaluates two methods of control of DFTM: spraying with B.t.k. and spraying with TM-BioControl. B.t.k. is a bacterium naturally occurring in the soil. It kills only Lepidoptera (moths and butterflies). EIS/AR 5099 at 1-5. B.t.k. formulas are complex. EIS/AR 5099 at IV-49.

TM-BioControl is a viral insecticide that contains only the natural DFTM virus and ground-up insect body parts (infected caterpillars), and is mixed primarily with water, molasses, a sunscreen, and a sticker. It kills only the DFTM and two other species of western tussock moths. EIS/AR 5099 at 1-5.

C. USFS Proposal.

In June 1999, the USFS initiated a proposal to manage the anticipated DFTM outbreak by publication of a Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register. EIS/AR 5099 at 1-6.

Each of the nine national forests expecting a DFTM outbreak sent a scoping letter describing the proposal to individuals, organizations, businesses, and government agencies. EIS/AR 5099 at 1-6 and App. C.

The USFS noted that it did not intend to attempt to stop or prevent the overall DFTM outbreak, or to prevent defoliation over the entire 4.2 million acres where the outbreak could potentially occur. EIS/AR 5099 at 1-4. The USFS also noted that the DFTM would act as a natural disturbance agent by reducing overstocking and creating stand openings, but that defoliation in some areas would cause unacceptable harm to fish and wildlife habitat or to areas where people live and work. EIS/AR 5099 at 1-3; ROD/AR 5533 at 1.

D. Draft Environmental Impact Statement (DEIS).

The DEIS was published in January 2000, and designated seven alternative proposed actions, four of which were eliminated from detailed consideration. DEIS/AR 3395. The following three alternatives were considered in detail in the DEIS:

Alternative 1 was to spray either B.t.k. and/or TM-BioControl on nine national forests, primarily through the air, on eco-logicahy sensitive lands where defoliation would affect threatened and endangered fish and wildlife habitats, recreation areas, and other high value areas. DEIS/AR 3395 at 1-3. This alternative identified approximately 560,000 acres that could be treated, although it was expected that treatment would actually occur on 224,000 to 336,000 acres. DEIS/AR 3395 at II-5.

Alternative 2 was to spray additional acres of host type forests in nine national forests that could be affected by a DFTM outbreak. This alternative would spray as much as 2.5 million acres. DEIS/AR 3395 at II — 6.

Alternative 3 was the “no action” alternative under which there would be no spraying of areas threatened by defoliation by the DFTM during the expected outbreak. DEIS/AR at 11-12.

E.Final Environmental Impact Statement (EIS).

Following public comment on the DEIS, the EIS was published in April 2000. In response to comments on the DEIS, the EIS (1) clarified the proposed action; (2) added additional details on TM-BioControl and B.t.k.; (3) analyzed in detail an additional alternative; (4) dropped other alternatives; and (5) added information on fish and wildlife species, tussock moth outbreaks, non-target Lepidoptera, and wildlife that eat moths and butterflies. Responses to public comments on the DEIS are listed in Appendix C of the EIS, and changes made to the EIS in response to public comments are summarized at I — 1, II-l, III — 2, and IV-4 of the EIS.

The four alternatives analyzed in the EIS were the No Action alternative (similar to Alternative 3 in the DEIS), Proposed Action alternative (similar to Alternative 3 in the DEIS), Expanded Protection alternative (similar to Alternative 2 in the DEIS), and TM-BioControl Only alternative. The TM-BioControl Only alternative had not been considered in the DEIS in detail; the EIS included a detailed consideration of this alternative based on public comments on the DEIS that requested such consideration. EIS/AR 5099 at II-l.

The EIS stated that B.t.k. and TM-BioControl would be sprayed primarily from helicopters, although ground application could occur in specific areas such as seed orchards. EIS/AR 5509 at 1-6. Aerial spraying would involve a single application by a helicopter flying 50 to 75 feet above the treetops with an average swath width of about 90 feet, resulting in only a momentary presence of the aircraft at any location. EIS/AR 5099 at II-7.

F. First Record of Decision (ROD).

The Regional Forester signed the first ROD in May 2000, indicating his selection of the Proposed Action alternative identified the EIS. The ROD also contained the Regional Forester’s decision that only TM-BioControl would be used until the supply was exhausted, and that enough TM-BioControl would be reserved to meet mitigation obligations identified in the EIS. ROD/AR 5533 at 3.

The Regional Forester concluded that the Proposed Action alternative would protect “specific Areas of Concern, as identified in the project objectives, from defoliation.” ROD/AR 5533 at 1. The Proposed Action alternative covered Areas of Concern that encompassed 628,000 acres. “Areas of Concern” are mapped areas in each of nine national forests where DFTM defoliation would change or jeopardize vegetative conditions in threatened and endangered species habitat, health and safety areas, campgrounds, or scenic viewsheds, or where the USFS had made a substantial investment such as a seed orchard. EIS/AR 5099 at 1-4 to 1-5. The EIS contains a list of the specific areas included in the Areas of Concern, with acreages for each forest in the project area. EIS/AR 5099 at Table II — 1. Actual spraying would be limited to where increasing DFTM populations, as determined by trapping and ground surveys, intersected with Areas of Concern. ROD/AR 5533 at 2, 3.

Although the EIS covered nine national forests, the ROD authorized spraying on portions of only six national forests in Oregon and Washington (Colville, Umatilla, Wallowa-Whitman, Malheur, Ochoco, and Fremont). ROD/AR 5533 at 1. A second record of decision covering the remaining three national forests was to be issued after completion of additional formal and informal Endangered Species Act consultations with the U.S. Fish and Wildlife Service (US/FWS). ROD/AR 5533 at 3.

In the ROD, the Regional Forester identified mitigation measures to protect against adverse effects from the project. ROD/AR 5538 at 4. Those mitigation measures included:

(1) Application of TM-BioControl only on (a) andromous fish and bull trout habitat; (b) known Mardon skipper colonies in proposed protection areas in Klamath County; (c) a 1 mile buffer along wilderness boundaries adjacent to Areas of Concern; and (d) a 1.75 mile radius around known or potential Townsend’s big-eared bat maternity sites.

(2) Avoidance of treatment in (a) a % to 1 mile buffer around active bald eagle nests; and (b) a 1 mile buffer around active Peregrine falcon nests. Id.

The ROD also provided for implementation and effectiveness monitoring as outlined in Appendix I of the EIS, including the following: (A) DFTM populations; (B) severity and location of defoliation; (C) effects on riparian vegetation (because defoliation and tree mortality affects stream shading); (D) effects on bald eagle nesting stands from defoliation (under the mitigation measures, treatment is avoided in all nest sites); (E) human health and safety impacts on forest visitors and workers; and (F) where B.t.k. is used and populations of sensitive plant species are known, the effects on seed production in sensitive plants. ROD/AR 5533 at 4; EIS/AR 5099 at App. I.

G. Emergency Exemption and 2000 Spraying.

In November 1999, the USFS Deputy Chief granted a request for an emergency exemption from the automatic stay of implementation during administrative appeals. AR 2636. Pursuant to the exemption, in June and July of 2000, 39,392 acres in the Umatilla and Wallowa-Whitman National Forests were sprayed with TM-Bio-Control.

The ROD noted that the emergency exemption from automatic stay diming administrative appeals applied to the spray project only for the year 2000. ROD/AR 5533 at 10.

H. Second Record of Decision.

A second Record of Decision authorizing the spray project was signed in November 2000, and covered those remaining three national forests for which Endangered Species Act consultations had to be completed with the US/FWS. ROD2/AR 5719.

I. Plaintiffs ’ Appeal.

Plaintiffs’ administrative appeal of the ROD was received by the USFS Chief on July 18, 2000, and the Chief upheld the ROD on August 23, 2000. AR 5647-51; AR 5652-58.

SUMMARY OF OUTSTANDING MOTIONS

The following motions are before this court:

1. Defendants’ motion to strike certain materials submitted by plaintiffs in support of their motion for summary judgment;

2. Plaintiffs’ and defendants’ cross-motions for summary judgment on the CWA and NEPA claims; and

3. Defendants’ motion to dismiss plaintiffs’ CWA claim for lack of subject matter jurisdiction.

DEFENDANTS’ MOTION TO STRIKE

Defendants move to strike the following materials submitted by plaintiffs in support of their motion for summary judgment:

(1) Declaration of Brent Foster, Exhibits B and C;

(2) Declaration of Marianne Dugan, paragraphs 2, 3, and 6 11; and

(3) Second Declaration of Asante River-wind.

As discussed below, I am granting defendants’ motion to strike as to all three declarations; however, I note that my conclusions on the cross-motions for summary judgment would not change even if the declarations were not stricken.

A. Declaration of Brent Foster.

1. Defendants’Arguments.

Defendants move to strike Exhibits B and C to the Declaration of Brent Foster dated February 5, 2001, which are two scientific studies about B.t.k. drift that were referred to in Washington Department of Fish and Wildlife comments on the DEIS, but not provided to the USFS by any of the plaintiffs or any other commenters. The Washington Department of Fish and Wildlife had requested in its comments that B.t.k. drift be addressed in the EIS with respect to impacts on non-target species.

Defendants argue that although the USFS reviewed many scientific publications in its preparation of the EIS (EIS/AR 5099 at References Cited, pp. 1-11), it is not incumbent upon the USFS to review documents that are mentioned in passing but not submitted to it. Defendants also argue that these studies do not come within the narrow circumstances in which the Ninth Circuit has allowed extra-record review (discussed in Section A3 directly below).

2. Plaintiffs’Response.

Plaintiffs argue that the studies contained in Exhibits B and C are also part of the administrative record even though their text is not physically within the record. Plaintiffs argue that the administrative record is not just those documents that the agency has compiled and submitted as the administrative record, but also includes all documents and materials directly or indirectly considered by agency decision-makers, citing Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir.1989) (letters sent to administrative law judge included in administrative record).

3. Discussion.

A reviewing court is limited solely to what is contained in the administrative record in order to determine whether defendants’ “decision was based on the consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, the whole administrative record is not necessarily only those documents that the agency has compiled and submitted as the administrative record. Thompson v. U.S. Dept. of Labor, 885 F.2d at 555. Plaintiffs are correct that the whole administrative record consists of all documents and materials directly or indirectly considered by the agency decision-makers. Id.

The Ninth Circuit has allowed extra-record review in several circumstances: (a) the district court may obtain additional explanations from the agency when the agency’s failure to explain its action effectively frustrates judicial review; (b) the district court may inquire outside of the administrative record when it appears that the agency has relied on documents or materials not included in the administrative record; (c) the district court may permit discovery if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action; or (d) the district court may inquire outside of the administrative record when there is a strong showing of bad faith or improper behavior by the agency. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir.1988), modified by 867 F.2d 1244 (9th Cir.1989).

Plaintiffs do not make arguments that fit Exhibits B and C into any one of these exceptions. Rather, plaintiffs’ position appears to be that the USFS ignored or inadequately considered these studies in preparation of the EIS, so they must now be included in the administrative record and considered by this court. This is not one of the exceptions to the general rule that the review of agency action is limited to the administrative record.

Further, it is not a violation of NEPA for the EIS to rely on particular scientific methodologies and studies instead of others. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985); see also, 40 C.F.R. § 1502.24. The agency’s choice of studies on which to rely is within its discretion, and courts are precluded from reviewing such decisions unless they are found to be arbitrary or capricious. 5 U.S.C. § 706(2)(A). In this case, the EIS lists approximately 230 studies that were relied upon and cited in the EIS. EIS/AR 5099 at References Cited, pp. 1-11. The USFS had the discretion to chose these 230 studies as the basis of the EIS and to fail to include, for example, the two studies referenced in the Washington Department of Fish and Wildlife comments that plaintiffs now seek to become part of the record in this case.

Plaintiffs’ arguments are not sufficient to permit this court’s review of evidence that was not physically included in the administrative record, but was merely referred to in comments on the DEIS. Plaintiffs’ reliance on Thompson is misplaced because Thompson involved evidence that fit within the second of the exceptions permitted by the Ninth Circuit.

Defendants’ motion to strike Exhibits B and C to the Declaration of Brent Foster is granted.

B. Declaration of Marianne Dugan.

1. Defendants’Arguments.

Defendants move to strike paragraphs 2, 3, and 6-11 of the Declaration of Marianne Dugan dated February 5, 2001. In these paragraphs, Ms. Dugan purports to analyze and summarize 1999 raw data from the early warning system that plaintiffs received pursuant to a Freedom of Information Act (FOIA) request. Ms. Dugan admits in her declaration that she is not an expert in analyzing raw data and that her analysis is based entirely on “simple math.”

Defendants argue that Ms. Dugan draws conclusions in her declaration that are simply incorrect, and that summarizing raw data and drawing statistically valid conclusions therefrom do not involve “simple math.” Defendants submit the declaration of Iral Ragenovich, the entomologist on the interdisciplinary team for the DFTM EIS, to explain why Ms. Dugan’s conclusions are “completely flawed.” Def. Memo., p. 3. Ms. Ragenovich opines that Ms. Dugan’s declaration indicates that

“she is not familiar either with the biology or the population dynamics of the Douglas-fir tussock moth, and is not qualified to interpret data concerning the tussock moth. As a result, she has drawn completely erroneous conclusions about the Douglas-fir tussock moth populations and the Early Warning Trapping System.”

Ragenovich Deciar., p. 3.

2. Plaintiffs ’ Response.

Plaintiffs’ response to the motion against Ms. Dugan’s declaration is combined with, and therefore identical to, their response to defendants’ motion against the Second Declaration of Asante Riverwind, discussed in Section C below.

In their response, plaintiffs argue that the Declaration of Marianne Dugan and the Second Declaration of Asante River-wind are properly included in the court’s review even though they are materials outside of the administrative record compiled by the USFS. They assert that both declarations qualify under two of the exceptions developed by the Ninth Circuit regarding allowance of extra-record review. First, plaintiffs argue that this court may inquire outside of the administrative record in this case because it appears that the agency has relied on documents or materials not included in the administrative record. Presumably, plaintiffs are referring to the analyses of defendants’ experts of the 1999 early warning system raw data. Second, plaintiffs argue that the material in Ms. Dugan’s and Mr. Riverwind’s declarations is necessary to explain technical terms or complex subject matter involved in the agency action.

Plaintiffs also argue that the two declarations are not unsupported expert testimony, as argued by defendants. Rather, they are attempts by Ms. Dugan and Mr. Riverwind to interpret the government’s documents, just as the public is called upon to do when trying to understand the EIS. Plaintiffs argue that “if three lawyers and an executive director of a non-profit organization [Mr. Riverwind] cannot make sense of the project, the documentation is not clear and violates NEPA.” PI. Reply., p. 24. Thus, plaintiffs appear to be raising an issue under NEPA’s “readability” requirement, i.e., that the EIS be clear, readable, presented in plain language, presented in a dear format, and organized and written so as to be readily understandable by governmental decision-makers and interested non-professional laypersons likely to be affected by actions taken under the EIS. Environmental Council v. Kunz-man, 817 F.2d 484, 493-94 (9th Cir.1987).

3. Discussion.

Neither the Declaration of Marianne Dugan nor the Second Declaration of Asante Riverwind, discussed briefly below in Section C, fall within the exceptions developed by the Ninth Circuit regarding extra-record review. The declarations do not contain material the USFS relied upon in preparation of the EIS, nor do they contain necessary explanations of technical terms or complex subject matter.

Both declarations focus on the justifications for and operational details of the 2000 spraying project. The 2000 spray project is not before this court, except with respect to plaintiffs’ allegations that the declaration of an emergency that permitted the spraying in 2000 was improper. As discussed below in the section on the emergency declaration, the 2000 spray project has been completed; the emergency declaration has expired; and plaintiffs have not identified a remedy this court could provide with respect to the emergency declaration; as a result, plaintiffs’ and defendants’ cross-motions for summary judgment on the issue of the emergency declaration are moot. It follows, then, that documents and information about the justifications for and operational details of the 2000 spray project are properly not a part of the administrative record in this case, and are properly not before this court.

As to readability, the EIS must be organized and written so as to be readily understandable by governmental decision-makers and interested non-professional laypersons. Environmental Council v. Kunzman, 817 F.2d at 494. The main text of an EIS will routinely include some scientific data, but overly technical material and supporting data should ordinarily appear in appendices. Id. A reviewing court must read the EIS and make a pragmatic judgment as to its readability. Id. I have read the EIS in this case, and it is my pragmatic judgment that the body of the document is clearly organized and sufficiently well written. There is no violation of the “readability” rule here.

I also conclude that Ms. Dugan and Mr. Riverwind’s declarations are not competent evidence because they attempt to interpret technical scientific raw data, and neither of Ms. Dugan nor Mr. River-wind has made a showing that they have the expertise to engage in such interpretations. The interpretation of raw data is part of the science of statistics, and the USFS is entitled to rely on the reasonable conclusions of its own experts to determine what that data means and how it affects the decision of what should be sprayed. Headwaters, Inc. v. Bureau of Land Man agement, 914 F.2d 1174, 1180 (9th Cir.1990). Defendants’ motion to strike paragraphs 2, 3, and 6-11 of the Declaration of Marianne Dugan and the Second Declaration of Asante Riverwind is granted. Mr. Riverwind’s declaration is discussed briefly below.

C. Second Declaration of Asante River-wind.

1. Defendants’Arguments.

Defendants move to strike the Second Declaration of Asante Riverwind dated January 29, 2001. Mr. Riverwind states in his declaration that he has examined cocoon and larvae surveys received in response to FOIA requests and concludes that in 2000, defendants sprayed areas without surveying DFTM levels. Mr. Riv-erwind also states that Roger Sandquist, an entomologist with the USFS, told him on the telephone that unsurveyed areas were sprayed in 2000.

As with Ms. Dugan’s declaration, defendants argue that Mr. Riverwind attempts to interpret raw data without any showing of qualification or expertise. In support of this argument, defendants submit a declaration from Dr. Sandquist wherein Dr. Sandquist states that Mr. Riverwind draws unsupported conclusions in his declaration because he does not understand the sampling protocols.

Defendants also argue that Mr. River-wind’s declaration should be stricken because it purports to relay the words of Dr. Sandquist, which is hearsay and improper in a case involving record review only.

2. Plaintiffs ’ Response.

Plaintiffs’ response to the motion against Mr. Riverwind’s second declaration was combined with, and is therefore identical to, their response to the motion against Ms. Dugan’s declaration, discussed in Section B3 above.

3.Discussion.

For the reasons discussed above in Section B3, defendants’ motion to strike the Second Declaration of Asante Riverwind is granted.

CROSS MOTIONS FOR SUMMARY JUDGMENT

Plaintiffs and defendants cross-move for summary judgment on the issues of: (1) whether the declaration of an emergency was proper; (2) whether the aerial spraying of pesticides without a permit violates the CWA; and (3) whether the EIS violates NEPA.

A. Summary Judgment Standards.

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party’s claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). The Ninth Circuit has stated, “No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.” Id. at 1468.

B. Declaration of Emergency.

Plaintiffs attack the emergency declaration of the USFS Deputy Chief that permitted the 2000 spraying before resolution of plaintiffs’ administrative appeal of the ROD. Pursuant to the emergency declaration, TM-BioControl was sprayed on 39,392 acres of the Umatilla and WallowaWhitman National Forests in June and July of 2000.

1. Legal Standards.

“Automatic stay of implementation” means that, unless the USFS Chief declares an “emergency,” the project is stayed and the USFS does not have the authority to implement a project until after the appeal process has been completed. 16 U.S.C. § 1612; 36 C.F.R. § 215.10. An “emergency” is “an unexpected event, or a serious occurrence or a situation requiring urgent action.” 36 C.F.R. § 215.10(d)(1).

2. Plaintiffs ’ Arguments.

Plaintiffs argue that USFS Deputy Chiefs declaration an emergency, which created the exemption from the automatic stay of implementation, was improper and unfounded. According to plaintiffs, the Deputy Chiefs declaration was based upon insufficient information to justify a conclusion that an emergency existed. Plaintiffs argue that the declaration resulted in a purposeful thwarting of an appeals process that is designed to allow the public to bring any objections to the attention of the USFS before the agency renders a final decision.

Plaintiffs contend that this court must determine whether the Deputy Chiefs emergency declaration was based on a consideration of the relevant factors, and whether there was a clear error in judgment that makes the declaration arbitrary and capricious.

3.Defendants’Arguments.

Defendants argue that, since the ROD provided that the emergency exemption was applicable only to spraying in the year 2000 (ROD/AR 5533 at 10) and the year 2000 spraying under the exemption has been completed, any claim concerning the exemption is now moot. The challenged action is incapable of repetition, and the emergency exemption expired 15 days following disposition of the administrative appeal in August 2000.

. Defendants also contend that plaintiffs have not articulated, either in their complaint or their summary judgment motion, what relief this court can provide even if the emergency declaration had been improper.

Defendants also argue that plaintiffs waived their right to challenge the 2000 exemption when they did not pursue the issue in League of Wilderness Defenders v. Forsgren, CV 00-742-AS (D.Or.), a lawsuit that plaintiffs filed within days of the ROD was published in May 2000. Since the 2000 spraying did not begin until June 16, 2000, plaintiffs could have sought a temporary restraining order or preliminary injunction on the basis of their allegations of an unfounded emergency. In not doing so, defendants argue that they waived any challenge to the 2000 exemption.

Lastly, defendants dispute the claims made by plaintiffs regarding the justifications for emergency exemption, and argue that the exemption was well founded. Since June 2000 was the “latest ... that treatment would be effective to reduce defoliation of valuable sites in 2000” (AR 2422), and the administrative appeal would not be resolved until after June 2000, the emergency exemption was necessary to ensure that treatment was not delayed until June 2001.

4. Discussion.

Because plaintiffs do not articulate what relief they seek; the emergency declaration applied only to the year 2000; and the emergency declaration expired in August of 2000, plaintiffs’ and defendants’ cross-motions for summary judgment on the emergency declaration are denied as moot.

C. Violation of CWA.

Plaintiffs and defendants cross-move for summary judgment on the issue of whether the spray project violates the CWA. The specific issue is whether the aerial spraying of B.t.k. and TM-BioControl constitutes “the discharge of a pollutant” without a National Pollutant Discharge Elimination System (NPDES) permit in violation of Section 301(a) of the CWA.

1. Legal Standards.

Section 301(a) of the CWA provides that, without a NPDES permit, “the disr charge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The CWA defines “discharge” as “any addition of [a] pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(5), (6), (7), (12)(A), (14) & (16).

In order to establish a violation of the CWA, a plaintiff must prove that (a) defendants are “persons,” (b) who discharged and/or will discharge, (c) a “pollutant,” (d) from a “point source,” (e) into the “navigable waters of the United States,” and (f) the discharge was not authorized under an NPDES permit. 33 U.S.C. § 1311(a).

2. Plaintiffs ’ Arguments.

Plaintiffs focus on the point source requirement. Plaintiffs argue that the proposed spray project violates Section 301(a) of the CWA because it will result in the discharge of insecticides from a point source into streams and rivers without a NPDES permit. There is no dispute that defendants do not have, and have not applied for, a NPDES permit with respect to the spray project.

Plaintiffs argue that it cannot be disputed that pesticides will be discharged into navigable waters, pointing out that the EIS acknowledges that “[s]ome of the proposed protection areas [ie., spray areas] are along streams and bodies of water”; that “[i]nsecticide application along streams could result in some spray deposited directly into the water”; and that because of the introduction of B.t.k. into streams, “[i]t is prudent to assume that there could be mortality [of aquatic insects] associated with using B.t.k.” EIS/AR 5099 at IV-15 and IV-35.

Plaintiffs argue that insecticides will reach streams and rivers in two distinct ways: via direct .application and via drift. With respect to direct application, the spray project will involve the aerial application of insecticides using a “boom” attached to a helicopter on a maximum of 628,000 acres of forest that include 942 miles of stream-side habitat. Because defendants have not established no-spray buffers around streams when insecticides are applied to riparian lands immediately adjacent to the streams, plaintiffs argue that this is a direct discharge of pesticides from a “point source” into streams and other bodies of water.

With respect to drift, plaintiffs argue that B.t.k. is known to drift, and that some B.t.k. will reach additional streams via the drift.

Plaintiffs do not dispute that federal and state regulatory agencies have historically not applied the CWA’s permit requirements to the release of pesticides into U.S. waters via atmospheric spraying. However, they argue that the plain language of the CWA’s definition of “point source” demonstrates that defendants’ unpermit-ted discharge of B.t.k. and TM-BioControl violates Section 301(a) of the CWA.

The CWA defines “point source” as: any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

33 U.S.C. § 1362(14) (emphasis added).

According to plaintiffs, the pesticide sprayers mounted on the helicopters result in a “discernable, confined and discrete conveyance,” and are also consistent with the term “conduit.” Release from this point source results in the insecticide being deposited directly upon or drifting into streams adjacent to the stands of trees.

Plaintiffs also argue that the plain language of the definition of point source must be given effect over any agency regulation that attempts to or could be interpreted as varying the plain meaning. The Environmental Protection Agency (EPA) has promulgated a regulation dealing with silvicultural activities, identifying those that are to be considered point sources subject to NPDES permit requirements and those that are nonpoint sources. (Sil-viculture activities are those relating to the establishment, development, reproduction, or care of forest trees). The regulation provides as follows:

[ 40 C.F.R.] § 122.27 Silvicultural Activities (applicable to State NPDES programs, see § 123.25).

(a) Permit requirement. Silvicultural point sources, as defined in this section, are point sources subject to the NPDES permit program.

(b) Definitions. (1) Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestate and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA section 404 permit (see 33 C.F.R. 209.120 and part 233).

40 C.F.R. § 122.27 (emphasis added).

Plaintiffs argue that this regulation does not purport to rigidly define all silvicultural activities that are point sources. Plaintiffs conclude that the EPA regulation does not, nor was it intended to, exempt a discharge that otherwise meets the detailed statutory definition of a point source.

Thus, plaintiffs urge this court to apply the plain meaning of the statutory definition of “point source,” without regard to the EPA’s regulation, and hold the discharge of the insecticides in this case is from a point source, which violates the CWA because defendants have not obtained an NPDES permit.

3. Defendants ’ Arguments.

Defendants note that the EIS does not say that spraying discharges pesticides directly into water; rather, it says that application along streams could result in some spray deposited directly into the water. EIS/AR 5099 at IV-15. The target is never the water; it is the trees that may be host to the DFTM.

With respect to the EPA’s silviculture regulation, defendants argue that pest control is the activity at issue here; it is expressly a non-point source under the EPA regulation; and the helicopter sprayers are engaged in the normal silvicultural practice of pest control that comes squarely within the definition of “non-point source silvicultural activities” in the EPA regulation. Thus, defendants conclude, there is no discharge from a point source under the CWA.

4. Discussion.

Courts. that have addressed the exclusion from the NPDES permitting requirements for silvicultural nonpoint sources under the CWA and the EPA’s regulations, have enforced the regulation’s distinction between point and nonpoint sources, recognizing that not all sources of water pollution are point sources subject to NPDES requirements:

We recognize that nonpoint sources of pollution constitute a major source of pollution in the nation’s waters.... When Congress established the [NPDES] in 1976 ..., it drew a distinct line between point and nonpoint pollution sources. Point sources are subject to direct federal regulation and enforcement under the [NPDES]. Nonpoint sources, because of their very nature, are not regulated under the NPDES. Instead, Congress addressed nonpoint sources of pollution in a separate portion of the Act which encourages states to develop areawide waste treatment management plans.

Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 849 (9th Cir.1987) (footnotes omitted).

In Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8th Cir.1998), the plaintiffs argued that the USES had failed to obtain the necessary NPDES permit for discharges of pollutants that accompany logging and road construction. The court found the contentions to be without merit, noting that EPA regulation § 122.27 does not include logging and road building activities in the narrow list of silvicultural activites that are point sources requiring NPDES permits. 141 F.3d at 810. Thus, these activities were nonpoint source silvi-culture activities. Id.

Also in Sierra Club v. Martin, 71 F.Supp.2d 1268 (N.D.Ga.1996), defendants did not dispute that their actions would result in pollutants being discharged into various waterways. Rather, defendants argued that the discharge was not from a point source as defined in the CWA and the EPA silviculture regulation. The court noted that “the legislative history and implementing regulations of the Clean Water Act show that Congress and the Environmental Protection Agency intended to exempt most silvicultural activities from the Clean Water Act’s permit requirements.” 71 F.Supp.2d at 1305. The court went on to hold that because none of defendant’s discharges related to rock crushing, gravel washing, log sorting, or log storage facilities (activities designated by the regulation to be point source silvi-cultural activities), they were nonpoint source silviculture activities and the NPDES permit was not required. Id.

Plaintiffs have cited no cases wherein courts have not deferred to the EPA’s interpretation of the statutory term “point source,” nor any cases holding that the EPA’s silviculture regulation is unenforceable or inconsistent with the plain meaning of the statute.

The silviculture regulation expressly provides that the term “silviculture point source” does not include “non-point source silvicultural activities such as ... pest and fire control.” The spraying at issue here is a silvicultural activity, a pest control activity, and included in the list of activities that do not constitute nonpoint source silvicultural activities. Plaintiffs’ motion for summary judgment on this claim is denied and defendants’ motion for summary judgment is granted.

D. Violation of NEPA.

1. Introduction.

Plaintiffs and defendants cross-move for summary judgment on the issue of whether the EIS violates NEPA. Plaintiffs argue, and defendants dispute, that the EIS violates NEPA in each of the following ways, discussed in detail below:

(a) Failing to adequately disclose the impacts on butterflies and other non-target species;

(b) Failing to adequately disclose the impacts on birds;

(c) Failing to adequately disclose the impacts on sensitive bat species;

(d) Failing to adequately disclose the impacts on aquatic species;

(e) Failing to adequately disclose the impacts on insects other than butterflies and moths that prey on pest species of insects;

(f) Failing to adequately disclose potential human health effects;

(g) Failing to adequately address the cumulative effects of the spray project;

(h) Failing to adequately document the true scale of the DFTM outbreak and the ensuing harm;

(i) Ignoring the beneficial role of the DFTM;

(j) Failing to adequately discuss the risk of compromising the DFTM’s strongest natural predator (the DFTM virus); and

(k) Failing to adequately disclose site-specific impacts.

2. Legal Standards for EIS Review Under NEPA.

The purpose of NEPA is to ensure that federal agencies are fully aware of the impact of their decisions on the environment. Oregon Environmental Council v. Kunzman, 817 F.2d at 492. Section 102(2)(c) of NEPA requires federal agencies to prepare an EIS on the environmental impact of any proposed significant federal project, whether those impacts are “direct” or “indirect.” 40 C.F.R. § 1502.16; Id.; City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975). The EIS serves two purposes: (a) it ensures that the federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences; and (b) it provides the public with information on the environmental impact of a proposed action and encourages public participation in the development of that information. Kunzman, 817 F.2d at 492; Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985). The EIS acts as a procedural safeguard that forces the agency to consider a project’s effects on the environment. The court’s task is to determine if the agency has taken a hard look .at the environmental effects. City of Los Angeles v. F.A.A., 138 F.3d 806, 807 (9th Cir.1998).

Under the Administrative Procedures Act, a reviewing court must determine whether the agency action was undertaken observance of procedure required by law. 5 U.S.C. § 706(2)(A); Oregon Environmental Council v. Kunzman, 817 F.2d at 492. The adequacy of an EIS depends upon whether it was prepared in observance of the procedures required by NEPA, and whether it contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Kunzman at 492. The reviewing court must make a pragmatic judgment whether the EIS’s form, content and preparation foster both informed deci-sionmaking and informed public participation. Id. The reviewing court may not “fly speck” an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies. Id. However, an EIS may be found inadequate under NEPA if it does not reasonably set forth sufficient information to enable the decisionmaker to consider the environmental factors and make a reasoned decision. Id.

A reviewing court may not substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action. Kunzman at 494; State of California v. Block, 690 F.2d 753, 761 (9th Cir.1982). NEPA also does not require the reviewing court to decide whether an EIS is based on the best scientific methodology available, nor does NEPA require the court to resolve disagreements among various scientists as to methodology. Kunzman at 496. The reviewing court’s task is simply to ensure that the procedures followed by the agency resulted in a reasoned analysis of the evidence before it, and that the agency made the evidence available to all concerned. Id.

Thus, in the Ninth Circuit, “the environmental impact statement review standard is limited and decidedly deferential to the agency’s expertise.” Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). Further, where the court’s review involves the interpretation of an agency’s regulation, “we defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the regulation.” Id.

3. Impacts on Butterñies and Other Non Target Species.

(a) Plaintiffs’ Arguments.

Plaintiffs argue that the administrative record clearly establishes that B.t.k. is a pesticide that is harmful to all butterflies and other Lepidoptera; that exposure to B.t.k. will kill most species of moths and butterflies if the exposure occurs during their larval stage; and that species of butterflies and moths within the target spray areas would be significantly and adversely affected by the aerial application of B.t.k. Plaintiffs argue that the EIS does not adequately disclose these potentially significant effects of the spray project on butterflies and other non-target Lepidopt-era, and on the species that they pollinate, both from direct application of B.t.k. and drift from the aerial application.

Plaintiffs cite to the comments of the Washington Department of Fish and Wildlife on the DEIS, wherein the department explicitly requested that the issue of drift of the pesticides be addressed in the EIS. According to plaintiffs, B.t.k. can drift a substantial distance from a target spray area in concentrations that are lethal to butterflies and moths. Plaintiffs argue that the EIS violates NEPA by not addressing the effects of the drift, and also by not assessing the size of the area that would be affected by B.t.k. drift or the actual impact to this area.

Plaintiff cite to comments by both the US/FWS and the U.S. Department of Interior that the impacts to wildlife from this project are likely to be significant. AR 3835; AR 4248. Plaintiffs argue that the EIS downplays these impacts and violates the NEPA by failing to (1) contain any discussion of the location of sensitive, threatened, and endangered species, and what site-specific impacts to those species will be; or (2) mention surveying for sensitive species to locate them and protect them from spraying, as recommended by the US/FWS. Rather, according to plaintiffs, the EIS vaguely states that the spraying process “may” be modified or mitigated in some unstated ways to protect sensitive wildlife. EIS/AR 5099 at App. G-3.

Plaintiffs also cite to US/FWS comments on the DEIS that sensitive butterflies, including the Mardon skipper, a candidate species for listing under the Endangered Species Act, are at particular risk from the use of B.t.k., and that showy stickseed is at risk from spraying because it is known to be pollinated in part by Lepidopterans. The showy stickseed was recently proposed a candidate for listing under the Endangered Species Act. AR 3889, 3842.

Lastly, plaintiffs contend that the EIS’ assertion that populations of non-target Lepidoptera would recover to pre-spraying levels within one to two years is conclusory and not supported by data. EIS/AR 5099 at IV-43.

(b) Defendants’ Arguments.

Defendants argue that the EIS adequately discloses the impacts to non-target Lepidoptera (moths and butterflies), and the plant species they pollinate, and that it does not downplay the impact of B.t.k. on non-target Lepidoptera. For example, the EIS expressly states that “B.t.k. does affect many Lepidoptera species — (moths and butterflies). Given its broad range of efficacy, there can be little question that native species would be affected in a protected area.” EIS/AR 5099 at IV-42. The EIS also notes that “applications of B.t.k. have been demonstrated to cause a significant decrease in the number of larval and adult Lepidoptera the year of protections [ten citations omitted]. Impacts include a significant decrease in the richness and/or abundance during the year of protection.” EIS/AR 5099 at IV-42, IV-43. These statements, contained in the EIS section on impacts on non-target Lepidoptera in Chapter IV and including citations to twelve different studies, contradict plaintiffs’ allegation that impacts to Lepidopt-era were not properly considered or disclosed.

It is defendants’ position with respect to this issue, and to several other issues raised by plaintiffs and discussed below, that plaintiffs’ arguments have inappropriately relied on comments made on the DEIS. Defendants acknowledge that they are legally obligated to assess and consider comments on the DEIS, both individually and collectively, and respond to those comments. 40 C.F.R. § 1503.4(a). Under the regulation, possible responses include modifying alternatives; developing and evaluating other alternatives; supplementing, improving or modifying analyses; making factual corrections; or explaining why no further response is needed. Id. Defendant argue that they properly addressed comments made on the DEIS, and that plaintiffs’ attack on the DEIS, without consideration of the responses to comments in the EIS and ROD, is misplaced and fails to support their position. Defendants refer to Appendix C of the EIS, which summarizes responses to public comments on the DEIS, and to pages I — 1, II-l, III — 2, and TV-4 of the EIS, which summarize changes made to the EIS in response to public comments.

Defendants also contend that plaintiffs’ arguments are contradictory. Plaintiffs argue that the EIS “downplays” impacts to wildlife, while citing to pages IV-15 through IV-37 of the EIS. These are 17 pages of the EIS devoted to a discussion of the impacts to wildlife. In addition to the discussions in the EIS, defendants point to numerous specialist reports on the impacts to other wildlife that were relied upon and are contained in the administrative record, including reports on anadromous fish, bull trout, other fish and wildlife (including Management Indicator Species, proposed sensitive species, and species with identified concerns such as flammulated owls, goshawks, barred owls, cutthroat, other resident trout, margin sculpin, songbirds, bats, shrews, deer and elk), and species listed under the Endangered Species Act. See, Def. Memo., p. 43, for citations to these studies. Defendants also argue that the administrative record supports the conclusion in the EIS that the project has no effect on the Canada lynx, woodland caribou, or bald eagle in four forests, or on the Lost River, shortnose, and Warner suckers, and that the project is not likely to adversely affect the gray wolf, grizzly bear or bull trout on four forests, or the bald eagle on one forest. AR 5848-54. Defendants contend that the US/FWS concurred in these conclusions.

Defendants argue that the EIS also discloses that, for all sensitive fish and wildlife species except the big-eared bat, the project has effects that are immeasurable, minor, or consistent with conservation strategies. EIS/AR 5099 at IV-32 to IV-35. As to the big-eared bat, limiting spraying in bat areas to TM-BioControl minimizes the impact on the bat species because TM-BioControl does not affect flying insects (the bats’ food source) other than tussock moths and is not subject to the same drift issues as B.t.k. EIS/AR 5099 at IV-35; ROD/AR 5533 at 4.

With regard to the showy stickseed, both the EIS and the second ROD took note of the showy stickseed, a plant found only on the Leavenworth Ranger District, and established a specific mitigation measure applicable to all the action alternatives: only TM-BioControl could be used in a buffer around showy stickseed because these “plants are pollinated by Lepi-doptera (moths and butterflies).” EIS/AR 5099 at II — T; ROD2/AR 5719 at 4. The EIS also analyzed the Mardon skipper as a non-target Lepidoptera species of concern because it is a candidate for federal listing. EIS/AR 5099 at III-26, IV-42, IV-43.

(c) Discussion.

My review of the EIS indicates that it discloses and discusses the negative effects to non-target species in numerous places, and in fact the ROD adopts mitigation measures to lessen the impacts of the negative effects. For example:

(1) The EIS and ROD analyze the effects of direct applications of both B.t.k. and TM-BioControl. EIS/AR 5099 at II-7, IV-43, App. C-9, App. G-2; ROD/AR 5533 at 4. The EIS contains a 65 page chapter that analyzes the effects of each of the three alternatives on threatened and endangered species in each of the affected national forests, and on the DFTM and non-target moths and butterflies. EIS/AR 5099 at Chapter IV. As to the effects of each alternative on the 40 sensitive species that were analyzed in the EIS, for most the determination was either “no effect” or “may affect, but will not lead towards federal listing.” EIS/AR 5099 at IV-27 to IV-37.

(2) The whole of Appendix E is devoted to the effects of B.t.k. on non-target moths and butterflies. EIS/AR 5099 at App. E. B.t.k. affects many Lepidoptera species (moths and butterflies) and there is little question that native species would be affected in sprayed areas. EIS/AR 5099 at IV-42. B.t.k. will cause a temporary reduction in populations of non-target Lepidopt-era in treatment areas. EIS/AR 5099 at IV 61; ROD/AR 5533 at 6. These effects will be minimized through a mosaic of untreated areas and areas treated with only TM-BioControl. Id. Other mitigating and operational measures will include avoiding meadows and forest edges where the highest number of non-target Lepi-doptera are likely to occur. Id. Further, “[a] number of recent studies on non-target Lepidoptera show that these insects return to pre-treatment levels” in two to three years. EIS/AR 5099 at IV-61.

(3) TM-BioControl does not affect non-target moths and butterflies because it is specific to DFTM. EIS/AR 5099 at IV 48. The decision to use TM-BioControl to the largest extent possible was designed to address the concern about the impact of the project on non-target moths and butterflies: TM-BioControl targets DFTM, and its use will therefore reduce any potential effect on non-target moths and butterflies. ROD/AR 5533 at 6. In addition, about 40 percent of the supplies of TM-BioControl will be reserved for use in areas where mitigation measures are being employed, including, fish habitats, big-eared bat maternity sites, spotted owl activity centers, and songbird study areas. Id.

(4) Any effects from drift would be similar to or less than the effects of direct application. ROD/AR 5533 at App., p. 5 (unnumbered pages). Drift cannot be avoided, but operational guidelines will mitigate impacts from drift. Id. Operational guidelines include suspension of spraying when weather conditions could cause drift into non-spray areas and observation aircrafts with qualified aerial observers accompanying the spraying aircraft to monitor spray behavior and assist in avoidance of sensitive areas. EIS/AR 5099 at App. G 1.

(5) In treatment areas, wildlife will not be able to take advantage of high DFTM populations for opportunistic feeding, but DFTM in adjacent unprotected areas will be available for such feeding. Id.

(6)The Mardon skipper was analyzed as a non-target Lepidoptera species of concern because it is a candidate for federal listing. EIS/AR 55099 at III-26, IV-42, IV-43. The Mardon skipper does not occur in analysis areas of Washington and, in Oregon, is found only in Klamath County, which is not included in the spray project. EIS/AR 5099 at IV-42; ROD/AR 5533 at 6.

The EIS also summarizes the public comments the agency received, and summarizes its responses to those comments. EIS/AR 5099 at App. C. Plaintiffs’ reliance in its arguments, with respect to this issue and the others discussed below, on comments made prior to publication of the EIS is not well taken. Defendants correctly point out that their legal obligation is to consider comments and respond to them, but not to modify the project to conform with each and every comment. The project obviously evokes competing opinions and concerns, and the agency has the discretion to decide among the alternative courses of action.

This court’s review of an EIS under NEPA is very limited. The court must determine if the EIS contains a reasonably thorough discussion of the significant aspects of the environmental impact, and may not subs