SIERRA CLUB et al v. UNITED STATES ARMY CORPS OF ENGINEERS et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SIERRA CLUB, et al., 	)
)
Plaintiffs 	)
)
v. 	) 	No. 2:20-cv-00396-LEW
)
UNITED STATES ARMY CORPS 	)
OF ENGINEERS, et al., 	)
)
Defendants 	)
)
v. 	)
)
CENTRAL MAINE POWER CO., 	)
)
Intervenor Defendant 	)
ORDER ON MOTION TO SUPPLEMENT OR AMEND COMPLAINT
AND MOTION FOR PRELIMINARY INJUNCTION
The Sierra Club, the Natural Resources Council of Maine, and the Appalachian
Mountain Club (“Plaintiffs”) filed this civil action to challenge the decision of the United
States Army Corps of Engineers (“the Corps”) to issue a permit to Intervenor Defendant
Central Maine Power Company (“CMP”) under section 404 of the Clean Water Act and
Section 10 of the Rivers and Harbors Act. The Corps’ decision turns on the Corps’ finding
that the permitted activities are not likely to have a significant adverse environmental
impact on waters of the United States and, therefore, do not require the Corp to prepare an
environmental impact statement.
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The matter is before the Court on Plaintiffs’ Motion for Leave to Supplement the
Complaint (ECF No. 40) and Motion for Preliminary Injunction (ECF No. 18). Plaintiffs’
Motion for Leave is hereby summarily GRANTED without further discussion. Plaintiffs’
Motion for Preliminary Injunction is DENIED for reasons set forth at length below.
BACKGROUND STATEMENT
Central Maine Power Company proposes to construct the New England Clean
Energy Connect (“NECEC”), an electricity transmission project that would connect Hydro
Quebec to the New England energy grid (“the NECEC Project” or “the Project”).1 After
proceedings by the Maine Department of Environmental Protection, the Land Use Planning
Commission, and the Public Utilities Commission, the Project has evolved in a variety of
ways designed to reduce its environmental impact and the Project has been green lighted
by 	the 	State 	to 	begin 	construction. 	More 	specifically, 	the 	Maine 	Public 	Utilities
Commission granted the Project a certificate of public convenience and necessity. The
Commission’s certificate has been subjected to legal challenge and that challenge has
failed. NextEra Energy Res, LLC v. Maine Pub. Util. Comm’n, 227 A.3d 1117 (Me. 2000).
Because the Project passes over waters of the United States (“WOTUS”), inclusive
of adjacent wetlands, and because the Project proposes both temporary and permanent fill
of wetlands, CMP must obtain a permit from the Army Corps of Engineers under the Clean
Water Act, 33 U.S.C. §§ 1251 et seq. Additionally, because the Project proposes that CMP
1 Although the NECEC Project affects the entire New England energy grid, which includes Maine’s
population centers, the primary anticipated beneficiaries of the project in terms of the volume of energy
consumed are the much larger population centers in Massachusetts. Legislative initiatives in Massachusetts
are, in fact, the impetus for the Project. See Next Era Energy Res, LLC v. Maine Pub. Util. Comm’n, 227
A.3d 1117, 1119-20 (Me. 2020).
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will bore a channel beneath the Kennebec River using horizontal directional drilling
(HDD), CMP also must obtain a permit from the Corps under the Rivers and Harbors Act,
33 U.S.C. § 403. See also 33 C.F.R. § 322.3. The Corps’ exercise of CWA and RHA
permitting authority over the Project is subject to the National Environmental Policy Act,
42 U.S.C. §§ 4331 et seq., which requires the Corps to assess the environmental impacts
of these proposed actions before permitting them.
On July 7, 2020, the Corps memorialized its NEPA assessment in a document
entitled Department of the Army Environmental Assessment and Statement of Findings for
the [NECEC Project] (hereafter “EA”) (ECF No. 19-6). The Corps concluded its EA with
a finding that the proposed actions subject to its CWA/RHA permit review authority do
not amount to “a major federal action significantly affecting the quality of the human
environment.” EA at 160 § 12.3. The Corps then provided CMP with an “initial proffered
permit” and, after reviewing CMP’s objections to certain permit conditions, produced an
EA Addendum (ECF No. 19-13) that “finalized” the permit on November 6, 2020.
The Corps’s EA is subject to judicial review under the Administrative Procedures
Act, 5 U.S.C. §§ 701 et seq. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807,
1813 (2016) (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (to be final, agency
action must consummate the decisionmaking process and determine rights and obligations
such that legal consequences follow)).2 Plaintiffs contend the Corps abused its discretion
when it found the proposed actions are not a major federal action and they ask this Court
2 The Corps and CMP argue Plaintiffs filed suit too soon because they filed after the Corps produced its
initial EA but before it finalized its permit. Primarily to avoid stumbling over this technical legal hurdle,
and to address issues related to the Corps’ revision of its EA through an Addendum, Plaintiffs filed their
Motion to Supplement (ECF No. 40).
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to vacate the Corps’ EA, remand the CWA and RHA permit applications for further NEPA
proceedings, 	and 	enjoin 	construction 	of 	the 	NECEC 	until 	the 	Corps 	produces 	an
environmental impact statement for the Project.
LEGAL BACKDROP
The Clean Water Act (CWA) is part of “a comprehensive legislative attempt ‘to
restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985)
(quoting 33 U.S.C. § 1251). Section 404 of the CWA assigns the Corps jurisdiction to issue
permits following public hearings, which permits, if granted, authorize the discharge of
“any pollutant,” including “fill material,” into “navigable waters.” 33 U.S.C. §§ 1342(a)(1),
(4), 1344(a).
The CWA defines “navigable waters” as “the waters of the United States” (hereafter
“waters” or “WOTUS”). Id. § 1362(7). That definition “makes it clear that the term
‘navigable’ … is of limited import.” United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 133 (1985). However, the CWA’s definition of waters necessarily “delineates
the geographic reach” of the Corps’ permitting power. Nat’l Ass’n of Mfrs. v. Dep’t of
Defense, 138 S. Ct. 617, 625 (2018). As construed by the Supreme Court, the definition
authorizes the Corps to extend its permitting authority at least as far as “wetlands adjacent
to navigable waters.” Id. (citing Riverside, 474 U.S. at 133). As explained in Riverside, it
is reasonable for the Corps to exercise CWA jurisdiction over wetlands because it is
reasonable for the Corps to conclude “that wetlands may affect the water quality of adjacent
lakes, rivers, and streams.” 474 U.S. at 134.
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The Corps also has jurisdiction under Section 10 of the Rivers and Harbors Act
(RHA) to authorize “any obstruction” of “the navigable capacity of any of the waters of
the United States.” 33 U.S.C. § 403. Pursuant to the Corps’ regulations, “[f]or purposes of
a section 10 permit, a tunnel or other structure or work under or over a navigable water of
the United States is considered to have an impact on the navigable capacity of the
waterbody.” 33 C.F.R. § 322.3(a). Here, the proposed HDD activity is subject to RHA
review. CMP’s handling of extracted materials during this activity is also subject to the
Corps’ CWA oversight, if only to ensure that the materials are not released into the River
or other waters and/or wetlands.
The Corps’ does not exercise its CWA and RHA permit authority in a silo. The
Corps takes into 	consideration 	other federal statutory schemes 	and regulations, as
applicable, and the Corps generally considers inputs from federal and state regulatory
agencies when reviewing permit applications, all of which it did for the NECEC.
Of particular significance to this civil action, the National Environmental Policy Act
requires federal agencies to take a hard look at environmental concerns before approving
actions that require federal permits or other forms of authorization. Kleppe v. Sierra Club,
427 U.S. 390, 410 n. 21 (1976). More specifically, NEPA requires federal agencies “to the
fullest extent possible” to:
(A) utilize a systematic, interdisciplinary approach which will insure the
integrated use of the natural and social sciences and the environmental design
arts in planning and in decision making which may have an impact on man’s
environment;
(B) identify and develop methods and procedures, in consultation with the
Council on Environmental Quality [to] insure that presently unquantified
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environmental amenities and values may be given appropriate consideration
in decision making along with economic and technical considerations;
(C) include in every recommendation or report on proposals for … major
Federal actions significantly affecting the quality of the human environment,
a [detailed environmental impact statement with five subject areas3];
(D) [independently evaluate the relevant findings of state agencies or
officials with statewide jurisdiction over the project to the extent they
contribute to the preparation of any statement required in subparagraph (C)];
(E) study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources;
(F) recognize the worldwide and long-range character of environmental
problems and, where consistent with the foreign policy of the United States,
lend appropriate support to initiatives, resolutions, and programs designed to
3 The five subject areas for detailed discussion, when applicable based on a “significant” impact finding,
are:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be
implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the
maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved
in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C). Furthermore:
Prior to making any detailed statement, the responsible Federal official shall consult with
and obtain the comments of any Federal agency which has jurisdiction by law or special
expertise with respect to any environmental impact involved. Copies of such statement and
the comments and views of the appropriate Federal, State, and local agencies, which are
authorized to develop and enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public as provided by section
552 of Title 5, and shall accompany the proposal through the existing agency review
processes[.]
Id.
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maximize international cooperation in anticipating and preventing a decline
in the quality of mankind's world environment;
(G) make available to States, counties, municipalities, institutions, and
individuals, advice and information useful in restoring, maintaining, and
enhancing the quality of the environment;
(H) 	initiate 	and 	utilize 	ecological 	information 	in 	the 	planning 	and
development of resource-oriented projects; and
(I) assist the Council on Environmental Quality established by subchapter II
of this chapter.
42 U.S.C. § 4332(2) (alterations my own).
These 	requirements 	are 	“designed 	to 	promote 	human 	welfare 	by 	alerting
governmental actors to the effect of their proposed actions on the physical environment.”
Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983). NEPA
“‘places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action’ and to ‘ensure[] that the agency will inform
the public that it has indeed considered environmental concerns in its decisionmaking
process.’” Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 300
(1st Cir. 1999) (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council,
Inc., 462 U.S. 87, 97 (1983)). However, these requirements “are procedural in nature and
are not intended to dictate any particular substantive outcome.” Safeguarding the Historic
Hanscom Area's Irreplaceable Res., Inc. v. F.A.A., 651 F.3d 202, 217 (1st Cir. 2011)
(emphasis added).
As reflected in § 4332(2)(C), the Corps is required to consider whether a project is
a “major Federal action[] significantly affecting the quality of the human environment.”
When federal involvement is limited to the exercise of permit review authority for private
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activity 4 , the exercise of that authority can result in major federal action where the
permitted action is itself major and subject to the agency’s power to prevent or influence
results. 	Mayaguezanos, 198 F.3d at 302 (“[W]e look to whether federal approval is the
prerequisite to the action taken by the private actors and whether the federal agency
possesses some form of authority over the outcome.”).5
The parties dispute whether the Corps’ exercise of its authority to grant CMP’s
CWA 	and 	RHA 	permit 	applications 	is 	a 	“major 	federal 	action” 	that 	requires 	an
“environmental impact statement” (“EIS”) under 42 U.S.C. § 4332(2)(C). The Corps’
process of making that determination began—and here ended—with an environmental
assessment. If the Corps’ EA reasonably demonstrates that the permitted actions will not
produce significant impacts on the human environment, then the Corps was not required to
go the extra distance to produce an EIS and permissibly concluded its NEPA review with
a “finding of no significant impact” (“FONSI”). 40 C.F.R. § 1508.9(a) (2018) (superseded
effective Sept. 14, 2020).6
4 The NECEC is not a federal project and there is no federal statute that imposes on the Corps project-wide
control and oversight, unlike, for example, FERC’s responsibility to review natural gas pipeline projects
under the Natural Gas Act, see, e.g., Twp. of Bordentown, New Jersey v. Fed. Energy Regulatory Comm’n,
903 F.3d 234, 243 (3d Cir. 2018), or the Forest Service’s responsibility to review programs and projects
that take place in a national forest under the National Forest Management Act, see, e.g., Cronin v. U.S.
Dep’t of Agric., 919 F.2d 439, 441 (7th Cir. 1990).
5 Regulations issues by the Council on Environmental Quality (CEQ) state that NEPA’s “federal actions”
include both the federal government’s own actions, such as promulgation of a rule or construction of a
public project, as well as government actions that authorize non-federal activities, such as approving private
projects “by permit or other regulatory decision.” 40 C.F.R. § 1508.18(a), (b)(4) (2018) (superseded
effective Sept. 14, 2020). “The CEQ’s regulations clarify that the term ‘major’ ‘reinforces but does not
have a meaning independent of significantly,’ id. § 1508.18, and explain that interpretation of the term
‘significantly’ entails case-by-case consideration of the context of the action and the severity of its impact,
id. § 1508.27.” Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015).
6 “The importance of an EA or an EIS lies not merely in the aid it may give to the agency’s own
decisionmaking process, but also in the notice it gives the public of both the environmental issues the agency
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THE P ROJECT
The NECEC Project is a large-scale electrical power transmission project proposal
designed, principally, to connect a source of non-fossil-fuel energy (Hydro Quebec) with
a New England population center (Massachusetts). The Project is divided into five
segments. Segment 1, the most controversial segment, involves the creation of a new
transmission line corridor over 53 miles of forested terrain in the western Maine mountain
region. Segments 2 through 5 involve expansion and upgrade of an existing transmission
line corridor. Based on Plaintiffs’ presentation thus far, Segment 1 of the Project is the
primary driver of this litigation.
As a result of regulatory review by state agencies, several requirements have been
imposed on or assumed by CMP related to cutting and clearing activity. The Corps has
adopted these requirements as special conditions of the Corps’ permit. EA at 156-57 §
11.2(15)-(19). Relative to watershed concerns, these requirements include buffers of 100
feet for fisheries habitat and 75 feet for other rivers, streams, and brooks. E.g., EA at 16
(“All streams identified as Atlantic salmon habitat will have a 100-foot riparian buffer and
any non-capable species [of tree] exceeding 10 feet will remain within the stream buffer
is aware of and those it has missed.” Illinois Commerce Comm’n v. I.C.C., 848 F.2d 1246, 1260 (D.C. Cir.
1988). Ordinarily, preparation of an EIS opens the door to greater scrutiny by the public and other branches
of the government by exposing in greater detail the reasoning and data the agency relies on to determine
that a particular project or particular component of a project is well designed to avoid unnecessary harm to
environmental resources. Nat. Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 92-94 (2d Cir. 1975). Still,
even the preparation of an EA can be a rather elaborate process, and even an EA includes public notice and
comment. Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015); Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 763–64 (2004).Where it is obvious that a permitted action would be major in
its impacts on the human environment, the Corps need not draft an EA and may, instead, get on with the
business of preparing an EIS. “The purpose of an EA is simply to help the agencies decide if an EIS is
needed.” Sierra Club v. Marsh, 769 F.2d 868, 875 (1st Cir. 1985).
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outside the wire zone.”). Within Segment 1, CMP will apply buffers to all riparian
crossings. Additionally, the entire length of Segment 1 involves a buffered approach to
cutting outside the 54-foot wide wire zone. 	EA at 18. In the other Segments, CMP will
apply buffers to “all coldwater fisheries.” EA at 11. This does not mean that no trees will
be cleared in the buffers. In Segment 1, for example, capable tree species – those trees
capable of growing to heights that would threaten the transmission lines – would be cleared
in the wire zone, and all other species of woody vegetation would be cut back to a height
of 10 feet. Forest clearing and thinning activity is also scheduled for the winter months to
reduce soil disturbance and other surface impact. After the Corridor is cut, proposed
maintenance includes periodic application of “environmentally friendly … chemical
treatments.” However, “CMP has committed to not using herbicides in any location along
the 53.1 miles of new corridor (Segment 1) or proximate to waterways or rare plants to
include federally listed small whorled pogonia.” EA at 10. See also EA at 13 (“Herbicides
will not be used within the stream buffers [or] within 25 feet of standing water.”).
Installation of the Project, as proposed, also involves temporary fill of wetlands with
construction pads that enable equipment to transit certain wetlands with less intensive
resulting impact for purposes of tree cutting, hole drilling and pole-installation activity.7
These requirements and others not specified in this Order reduce, but do not negate impacts
to fisheries habitat, vernal pools, and wetlands resulting from, for example, increased
sunlight infiltration producing increased water temperatures and decreased contribution of
woody debris to habitats.
7 CMP is required to place temporary bridges that fully span streams over which work crews transit.
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The project also involves permanent fill of wetlands to install 98 support poles (of a total
of roughly 1,450 poles) and to expand or build electrical stations along the Corridor.
As for the path and footprint of the project (“the Corridor”), the motion record
includes the following information.
Segment 1
Segment 1, as proposed, would run by means of overhead transmission lines 53
miles from the Maine-Canada border at Beattie Township to the Forks Plantation. The
Corridor would run in a generally eastward direction until the western edge of Parlin Pond
Township, where the line would veer southward through Johnson Mountain Township
before cutting east and crossing Moose Alley (U.S. Route 201) and then dropping south
again through West Forks Plantation and into Moxie Gore Township where the line would
cross the Kennebec River along the boundary between the West Forks and Moxie Gore,
CMP would construct a transition station on each side of the Kennebec River and run its
transmission lines between the two transition stations by horizontal directional drilling
(HDD) of a tunnel8 beneath the Kennebec River. After this subterranean crossing, the
Corridor would once more be an overhead transmission line that would travel in a generally
southerly direction until meeting an existing transmission corridor at the north eastern edge
of the Forks Plantation.
Although CMP has acquired a 300-foot right of way for the NECEC in Segment 1,
CMP is not authorized by state regulators—and does not itself propose—to clear cut the
8 CMP’s original proposal was to span the River with overhead lines, but it amended its proposal “to
eliminate visual impacts on recreational users of this Outstanding River Segment and the associated
concerns of environmental regulators, the host communities, and other stakeholders.” EA at 89.
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entire width of its right of way in Segment 1. Instead, CMP would use the southern 150
feet, in which it would cut a swath approximately 54 feet wide and gradually increase tree
heights toward the edge of the 150-foot corridor.
The transmission line in Segment 1 would cross over parts of 481 freshwater
wetlands, 300 rivers, streams or brooks (most of which are fishery habitat), and 6 water
bodies designated Inland Waterfowl and Wading Bird Habitats. The line support structures
(principally poles) are spaced at a significant distance (on average 900 feet) and are tall
enough to make the line stand proud of the surrounding canopy. In 12 wildlife areas totaling
about 14 miles, the poles will be tall enough to permit full height vegetation. EA at 12, 18.
Segment 2
In Segment 2, the NECEC would join an existing 150-foot wide transmission
corridor and, over its 22-mile run upgrade and widen by 75 feet the existing corridor. In
Segment 2 the existing corridor crosses the Appalachian Trail three times.9 Segment 2
terminates at the Wyman Dam hydroelectric facility where there is an existing overhead
crossing of the Kennebec River.
The Corps states that the freshwater impacts are largely avoided in this segment
because they are crossed by overhead lines. However, 1.13 acres of forest cover for wading
bird habitat and 18 vernal pools will be converted to scrub/shrub.
9 CMP’s proposal is to use nonreflective cable housings near the AT crossing and allow a greater canopy
height beneath the line. CMP’s proposal also would adjust the AT so hikers would pass beneath the Corridor
one time rather than three.
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Segments 3 and 4
In Segments 3 and 4, which run 70 and 16 miles, respectively, the Corridor would
continue to follow an existing transmission corridor but widen it by an average of 75 feet.
These Segments would extend the NECEC from Wyman Dam southward to a proposed
new converter station on the Merrill Road in Greene. From Greene, the Corridor continues
through three existing substations in Lewiston, before terminating at a proposed new
substation in Pownal.
The existing corridor in these Segments makes a second crossing of the Kennebec
River (at Wyman Dam) and crosses the Carrabassett River and the Sandy River. There are
more than 200 streams and brooks along the Corridor in these two Segments, 84 of which
contain fisheries habitat. Conversion of tree cover for 5.65 acres will impact 9 wading bird
habitats in Segment 3. Conversion of 4.4 acres of cover in Segment 4 will impact 6 vernal
pools.
Segment 5
Segment 5 involves upgrades to 26 miles of an existing transmission line corridor
between the Coopers Mills substation in Windsor, Maine and the Maine Yankee substation
in Wiscasset. This separate corridor passes over but does not touch down in 159 wetlands
and 104 rivers, streams, or brooks, including the Sheepscot River. CMP proposes to clear
roughly 19 acres to widen this corridor. Cover conversion will also occur for some
wetlands/vernal pools.
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Cumulative WOTUS Impacts
Permanent fill impacts for wetlands along the Corridor’s entire run are envisioned
for roughly 82 wetlands. These wetlands would experience partial, not total fill. In addition,
83 vernal pools will be partly, permanently filled. EA at 3. These impacts result in part
from the placement of support structures to carry the transmission line. The Corps states
that 98 support poles (of a total of roughly 1,450) will be placed in wetlands. The footprint
of these structures (e.g., cement fill) would vary between 30 and 195 square feet. Total
permanent wetland fill for all 98 wetland-embedded support structures is less than one-half
acre. Permanent wetland fill associated with the larger structures (the transition stations
and substations) is estimated to be under 5 acres.
The total surface area of land existing in the proposed NECEC Corridor is said to
be 8,600 acres. Of this approximately 1,500 acres (17.4%) constitute waters of the U.S.
(inclusive of wetlands). Total conversion of the forest canopy is said to be in excess of
1,000 acres, but only 111.44 of these acres provide canopy to waters of the United States.
Non-WOTUS Environmental Impacts
In addition to WOTUS impacts, the NECEC Project would impact the human
environment in other ways. The Corps’ EA discusses these impacts as “project elements
… that do not impact navigable or other waters of the U.S.” EA at 4. It is not necessary for
me to cover that ground in this Order because the issue before me is, in part, whether these
other environmental impacts are necessary inputs in the Corps’ assessment of whether its
exercise of permitting authority is a major federal action. If these other impacts are
necessary inputs, one could much more readily second guess the Corps’ EA. Indeed, a
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remand would be necessary given the Corps’ specific indication that it did not include these
other impacts in its finding of no significant impact.
Most obvious here is the fact that Segment 1 involves a new permanent corridor
through western Maine woodlands. Although the Corps opines that the impact is not so
substantial given that the Segment 1 right of way runs through managed timberlands (which
the Corps describes as “heavily managed” “working forests” – EA at 4, 9), a reasonable
person would appreciate the view of the Land Use Planning Commission that impacts on
“scenic and recreational values” will be adverse. Order Granting Certificate of Public
Convenience and Necessity at 6 (ECF No. 19-19). Carey Kish, one of Plaintiffs’ hearing
witnesses, shares my own view that these lands, managed or not, afford a “vast, grand view
scape of mountains and valleys and rivers and streams and lakes and ponds all relatively
undisturbed by human activity, which, while not true wilderness with a capital W, is
nonetheless some of the wildest and remote country not only anywhere in Maine, but in
the northeastern United States.” Declaration of Carey Kish ¶ 14 (ECF No. 18-1) & Hr’g
Testimony. Furthermore, as described by Dr. David Publicover in his declaration (ECF No.
18-10) and hearing testimony, there are many ecological values within the Corridor’s
footprint other than WOTUS values. These include fauna concerns like deer wintering
areas, nesting eagles, and Canada lynx, and flora concerns like small whorled pogonia and
Jack Pine communities.10
10 Agencies reviewing this Project have imposed a host of conditions to mitigate ecological impacts in
Segment 1. For example, CMP must comply with state requirements to substantially reduce cutting in
twelve wildlife areas to preserve some wildlife travel corridors and reduce the negative impact of the
NECEC’s transit through deer wintering areas (DWA). Long-term corridor maintenance practices in these
areas would attempt to foster conifer growth that provide winter cover for deer. At the Moxie Gore crossing,
where the transmission line would pass beneath the Kennebec River, tree cutting adjacent to the Kennebec
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D ISCUSSION
The Corps’ limited its NEPA review of CMP’s CWA and RHA permit applications
to an Environmental Assessment (EA) (ECF No. 19-6 (EA) & 19-13 (Addendum)) that
concluded with a finding of no significant impact (FONSI) (EA at 160 § 12.3). In the
Corps’ view, the FONSI is appropriate because the CWA and RHA components of the
larger NECEC Project will not significantly affect the human environment.
Plaintiffs challenge the FONSI as unreasonable and argue that a project the size and
scope of the NECEC cannot be permitted by the Corps unless and until the Corps prepares
an EIS for the entire Project that describes the environmental impacts holistically and in
detail and subjects the EIS to public review and comment.
The Corps and CMP, on the other hand, argue that Plaintiffs are unreasonably
attempting to make the Corps of Engineers arbiter of all environmental impacts generated
by the NECEC even though it is a private project and the Corps’ jurisdiction is limited to
safeguarding waters of the United States. In their view, the Corps paid greater than
necessary homage to NEPA, but also reasonably concluded that the CWA and RHA
components 	of 	the 	Project 	will 	not 	significantly 	affect 	the 	quality 	of 	the 	human
environment when one considers the cumulative impact of these components on a
watershed scale.
A. Standard of Review
Injunctive relief is “an extraordinary and drastic remedy that is never awarded as of
River is minimized to avoid disrupting the scenic quality of the River in that location. The transition stations
are well set back to not be seen by persons recreating on the River.
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right.” Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st
Cir. 2011) (citations and quotation marks omitted). “To grant a preliminary injunction, a
district court must find the following four elements satisfied: (1) a likelihood of success on
the merits, (2) a likelihood of irreparable harm absent interim relief, (3) a balance of
equities in the plaintiff’s favor, and (4) service of the public interest.” Arborjet, Inc. v.
Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). As the party
seeking injunctive relief, Plaintiffs bear the burden of establishing that the factors weigh in
their favor. Nat’l Org. for Marriage v. Daluz, 654 F.3d 115, 117, 119-20 (1st Cir. 2011).
“Likelihood of success is the main bearing wall of the four-factor framework.”
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). On this
issue “the district court is required only to make an estimation of likelihood of success and
‘need not predict the eventual outcome on the merits with absolute assurance.’” Corp.
Techs., Inc. v. Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (quoting Ross–Simons, 102 F.3d at
16). If the party seeking injunctive relief fails to make a persuasive showing of likelihood
of success, then generally the court acts within its discretion if it denies relief without
addressing the remaining factors. New Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287
F.3d 1, 9 (1st Cir. 2002) (“[I]f the moving party cannot demonstrate that he is likely to
succeed in his quest, the remaining factors become matters of idle curiosity.”). However, a
likely NEPA violation does not automatically call for an injunction if the balance of harms
points the other way. Conservation Law Found., Inc. v. Busey, 79 F.3d 1250, 1272 (1st Cir.
1996). See also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 158 (2010) (“It is
not enough for a court considering a [NEPA] request for injunctive relief to ask whether
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there is a good reason why an injunction should not issue; rather, a court must determine
that an injunction should issue under the traditional four-factor test ….”).
Plaintiffs’ ability to demonstrate a likelihood of success depends on their ability to
demonstrate that the Corps’ FONSI was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When reviewing an agency’s
NEPA compliance under the Administrative Procedures Act, my “only task is to determine
whether the [agency] has considered the relevant factors and articulated a rational
connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v.
NRDC, 462 U.S. 87, 105 (1983) (citations omitted). To uphold challenged agency action,
I must be satisfied that the Corps fulfilled its procedural duties under NEPA and gave “good
faith consideration to the environmental consequences of its actions,” but I “should not
pass judgment on the balance struck by the agency among competing concerns.” Grazing
Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) (Coffin, J.).
“While this is a highly deferential standard of review, it is not a rubber stamp.”
Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1285 (1st Cir. 1996) (quoting Citizens
Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 290 (1st
Cir.1995)). In the final analysis, the decision must make sense, and only through careful
review of the record can I “ensure that agency decisions are founded on a reasoned
evaluation of the relevant factors.” Marsh v. Oregon Natural Resources Council, 490 U.S.
360, 378 (1989). I am not empowered to substitute my judgment for that of the Corps. 11
11 My personal opinion on the Project is, of course, utterly immaterial to the decision. Vermont Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“Administrative decisions
should be set aside in this context, as in every other, only for substantial procedural or substantive reasons
as mandated by statute, not simply because the court is unhappy with the result reached.”).
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Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
If the record reveals it likely that the Corps paid heed to NEPA’s procedural dictates,
considered the relevant factors, and adequately explained its rationale, and did not clearly
err in its judgment, then I should deny Plaintiffs’ motion for a preliminary injunction. Id;
Penobscot Air Servs., 164 F.3d at 719 n.3; Grazing Fields, 626 F.2d at 1072.
B. Analysis
1. 	Likelihood of Success
The merits issues before me for preliminary estimation are whether the Corps
abused its discretion when it declined to weigh every environmental impact of the entire
NECEC in its EA/FONSI and, if not, whether the Corps abused its discretion when it
determined that the cumulative impacts to WOTUS do not cross the significance threshold
that would require preparation of and EIS. Unless Plaintiffs can demonstrate likelihood of
success on one of these issues their request for a preliminary injunction should be denied.
Before addressing these core issues, I will address two ancillary issues Plaintiffs raised in
their Motion for Preliminary Injunction: (a) that the Corps arbitrarily removed a special
condition that forestalled construction activity pending the Department of Energy’s
approval of the border connection and (b) that the Corps needed to provide its EA to the
public and allow 30 days for comment. I will then consider the central argument in terms
of (c) the Corps’ decision to limit the scope of its review to WOTUS impacts and (d) the
reasonableness of its FONSI given that narrow scope of review.
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a. 	Special Condition 3
Plaintiffs assert that the Corps’ removal of Special Condition 3 was arbitrary and
capricious. Special Condition 3 of the initial proffered permit stated work could not begin
until CMP obtained a presidential permit from the Department of Energy. Plaintiffs argue
the Corps owes an explanation why it withdrew Special Condition 3 following CMP’s letter
response to the initial proffered permit. Motion at 30-32.
The Corps keeps a regulation to “guide” determinations about the “timing of
processing of applications.” 33 C.F.R. § 325.2(d). The relevant guidance states: “Permits
granted prior to other (non-prerequisite) authorizations by other agencies should, where
appropriate, be conditioned in such manner as to give those other authorities an opportunity
to undertake their review without the applicant biasing such review by making substantial
resource commitments on the basis of the DA permit.” Id. § 325.2(d)(4).
In the EA Addendum, the Corps explained that the condition was “not necessary to
satisfy the public interest requirement and not directly related to the aquatic resource
impacts evaluated as part of the Corps review.” EA Addendum at 1. That is an explanation
concerning a discretionary exercise of permitting authority. Moreover, the regulation is
advisory, not mandatory. I am not persuaded that it is appropriate for me to overrule the
Corps’ exercise of permitting discretion in this regard.
Plaintiffs’ argument appears, in part, to presume that it is the legal obligation of
some federal agency to produce an EIS for the entire private NECEC Project before CMP
can start work. At least as of this stage of the proceedings, they have not persuaded me that
NEPA requires the DOE to produce an EIS of the entire Project, or that the Corps cannot
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authorize CMP to take actions that impact WOTUS pending DOE’s review of the border-
crossing connection. In their Reply, Plaintiffs also suggest that DOE’s review of the
application for a presidential permit will turn in some way on DOE’s consideration of
aquatic resources, but they do not elaborate on this contention and it is not evident why
that would be the case. Given that Plaintiffs bear the burden of persuasion on the Motion,
and given Plaintiffs’ failure to make a persuasive presentation in that regard, I decline to
enjoin work on the Project pending DOE’s issuance of a presidential permit allowing
connection at the border.
b. 	Further Public Comment
Plaintiffs also argue a preliminary injunction is needed to protect the public’s
interest in commenting on the EA itself. Motion at 29-30. The Council on Environmental
Quality (CEQ) has stated that a federal agency reviewing a project that integrates
mitigation measures can rely on the mitigation measures in support of a FONSI, but
“should” then make the FONSI available for public comment before issuing a permit. Forty
Most 	Asked 	Questions 	Concerning 	CEQ’s 	National 	Environmental 	Policy 	Act
Regulations, 46 Fed. Reg. 18026, 18038 (Mar. 23, 1981). In contrast to the CEQ’s FAQ
document, its NEPA regulations call upon agencies to “involve” the public “to the extent
practicable,” 40 C.F.R. § 1501.4(b) (2018), to make a FONSI “available to the affected
public as specified in § 1506.6” (a FOIA provision – not an affirmative disclosure
obligation), id. § 1501.4(e) (2018); to give the public notice of NEPA-related hearings and
public meetings, which hearings and meetings should be held “whenever appropriate or in
accordance with statutory requirements applicable to the agency,” id. § 1506.6(b), (c)
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(2018); and to make findings “available to the public pursuant to the provisions of the
Freedom of Information Act, id. § 1506.6(f) (2018). Only when a FONSI addresses
proposed action that would ordinarily require an EIS or is “without precedent” must the
agency allow the public 30 days for review of and comment on a FONSI. Id. § 1501.4(e)(2)
(2018).
I do not believe that the CEQ’s public comment regulations support a preliminary
injunction. After all, the Corps did provide public notice and held a public hearing as part
of its EA review process. The Corps’ public hearing complemented other public hearings
associated with the Project but overseen by other agencies. Before I would countermand
the judgment of the Corps that a 30-day period for public review and comment concerning
the EA would not be practicable, I would expect Plaintiffs to identify some critical
deficiency in the information available to the public as of the date of the public hearing.
Yet Plaintiffs have not demonstrated that the materials that were available for the public
hearing were critically deficient in some regard and that the deficiency would have been
remedied had the Corps allowed for the public to review and comment on its EA
draftsmanship. Furthermore, to the extent Plaintiffs rely on the CEQ’s FAQ, the FAQ is
not mandatory.
Although I might have exercised discretion differently, I am not persuaded that the
law compels the Corps to publish its draft and allow 30 days for public feedback. Plaintiffs
lean heavily on the FAQ document, which document likely amounts to an interpretive rule
lacking the force of law, New Hampshire Hosp. Ass’n v. Azar, 887 F.3d 62, 70 (1st Cir.
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2018), but which is, more importantly, stated in advisory rather than mandatory terms.12
Because it is not clear that any applicable regulation mandates a different approach than
what happened before the agency, it is not readily apparent to me that there is a good and
valid reason, let alone an adequate hearing record, for me to substitute my own judgment
about the practicable extent of public involvement, unless I am persuaded that the Corps’
FONSI likely was erroneous and that an EIS is needed.13
c. 	Scope of Review
Plaintiffs argue they must merely show that the Corps’ determination that a roughly
200-mile 	transmission 	corridor 	that 	cuts 	a 	new, 	53-mile 	permanent 	path 	through
undeveloped timberlands, cuts through deer yards, bores a hole underneath the Kennebec
River, constructs new terminal stations on either side of the Kennebec River, encumbers
the artistry of the existing Appalachian Trail crossing, widens by on average 75 feet the
remaining 147 miles of corridor, and constructs two new substations affects the human
environment in a significant way. When it’s put like that, the answer seems obvious.
However, the fulcrum upon which the Corps’ EA pivots is the idea that the Corps
does not have to exercise NEPA review beyond the limited scope of the clean water
12 Plaintiffs also cite Sierra Club v. Wagner, where the Court of Appeals stated: “An agency that adopts a
FONSI without seeking input can be expected at least to accept comments before acting on the merits of a
decision[.]”555 F.3d 21, 31 (1st Cir. 2009). In Wagner, the Forest Service circulated for public review
drafts EAs that evidently did not include the agency’s FONSIs. The Court of Appeals did not find that to
be a cause for concern. Here, the Corps sought public input through its public hearing process. Having done
so, the expectations established in Wagner is not on point.
13 During the briefing cycle, Plaintiffs brought to my attention the fact that EPA took issue with the timing
of the Corps’ public notice and thought the Corps should issue another notice after consolidating and
organizing the available information that was then existing in part with Maine DEP and in part with the
Corps. See Apr. 25, 2019 EPA Region 1 Letter to USACE re. Public Notice at 3 (ECF No. 39-1). However,
the Corps did not conduct its public hearing until December and I lack the ability on the current record and
briefing to assess the adequacy of the information available to the public by the December timeframe.
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interests that make it a federal permitting authority for this project. This position is clearly
stated in the EA:
Many 	public 	comments 	expressed 	concerns 	about 	forest 	and 	habitat
fragmentation, especially in Segment 1. As noted above, the USACE’s
jurisdiction and the scope of USACE NEPA analysis is limited to the
proposed impacts to waters of the U.S. and the immediately surrounding
uplands to facilitate the regulated work. Upland forest fragmentation is
outside the scope of this EA.
EA at 51.
The Supreme Court instructs that “courts must look to the underlying policies or
legislative intent in order to draw a manageable line between those causal changes that may
make an actor responsible for an effect and those that do not.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 767 (2004) (quoting Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 774 & n. 7 (1983)). In Public Citizen, the Court observed that an
agency’s NEPA responsibility to account for environmental effects should be a function of
the agency’s “authority to prevent the effect.” Id. The ability of a party to make a “but for”
argument “is insufficient to make an agency responsible for a particular effect.” Id.
Whether the exercise of permitting authority over part of a project will impose
NEPA procedural responsibility for other parts or for an entire project involves “policy
considerations” related to the legal responsibility of administrative agencies. Id. It also
requires consideration of whether the additional procedural burden is useful to the process
of determining whether to issue the permit. Id. My own reflection on these cautionary
words suggests to me that because it is doubtful that the Corps has the final authority and
responsibility to decide whether or not a transmission line project can run through Maine’s
western mountain region and the non-wetland values present in it, it is unreasonable to
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expect the Corps to prepare an EIS for all regional impacts associated with the Project.
Instead, we must expect the Corps to evaluate the Project in terms of its impacts on
WOTUS.
Of course, the Corps’ EA discusses at some length environmental impacts beyond
those associated with the Corps preliminary “limited jurisdiction” statement. That begs the
question 	whether 	the 	discussion 	of 	so 	many 	environmental 	concerns 	is 	a 	tacit
acknowledgement of a proximate connection between the Corps’ regulatory oversight of
WOTUS and the wider regional environmental impacts of the completed Project. As of
this writing, I think the answer is likely to be no. Although it may be odd that the Corps
would adorn its EA with the discussion of impacts it would not place on the EA/EIS scale,
it is not unlawful for it to do so. There is no harm in producing a document that serves the
witness-bearing procedural interests that inform the NEPA-review process. Moreover, the
Corps’ acknowledgment of these other environmental concerns strikes me as a perfectly
reasonable response to public commentary, including commentary by organizations like
Plaintiffs. For it now to be used as a forensic clue of the Corps’ capriciousness seems
especially rich. Public comments thoroughly addressed the wider implications of the
overall project. Having conducted a public hearing and having elicited this information, it
would have been solipsistic of the Corps to ignore the public’s wider concerns altogether.14
14 The Corps’ announcement of public hearing advised interested persons:
The decision whether to issue a permit will be based on an evaluation of the probable
impact of the proposed activity on the public interest. That decision will reflect the national
concern for both protection and utilization of important resources. The benefit, which may
reasonably accrue from the proposal, must be balanced against its reasonably foreseeable
detriments. All factors which may be relevant to the proposal will be considered, including
the cumulative effects thereof; among those are: conservation, economics, aesthetics,
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In short, the fact that the Corps expanded its EA to acknowledge regional impacts, the work
of state regulatory agencies related to these concerns, and mitigation and compensation
beyond the Corps’ own WOTUS mitigation and compensation requirements,15 does not
prove that the EA fails to set forth a concise assessment of WOTUS impacts in its pages.
NEPA is a process statute for the environment. Sierra Club v. Marsh, 872 F.2d 497,
502 (1st Cir. 1989). How much of a process is required to shepherd stakeholders through
the review of a permit-application depends on the circumstances of the proposed action,
but it is not unlawful to give more process or more consideration than necessary.16 And
where the Corps must evaluate whether components of a major private undertaking are
major in terms of their impact on WOTUS, there is no procedural harm in taking stock of
general environmental concerns, wetlands, cultural value, fish and wildlife values, flood
hazards, flood plain value, land use, navigation, shoreline erosion and accretion, recreation,
water supply and conservation, water quality, energy needs, safety, food production and,
in general, the needs and welfare of the people.
Announcement of Public Hearing at 2 (ECF No. 31-3).
15 The following mitigation/compensation measures are highlighted in the Corps’ EA:
To specifically address USACE requirements as they relate to unavoidable direct and
indirect 	impacts 	to 	aquatic 	resources, 	the 	applicant 	has 	proposed 	to 	contribute
$3,046,648.37 to Maine’s In Lieu Fee Program (ILF), the Maine Natural Resources
Conservation Program, and preserve approximately 1022.4 acres of land on three parcels
containing a total of 510.75 acres of wetland, 3.95 miles of streams, 16 vernal pools, 75
acres of state mapped Inland Wading Bird and Waterfowl habitat, and 511.65 acres of
upland buffer.
EA at 24. These measures in part imposed on and in part assumed by CMP exceed the Corps’ regulatory
requirements by a considerable margin. EA at 24-34 § 1.3.2.
16 See, e.g., Wagner, 555 F.3d at 30-31 (“The Forest Service did no EIS but also did not brush off
environmental concerns. Its EAs are lengthy by any standard (appendices aside, the Than EA is 194 pages
and the Batchelder EA is 146 pages) addressing in detail the environmental concerns that might arise before
concluding that, as subject to intended mitigation, the impacts were not significant. The substantive
decisions thus did not ignore the possible environmental effects. … Possibly little was saved by doing EAs
of this character instead of EISs, but it is not clear that anything was lost.”).
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the wider pickerel-versus-paycheck tradeoffs involved in the larger private action. For
these reasons, I do not view – at least not at this juncture – the Corps’ more wide-ranging
discussion of environmental impacts in the EA as a logical contradiction, let alone a
concession, of the Corp’s preliminary jurisdictional statement that, in the final analysis, it
would limit its EA to WOTUS impacts.17
NEPA required the Corps to consider the “environmental impact of the proposed
action.” 42 U.S.C. § 4332(C)(i). From the Corps’ perspective, the “proposed action” is to
temporarily and permanently fill certain wetlands, clear or convert cover provided to
WOTUS by forest canopy, and drill a tunnel beneath the Kennebec River. “To determine
whether [NEPA] requires consideration of a particular effect, [I] must look at the
relationship between that effect and the change in the physical environment caused by the
[proposed] action at issue.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S.
766, 773 (1983). Moreover, I must remain mindful that “[t]he scope of the agency’s
inquiries must remain manageable if NEPA’s goal of ‘ensur[ing] a fully informed and well
considered decision’ is to be accomplished.” Metro. Edison Co., 460 U.S. at 776 (quoting
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978)).
The Corps’ regulations state that when the Corps is required to assess under NEPA
the appropriateness of a permit for “one component of a larger project,” it need address
only “the impacts of the specific activity requiring a … permit and those portions of the
entire project over which the district engineer has sufficient control and responsibility to
17 The Corps may be required to consider other concerns such as endangered species and historic properties,
as is reflected in the Corps’ EA for the NECEC. Plaintiffs have not demonstrated that the Corps’ handling
of these concerns warrants vacatur of the Corps’ EA.
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warrant Federal review.” 33 C.F.R. Pt. 325, App’x B, § 7(b)(1). The regulations further
state that the Corps has “sufficient control and responsibility” to warrant review of a project
as a whole, rather than just the specific activity requiring a Corps permit, when “the
environmental consequences of the larger project are essentially products of the Corps
permit action.” Id. § 7(b)(2). In other words, as envisioned by the Corps, its control and
responsibility are circumscribed by its jurisdictional authority, unless federal involvement
“is sufficient to turn an essentially private action into a Federal action,” by which the Corps
means “cases where the environmental consequences of the larger project are essentially
products of the Corps permit action.” Id. § 7(b)(2).
Nothing in the language Congress employed in NEPA precludes the Corps’
placement of a jurisdictional limitation on its review of private projects under NEPA. To
the extent Plaintiffs challenge the logic of the restriction, it strikes me at this initial stage
of the litigation that the restriction is permissible given the deference owed to agency
expertise, the reasonableness of the Corps’ desire to calibrate its NEPA involvement to the
scope of its jurisdictional power, and statements by the Supreme Court and the First Circuit
Court of Appeals that such a restriction is appropriate from a purely legal perspective. Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 665 (2007); Metro. Edison Co.,
460 U.S. at 776; Mayaguezanos, 198 F.3d at 302.
As for the merits of the Corps’ application of the regulatory guidance, discussed
below, I am at this stage required only to estimate Plaintiffs’ likelihood of success, not to
resolve the merits in a conclusory fashion. Harnett, 731 F.3d at 10. Based on my
preliminary review of the regulations, Plaintiffs have not persuaded me that they likely will
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succeed in proving that the Project is a major federal action consisting of the full-blown
NECEC Project such that all environmental impacts that can be identified by their members
and the interested public must be addressed by the Corps through an EIS. Rather, my initial
impression is that Plaintiffs’ position relies heavily on but-for causation rather than a
pragmatic assessment of the Corps’ purpose and function. Pub. Citizen, 541 U.S. at 767.
The major-federal-action regulatory thicket is comprised of a variety of factors.
Based on my review of the EA, I am persuaded at this juncture that the Corps gave each of
its regulatory factors (in particular the scoping factors of 33 C.F.R. Part 325, Appendix B,
and intensity factors of 40 C.F.R. § 1508.27 (2018)) due consideration and reasonably
exercised judgment on the appropriate application of the same. EA at 160-62 § 12.3.18 I
will touch on some of these factors now, but it is not my intention to finally determine these
issues once and for all. This is review of a preliminary injunction, not a motion for final
judgment on the administrative record.
i. 	Whether the regulated activity comprises “merely a link” in a
corridor type project (e.g. a transportation or utility transmission
project).
Plaintiffs argue, not unreasonably, that the Corps’ jurisdictional concern with
wetlands could be considered more than a mere link, given that the transmission lines
18 Plaintiffs argue the project is federal given the requirement that the Department of Energy authorize the
border connection. I do not see how DOE’s oversight of the border connection compels the Corps to expand
its NEPA review of CWA/RHA permit applications to every externality of the overall project. Plaintiffs
also point to the fact that the Corps, DOE, and other federal agencies were signatories to a Historic
Properties Memorandum of Agreement related to the NECEC (ECF No. 31-18). Again, it does not follow
that the Corps’ participation in historic property proceedings compels an all-encompassing NEPA-EIS
review by the Corps. In any event, the Corps acknowledged the historical property concern in its EA. EA
at 106 § 6.4.3.
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would be suspended over a substantial acreage of waters. However, the Corps also offers
a reasonable assessment: that the wetland impacts can be localized to separate and distinct
impacts comprising roughly 1.9% of the total corridor.19 EA at 37. The Corps’ perspective
may be debatable, but it does not strike me as arbitrary and capricious. EA at 37.
ii. Whether there are aspects of the upland facility in the immediate
vicinity 	of 	the 	regulated 	activity 	which 	affect 	the 	location 	and
configuration of the regulated activity
Plaintiffs observe that the Corps considered an alternative proposal to have the
supports in Segment 1 zig-zag through the 300-foot right of way to reduce impact on
wetlands. The Corps did not think this approach would be advantageous to wetlands and
rejected the idea. EA at 94. It seems to me that this kind of consideration would not
normally require the Corps to expand its assessment of significance to encompass non-
WOTUS impacts. See also EA at 37-38.
iii. The extent to which the entire project will be within Corps jurisdiction
Plaintiffs again emphasize that WOTUS are “spaced throughout the corridor” and
are roughly 17% of its footprint. Motion at 15 (quoting EA at 37). This is a fair
consideration, but it is not compelling. My initial impression is that the Corps did not act
in an arbitrary fashion when it discussed cumulative impacts to wetlands, inclusive of
19 According to the Corps:
Jurisdictional wetland impacts consist of 4.72 acres of permanent fill at two new
converter/substations and one HDD termination station, 0.15 acres of permanent fill for
pole structures, 47.64 acres of temporary fill, and 111.55 acres of forested wetlands
affected by clearing and conversion to scrub-shrub and emergent cover types. Thus, only
164.06 of the project’s approximately 8,600 acres are within USACE jurisdiction
(approximately 1.9%).
EA at 38.
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temporary fills and cover conversion, yet found them inadequate for the Corps to assume
NEPA responsibility for the entire Project. EA at 38-39.
Plaintiffs flag a statement in the Corps’ Appendix B that offers an example of how
to assess a transmission line project. The entire example reads as follows:
For example, a 50–mile electrical transmission cable crossing a 1 1/4 mile
wide river that is a navigable water of the United States requires a DA permit.
Neither the origin and destination of the cable nor its route to and from the
navigable water, except as the route applies to the location and configuration
of the crossing, are within the control or responsibility of the Corps of
Engineers. Those matters would not be included in the scope of analysis
which, in this case, would address the impacts of the specific cable crossing.
Conversely, for those activities that require a DA permit for a major portion
of a transportation or utility transmission project, so that the Corps permit
bears upon the origin and destination as well as the route of the project
outside the Corps regulatory boundaries, the scope of analysis should include
those portions of the project outside the boundaries of the Corps section
10/404 regulatory jurisdiction. To use the same example, if 30 miles of the
50–mile transmission line crossed wetlands or other “waters of the United
States,” the scope of analysis should reflect impacts of the whole 50–mile
transmission line.
33 C.F.R. Pt. 325, App’x B, § 7(b)(3). In Plaintiffs’ view, the NECEC is the transmission
line suggested by the second example and, therefore, the Corps’s NEPA review should
treat the entire Project as one major federal action.
To advance the argument, Plaintiffs draw on the total area of WOTUS existing in
Segments 1 through 4, although Segments 2 through 4 involve expansion of a preexisting
corridor and do not fit neatly within the example. Plaintiffs’ argument would be stronger if
they showed that Segment 1 fits the second example, but they would still be faced with the
fact that the example is written in advisory rather than mandatory terms.
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The EA does not include a discussion of the transmission line examples in Appendix
B. However, the Corps does reference certain proposed-action acreage figures to support
its conclusion that wetland impacts are not considerable enough to bring the entire Project
into its jurisdiction. In particular, the Corps references 5 acres of permanent fill, 48 acres
or temporary fill, and 112 acres of cover conversion. These, we are told, are less than 2%
of the total acreage impacted. The numbers do not appear to encompass WOTUS cross-
over, as in the example, but they still suggest something other than an arbitrary and
capricious exercise of regulatory judgment.20
iv. The extent of cumulative Federal control and responsibility
The Corps is not the only federal agency with authority over components of the
NECEC Project. Plaintiffs think the Project should be federalized for this reason. I am not
persuaded 	that 	the 	involvement 	of 	the 	DOE 	and 	the 	Federal 	Energy 	Regulatory
Commission with distinct project concerns, one with the border connection, the other with
utility regulation, transforms the private NECEC Project into a major federal project for
purposes of NEPA. Based on the current briefing of the legal issue, I cannot say that the
Corps abused its discretion or violated federal law when it reasoned that these “authorities
are separate and independent” and that “[t]he scope of review for the Corps waters of the
US [sic] does not overlap with the DOE review of the border crossing [or] with the
operational review of the FERC.” EA at 39.
20 An EPA letter in the record references removal of “11 linear miles of riparian vegetation adjacent to …
aquatic resources.” Apr. 25, 2019 EPA Region 1 Letter to USACE re. public notice at 4 (ECF No. 39-1).
Presumably that is project-wide, but even if it concerned only Segment 1, it would be shy of the 30:50 ratio
used in Appendix B’s second transmission line example.
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v. 	CEQ context and intensity factors
The CEQ offers a listing of factors that can suggest the existence of a major federal
action in need of an EIS, which factors “should be considered.” 33 C.F.R. § 1508.27(b).
The Corps explained:
Under the Council on Environmental Quality (“CEQ”) NEPA regulations,
“NEPA significance” is a concept dependent upon context and intensity (40
C.F.R. § 1508.27). When considering impacts to waters of the US on a linear
transmission project like the current proposal, significance is measured by
the impacts felt at a local scale, as opposed to a regional or nationwide
context.
EA at 161-62 § 12.3.
Plaintiffs argue the context and intensity factors “nearly all … weigh in favor of an
EIS.” Motion at 21. Plaintiffs then argue the factors from the perspective of impacts
associated with the entire NECEC Project, even to the extent of challenging assumptions
about the likelihood that the NECEC Project will reduce greenhouse gas emissions, but
they principally focus on the ecological and scenic impact of Segment 1. I am not persuaded
by Plaintiffs that the Corps’ WOTUS-focused discussion of these factors was arbitrary and
capricious, abusive of discretion, or a violation of law. Nor, at this stage, am I persuaded
that the Corps’ decision to permit HDD, wetland cover conversion, and temporary and
permanent fill makes it the NEPA shepherd of the entire regional impact of the fully
installed Project, rather than the permitted actions.
vi. Stewart v. Potts
Plaintiffs argue the circumstances of this case are like the circumstances in Stewart
v. Potts, 996 F. Supp. 668 (S.D. Tex. 1996), in which case the district court rejected the
Corps’ assessment that its jurisdiction did not extend to upland forest fragmentation. In
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Stewart, a municipality sought to develop a golf course on a 200-acre forested parcel and,
after redesign efforts to avoid filling wetlands, arrived at a proposal that would directly
impact with fill only two acres of the wetlands, but also clear or thin the surrounding forest
that sheltered other wetlands scattered throughout the forest. Id. at 673, 682. Additionally,
the EPA characterized the forest as a “floodplain forest” and both it and the FWS found
that development of the surrounding forest would impose “considerable” indirect adverse
impacts on area wetlands and neotropical migratory birds. Id. In this factual context, the
court found arbitrary the Corps’ refusal to exercise NEPA jurisdiction over forest clearing
that would impact the wetlands and migratory birds that depend on them. Clearly, the court
reasoned, concentrated denuding (“clearing 115 acres”) of a 200-acre forested parcel would
impact the scattered wetlands in the same 200-acre footprint quite intensively. Id. at 682-
83.
Plaintiffs’ attempt to cast this case in the image of Stewart is unpersuasive. The
NECEC entails linear development. At 150 feet wide, 115 acres of forest impacts would
be spread out along more than six miles of Corridor and the surrounding forest in Segment
1 (the segment that Plaintiffs focus on for purposes of their fragmentation argument) would
continue to shelter the scattered wetlands over which the Corridor passes. That is quite
unlike the situation in Stewart, where the development project involved clearing 115 of
200 acres sheltering wetlands.
d. 	The Corps’ watershed FONSI
Turning the focus from the forest to the waters, what remains for consideration is
whether the Corps’ EA/FONSI makes sense from a WOTUS perspective. Drawing on
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Ninth Circuit precedent, Plaintiffs best argument, as I see it, is that the Corps’ EA is
deficient because it gives insufficient attention to “baseline” conditions. Motion at 16-18,
28-29; Reply at 8-10. This is a sound concept that warrants consideration. However, an EA
is not an EIS, and the baseline concept effectively could require an EIS in most cases if
taken to the extreme. Additionally, I cannot lightly dismiss the notion that the Corps
exercised expertise in assessing the relative significance of the proposed WOTUS impacts.
To be victorious in this action, Plaintiffs must convince me that the Corps’s FONSI is
unreasonable or nonsensical in relation to the significance of impacts to WOTUS. They do
not need to prove it conclusively at this stage of the proceedings; nevertheless, even in the
context of a preliminary injunction motion the burden rests squarely on their shoulders.
After very careful consideration of Plaintiffs’ preliminary injunction presentation, I
conclude that they have not carried their burden.
When it comes to discussing watershed impacts, the Corps’ baseline portrayal of
WOTUS values is cast in broad brush strokes. EA section 1.2 states the proposed activity
impacts “multiple locations of aquatic resources” inside the NECEC’s footprint. EA at 1-
2. It then describes the following “jurisdictional” impacts.
A total of 4.87 acres of jurisdictional wetlands will be permanently impacted
and 47.64 acres will be temporarily impacted. Permanent fills are limited in
size and are at separate and distinct locations along the corridor, and include
minor fills for substation construction or limited pole placement in wetlands
(ranging from approximately 30 to 195 square feet of fill per structure). An
additional 111.55 acres of forested wetlands will be affected by clearing and
conversion to scrub-shrub and emergent cover types. This area for total
wetlands converted includes 105.25 acres of forested wetland, 3.678 acres of
forested wetland habitat proximate to vernal pools, and 2.622 forested
wetland associated with state mapped Inland Waterfowl & Wading Bird
Habitat (IWWH).
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Id. at 2-3.21 The Corps explains that it is important to its assessment that these impacts to
WOTUS are but a small percentage of a very large project. Id. at 3. This logic is repeated
in the Corps’ briefing of the preliminary injunction motion. The idea seems to be that the
Corps’ jurisdictional components of a project become less significant as the project
increases in scale. That is false logic. But like Plaintiffs, the Corps is so obsessed with
whether the regulations make it permitting authority for the entire Project that it tends to
hammer away at that issue every chance it gets. Jurisdictional impacts can be significant
impacts even if they are a small subset of a very large project.
The 	Corps 	also 	described 	the 	following 	WOTUS-specific 	considerations. 	In
Segment 1, cover conversion will occur for 8.24 acres of forest, which will become a scrub-
shrub or “emergent habitat type” impacting 110 vernal pools. There will be 0.26 acre of
permanent fill to access one of the new transition stations for the subterranean crossing of
the Kennebec River. Beneath the proposed line in Segment 1 are 223 rivers, streams, or
brooks providing habitat to coldwater fisheries and six inland waterfowl and wading bird
habitats (IWWH). In Segment 2, cover conversion will occur for 1.13 acres impacting two
IWWH and 18 vernal pools. In Segment 3, cover conversion will occur for 5.65 acres
impacting nine IWWH, plus 381 vernal pools. There are 84 rivers, streams, or brooks with
coldwater fisheries, in which all woody vegetation would be cleared and non-capable
woody vegetation would be allowed to regrow to a height of 10 feet. In Segment 4, cover
conversion will occur for 4.4 acres impacting 6 vernal pools and there will be 0.03 acre of
21 The Corps also observes that there are many aerial crossings of WOTUS, and it finds these not to be
significant because they do “not include impacts to waters.” Id. at 4.
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permanent wetland fill. In Segment 5, cover conversion will impact 11 vernal pools and
there will be 0.04 acre of wetland fill. Finally, the Merrill Road Converter Station
improvements involve 3.16 acres of permanent wetland fill, including 0.273 acres of fill in
vernal pool habitat, and the Fickett Road Substation improvements involve 1.33 acres of
permanent wetland fill.
Concerning wetlands project-wide, the Corps found it significant that 1332 wetlands
were avoided out of a total of 1404, but recognized that in addition to direct impacts to 72
wetlands, other wetlands would be impacted indirectly by the “removal of capable species
… result[ing] in long-term conversion of wetland habitat type from forested to scrub-shrub
and/or emergent.” EA at 10.
Concerning vegetation practices, the Corps says CMP has committed to not using
herbicide in Segment 1 to “minimize impacts, particularly to high value brook trout
resources.” Id.
Concerning 	watercourses, 	the 	Corps 	acknowledges 	that 	cutting 	the 	Corridor
involves many potential impacts but also recognizes that the work is subject to several
conditions and restrictions designed to soften the impact:
Potential indirect impacts include sedimentation and turbidity, introduction
of pollutants, and locally increased stream insolation (exposure to sunlight,
increased 	temperature, 	and 	diminished 	woody 	debris 	contributions)
associated with the clearing. Direct and indirect impacts are anticipated from
future actions associated with implementation of their Culvert Replacement
Plan, a mitigation requirement of the Maine DEP to enhance fisheries habitat.
Based on USACE review of similar private, municipal, and state installations
throughout the state however, these impacts are generally minimal compared
to the long-term benefit achieved.
Potential sedimentation associated with soil disturbance from equipment use
and vehicle access proximate to streams can result in temporary short-term
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impacts to fishery resources. Sedimentation can result in reduced light
penetration, 	smothering 	of 	aquatic 	feeding 	and 	spawning 	areas, 	and
impairment of aquatic respiration. Sedimentation can also impact the quality
of coldwater fish habitat in waterbodies by burying higher value substrates,
reducing habitat complexity, and altering stream channels. To avoid these
impacts, 	CMP 	will 	implement 	its 	Environmental 	Guidelines 	during
construction to minimize the potential for sedimentation and to protect
fishery resources. CMP’s Environmental Guidelines include detailed erosion
and sedimentation control measures, resource identification procedures,
access road and 	equipment travel impact 	minimization measures, and
restoration and stabilization measures that will minimize the potential for
impacts to waterbody resources. Implementation of the provisions of these
Guidelines will be included as a condition of any permit.
Increased sun exposure on smaller waterbodies due to transmission line tree
clearing can result in a negative impact due to an increase in water
temperature, which can pose problems for coldwater fisheries. Tree clearing
has been minimized by co-locating new lines in existing transmission line
corridors where practicable and on segments requiring widening, minimizing
clearing to only the width necessary to construct and safely operate the
facilities. The waterbody crossing table located the administrative record
identifies the amount of additional clearing width required within each
respective corridor, if applicable.
To minimize any potential for negative impacts to stream habitat and
fisheries from vegetative clearing, CMP proposes to allow vegetation to
remain in place to the extent practicable and install appropriate sedimentation
controls. Furthermore, all waterbody crossings will be spanned by the
NECEC transmission line, and no work will take place within stream
channels during construction. No new poles will be installed within 25 feet
of these waterbodies, and only minimal tree removal is proposed in these
stream buffer areas. All capable species will be removed from the stream
buffer during initial clearing for construction. Vegetation maintenance,
conducted on a 4-year cycle, in the stream buffer areas will consist of cutting
back to ground level, all woody vegetation over 10 feet in height, whether
capable or non-capable within that portion of the 25-foot stream buffer within
the wire zone (i.e., that area within 15 feet, horizontally, of any conductor).
Only capable species will be removed outside of the wire zone during
vegetation maintenance activities. Otherwise, stream side vegetation will not
be disturbed during construction or during future maintenance activities and
the 	buffer 	will 	continue 	to 	function 	in 	a 	similar 	manner 	as 	before
construction. Future maintenance activities in these areas will consist of hand
removal of those capable species that are likely to encroach on the conductor
safety zone within the next 4 years1. Herbicides will not be used within the
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stream buffers, within 25 feet of standing water or along any portion of
Segment 1. Stream buffers are described in more detail in the NECEC
Vegetation Clearing Plan (VCP) and Vegetation Maintenance Plan (VMP)
contained in the administrative record.
EA at 11-13.
Concerning vernal pools, the Corps begins by emphasizing the number of vernal
pools (757) in the Corridor that are avoided in terms of permanent fill over the 83 that will
be partially filled. As for the more expansive impact of cutting activity and cover
conversion, the Corps states:
However, recognizing that many vernal pools are part of a larger wetland
system and that important habitat/water quality contributions are served by
the surrounding vernal pool envelope, and in order to be consistent with the
state permitting authority, the applicant calculated impacts to the vernal pool
depressions and the 100' envelope. The applicant also based the mitigation
plan using the same methodology. In instances where a pool’s surrounding
habitat spans the entire width of the corridor; impacts associated with
equipment access will be minimized by utilizing temporary timber mats to
reduce disturbance. For vernal pools that will be spanned by electric
conductors, there is still the potential for limited indirect impacts through
conversion of minor amounts of adjacent forested uplands and wetlands. The
potential for these indirect impacts is minimal since the transmission line
corridor will be maintained in a well vegetated state, and only a small
proportion of the forested area around any of these pools will be removed for
the proposed transmission line corridor. There should still be ample foraging
and overwintering habitat available and the pools themselves are expected to
remain productive for the most part. Temporary impacts to adjacent wetlands
can occur from equipment travel along the transmission line corridor. These
impacts will be minimized by working during frozen conditions (outside the
breeding season) or by employing other techniques to minimize impacts.
Disturbed areas within the surrounding habitat of vernal pools will be
stabilized and restored as soon as practicable.
EA at 14. The Corps also observes that CMP will adhere to operational practices consistent
with state and federal vernal pool habitat management guidelines and will execute “a
detailed Compensation Plan.” Id. at 14-15.
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The Corps also addresses concern for “potential Atlantic salmon habitat” existing
in “various waterbodies crossed by the Project.” Id. at 16. These areas are identified in
maps in the administrative record and they are supposed to receive the least impactful
clearing/cutting activity. To get a sense of the impact, and the Corps’ considered the
following:
Potential Atlantic salmon habitat occurs within various waterbodies crossed
by the Project. The Project will have no direct impact on Atlantic salmon
habitat. However, potential indirect impacts to this species include increased
stream insolation due to tree removal, sedimentation and turbidity, and the
introduction of pollutants from construction-related activities. To minimize
these indirect impacts during clearing, riparian buffers will be flagged prior
to clearing, a 100-foot buffer will be established for these waterbodies, and
these buffers will be cleared in accordance with the NECEC Plan for
Protection of Sensitive Natural Resources During Initial Vegetation Clearing
(VCP). All streams identified as Atlantic salmon habitat will have a 100-foot
riparian buffer and any non-capable species exceeding 10 feet will remain
within the stream buffer outside the wire zone. Inside the wire zone all woody
vegetation over 10 feet whether capable or non-capable will be cut to ground
level. Within this 100-foot buffer any capable species will be removed by
hand cutting, herbicides will not be used, and if the construction schedule
allows, clearing will occur during frozen ground conditions to minimize soil
disturbance.
EA at 16 (emphasis added). From a lay perspective, I cannot say that I am resoundingly
reassured. However, the Corps elsewhere specifically references the “Final Biological
Assessment” submitted to the U.S. Fish and Wildlife Service and observes that FWS
“concurs … that the proposed project may affect but is not likely to adversely affect
Atlantic salmon … and critical habitats for Atlantic salmon.” EA at 104. See also id. at
148-150 § 10.1. Plaintiffs have not presented me with a contrary assessment by a regulatory
agency such as Maine DEP or DFW. Given the assessment of FWS and the absence of a
strongly worded counter statement by another regulatory agency, and recognizing the
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deference owed to the Corps in its exercise of regulatory oversight concerning WOTUS, I
conclude it is unlikely Plaintiffs will demonstrate that the Corps’ assessment is arbitrary or
unreasonable.
Another obvious WOTUS concern involves brook trout habitat. The Corps did not
overlook this concern. For example:
Provided all applicable conditions are implemented and state and local
authorizations have been issued, the project is not expected to have more than
short-term minimal effect on waterways supporting wild brook trout. State
mandated compensatory mitigation in the form of a culvert replacement
program should result in long-term benefits to fisheries in terms of improved
passage and greater habitat connectivity.
…. Construction could temporarily disturb fish populations (noise, tree
clearing, increased 	human activity, etc) and could 	displace 	individual
fishermen from certain waterways. A return to baseline conditions is
expected upon completion of the project.
EA at 105. There is countervailing evidence in the record presented by Plaintiffs, discussed
below, but again I am struck by the absence of any outcry on the part of state or federal
environmental agencies. I am engaged in a deferential review process, not a free-ranging
fact-finding exercise. This presents Plaintiffs with a significant uphill climb.
In addition to substantial mitigation requirements designed to reduce the intensity
of environmental impacts, projects of this kind come with significant compensatory price
tags. The EA describes several compensation requirements for the Project’s wetland
impacts. Most salient to the Corps’ review: “Prior to the start of construction, the applicant
proposes to contribute $3,046,648.37 to the Maine Natural Resource Conservation
Program” as “a requirement of both the USACE and the DEP as compensation for direct
and indirect impacts to vernal pools and permanent wetland fills.” EA at 25. This
compensation is only partial. CMP also will conserve three large tracts of land.
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The applicant has proposed 3 preservation sites to provide compensatory
mitigation for impacts to WOTUS. They are the Flagstaff Lake Tract; Little
Jimmie Pond-Harwood Tract; and the Pooler Pond Tract. Each site has been
evaluated via 33 CFR 332.4(c)(2) through (c)(14) or 12 Components of a
Mitigation Plan in Section 8.0.
The Flag Staff Lake Tract currently has approximately 423.96 acres of
mapped wetlands; 10,790 linear feet of stream and 417.33 acres of riparian
upland. Therefore the site has the potential to produce 49.02 wetland credits
(21.918 wetland conversion@20:1 + 27.822 upland conversion@15:1).
The Little Jimmie Pond-Harwood Tract currently has 68.46 acres of mapped
wetland; 2 vernal pools; 3,030 linear feet of stream and 41.31 acres of
riparian upland. Therefore the site has the potential to produce 6.177 wetland
credits (3.423 acres + 2.754 acres).
The Pooler Pond Tract currently has 18.33 acres of mapped wetland; 1 vernal
pool; and 4,480 linear feet of street, and 62.91 acres of riparian upland.
Therefore the site has the potential to produce 5.11 wetland credits (0.916
acres + 4.194 acres).
To summarize, the applicant proposes to purchase 13.361 wetland credits
from the MNRCP ILF Program and will generate approximately 60.307
wetland credits through permitee responsible mitigation to offset impacts to
WOTUS. This exceeds the USACE required generation of 38.933 wetland
credits.
EA at 26.
On the one hand, these substantial compensation requirements tend to demonstrate
the significance of the Project’s watershed impacts. On the other hand, the existence of a
substantial quid pro quo or environmental compensation regime does not compel a finding
that a project’s WOTUS impacts significantly affect the human environment. Investment
in wetland land bank credits and direct preservation of existing ecological assets reflect
forward-thinking environmental policy. Plaintiffs have not convincingly demonstrated that
these regulatory schemes provide a litmus test for when an EIS is legally mandated.
Moreover, in comparison with the Project’s scattered and diffuse impacts to wetlands and
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the 	predominantly 	cover-conversion 	type 	of 	impact, 	CMP’s 	credit 	purchases 	and
preservation projects tend to improve or preserve more cohesive land banks and expansive
tracks of forest with high-value wetlands and other WOTUS assets. This is not a case of
destroying or crippling one significant WOTUS asset and preserving another, in which case
I might be able to say the impact is a relatively clear and a significant net loss. Instead, this
case involves scattered adverse WOTUS impacts of relatively mild intensity (according to
expert regulators) balanced against improvement and preservation of larger and more
coherent aquatic ecosystems. Plaintiffs have not yet persuaded me that there is a readily
applicable judicial rule that I could employ here to say when regulators can or cannot
consider these sorts of tradeoffs and offsets in their effort to measure the significance of
proposed actions on the human environment.
As for impacts to specific WOTUS assets, I can agree with Plaintiffs that it is
concerning that the Corps’ discussion of baseline WOTUS conditions consists primarily in
a recitation of numbers of vernal pools, brooks and streams, and acreage of wetlands. For
example, there is no specific identification of a WOTUS asset within the Corridor having
special value other than the Rivers and perhaps “coldwater fisheries” in the aggregate.22
Yet even after reviewing Plaintiffs’ motion record, principally comprised of declarations
by individuals who submitted written and oral testimony during Maine DEP proceedings,
Motion at 6 n. 6, I do not believe I can readily conclude that a specific WOTUS asset
22 In comparison, where it was possible to identify a specific asset to illustrate CMP’s care and
consideration, the Corps so indicated. For example, consider the Corps’ discussion of project alterations to
avoid Beattie Pond. EA at 87.
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existing in the human environment will be significantly undermined by the proposed
actions.
I have reviewed the declarations submitted by Dr. Matthew Schweisberg (ECF No.
18-11) and Dr. Aram Calhoun (ECF No. 18-12). However, I am not persuaded at present
that Dr. Schweisberg’s identification of “immediate and irreparable harm,” Schweisberg
Decl. ¶¶ 15, 24, is likely to compel a finding that the localized impact of corridor cover
conversion and clearing significantly affect waters of the United States. Nor am I persuaded
that Dr. Calhoun’s advocacy for vernal pools compels the Corps to produce a vernal pool
EIS based on “cumulative impacts … to all vernal pools and wetland resources [that],
although potentially small if considered on a pool-by-pool assessment …, are significant
taken together ….” Cahoun Dep. ¶ 11. This reluctance on my part is also informed by Dr.
Calhoun’s recognition that Segment 1, the primary focus of this litigation so far, already
involves environmental baseline impacts because the transmission line’s path would run
over “working forest under varied management regimes.” Id. ¶ 26. My impression after
considering this evidence is that there is room for disagreement about the efficacy of state
and federal mitigation requirements and whether the Project will significantly destabilize
or affect the health of the aquatic ecosystem. Id. ¶¶ 29-37. The Corps recognized that
corridor cutting will impact the wetlands, but concluded the impacts do not significantly
affect the quality of the human environment. It seems to me this conclusion was made after
considering the relevant evidence and is the product of reason rather than caprice.
I also have considered the important perspective offered by Jeffrey Reardon, a man
with many years of Maine-based expertise in brook trout conservation. Mr. Reardon
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describes the western mountain region through which the Project would pass as “the
nation’s most significant stronghold of native brook trout populations,” Reardon Decl. ¶
14 (ECF No. 18-15), and he regards the Corps’ assessment of impacts on fisheries as
inadequate and inaccurate. He explains that the 100-foot buffers in Segment 1 are a
compromise between protecting a transmission line and preserving brook trout habitat and
fall short of a Maine Department of Inland Fisheries standard that call for 60-70% crown
closure and resistance to wind throw. Id. ¶¶ 17, 33. He also believes the Project threatens
the Cold Stream brook trout population, a resource he describes as currently protected by
an 8,200 acre preserve. Id. ¶ 26. Mr. Reardon believes that cutting of some 1,400 feet of
corridor where it crosses the Capital Road east of Route 201 poses a special threat to this
preserve and will “degrade the public’s investment in protecting this valuable habitat.” Id.
¶ 27. Nevertheless, I am concerned that Mr. Reardon’s dire predictions about the Project’s
harm to, specifically, the expansive Cold Stream preserve and, more generally, the wider
stronghold of brook trout habitat throughout the western mountain region (thousands upon
thousands of acres through which the Project would not pass) are inflated by his devotion
to brook trout conservation work.23 I would expect the Maine Department of Fisheries and
Wildlife or the Department of Environmental Protection to echo his sentiments loudly if
his perspective were not overly strident.
The work of these experts is of great value and I respect their insights and concern
for the health of Maine’s ecosystems. However, given the nature of my review, it is not
23 Mr. Reardon also appears to be disappointed that CMP’s investment in preservation tracts will not focus
on expanding brook trout preserves. Id. ¶ 39.
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simply a matter of choosing my preferred expert perspective. Given my review thus far,
although I might have acted differently had I been standing in the Corps’ shoes, Plaintiffs
have not persuaded me that they are likely to prevail in this litigation.
2. 	Irreparable harm
Plaintiffs bear the burden to show that a denial of interim relief in this case is likely
to cause irreparable harm. See Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir.
2009). Although the “measure of irreparable harm can be a sliding scale, working in
conjunction with a moving party’s likelihood of success on the merits,” Vaqueria Tres
Monjitas, Inc., v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009), the movant must provide the
court with more than “conjecture, surmise or a party’s unsubstantiated fears of what the
future might have in store.” Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d
151, 162 (1st Cir. 2004). Even a showing as to the “possibility” of such harm will not
suffice. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
Plaintiffs remind the Court that “if any [important] decision is made without the
information that NEPA seeks to put before the decision maker, the harm that NEPA seeks
to prevent occurs . . . and courts are to take account of that kind of harm when they consider
whether to enjoin governmental actions that plaintiffs claim violate NEPA.” Motion at 11
(quoting Sierra Club v. Marsh, 872 F.2d at 497 (1st Cir. 1989)). Plaintiffs posit: “when
considering preliminary injunctions based on NEPA violations, the potential harm to the
environment stemming from the project for which the NEPA analysis was conducted is
attributable to the NEPA violation itself.” Id.
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The First Circuit holds that irreparable harm exists “when agencies become
entrenched in a decision uninformed by the proper NEPA process because they have made
commitments or taken action to implement the uninformed decision.” Busey, 79 F.3d at
1271. This is a function of the fact that NEPA is a procedural statute “designed to influence
the decision making process by making governmental officials notice environmental
considerations and take them into account.” Id. (quoting Massachusetts v. Watt, 716 F.2d
946, 952 (1st Cir. 1996)).
Based on my review of the record, I am not persuaded that Plaintiffs are likely to
prove that the Corps failed to take Plaintiffs’ WOTUS concerns into account. Rather, my
initial impression is that before the Corps issued its FONSI it collected and considered a
fulsome record containing thorough and detailed inputs from expert administrative
agencies and outside experts, including experts who stand behind the respective parties in
this litigation, and also from the lay public, including individuals who live and work in the
western mountain region and rely on a healthy aquatic ecosystem for their livelihoods.
While I recognize that the Project is unpopular and deeply disturbing to many people, in
particular those persons devoted to the environmental and scenic values existing in
Segment 1, which cannot be restored through issuance of a later court order, my
preliminary findings on the merits inform my assessment of whether or not the Corps has
run roughshod over the NEPA values at stake in this litigation. As to that question, I believe
the answer is no.
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3. 	Balance of equities
Given my assessment of the first two preliminary injunction factors, identification
of equitable interests on the other side of the balance only serves to undermine further
Plaintiff’s Motion. Delay of construction pending further litigation is no great imposition
for the Corps. However, equitable interests held by an intervenor defendant whose
economic interests are impacted by a preliminary injunction are legitimate considerations.
Town of Weymouth v. Massachusetts Dep’t of Envtl. Prot., 973 F.3d 143, 145 (1st Cir.
2020) (per curiam). CMP has committed to the Project considerable human and economic
resources and is in the position of expending considerably more – to little or no effect –
based on contractor commitments that do not disappear if it loses most of the winter months
while defending this litigation. I make this finding simply to recognize that there are
competing concerns to weigh, not to suggest that these economic concerns are weightier
than environmental concerns. It also strikes me that even if I concluded that the Corps
failed to afford adequate procedural protection to WOTUS impacts, or that the Corps
should be compelled to publish its draft EA for public comment, it would not necessarily
follow that I should enjoin cutting activity outside the riparian buffer zones. For example,
I might fashion relief more equitably by enjoining cutting inside those zones. However,
because I have ruled against Plaintiffs on the first two factors, I would be abusing my
discretion if I devised that kind of preliminary injunctive relief here.
4. 	Service of the public interest
The parties all make persuasive arguments concerning the public interest. Because
NEPA is a procedural statute and the Corps’s FONSI comes at the end of a process that
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likely ensured the Corps was “well informed” about the WOTUS impacts it authorized,
this factor does not weigh decisively in Plaintiffs’ favor, even if the outcome is unpopular.
Moreover, as emphasized by Intervenor Defendant CMP, the Maine Public Utilities
Commission 	has 	granted 	CMP 	a 	certificate 	of 	public 	convenience 	and 	necessity,
concluding the Project will benefit Maine in a variety of ways, including by reducing rates,
improving reliability, and reducing regional greenhouse gas emissions. This finding
demonstrates that the public interest is not monolithic.
CONCLUSION
For the foregoing reasons Plaintiffs’ Motion for Leave to Supplement the Complaint
(ECF No. 40) is GRANTED. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 18)
is DENIED.
SO ORDERED .
Dated this 16th day of December, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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