June 3, 1994      UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 93-1976

                  CONSERVATION LAW FOUNDATION OF
                    NEW ENGLAND, INC., ET AL.,
                     Plaintiffs - Appellants,

                                v.

             FEDERAL HIGHWAY ADMINISTRATION, ET AL.,
                     Defendants - Appellees.

                                           

                           ERRATA SHEET

     The opinion of this court issued on  May 23, 1994 is amended

as follows:

     On the cover  sheet, the caption should read:  "Conservation

Law   Foundation,  et  al.,   Plaintiffs-Appellants"  instead  of

"Conservation  Law  Foundation  of  New England,  Inc.,  et  al.,

Plaintiffs-Appellants."

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                           

No. 93-1976

               CONSERVATION LAW FOUNDATION, ET AL.,

                     Plaintiffs - Appellants,

                                v.

             FEDERAL HIGHWAY ADMINISTRATION, ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

       [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                                         

                                           

                              Before

                    Torruella, Cyr and Boudin,

                         Circuit Judges.
                                       

                                           

     Stephen H. Burrington with whom Conservation Law Foundation,
                                                                

Molly Cochran, Sullivan &amp; Worcester, John Marks and J. William W.
                                                                 

Harsch were on brief for appellants.
      

     Thomas F. Holt,  Jr. with whom Laura Grant Schwartz, William
                                                                 

C. Nystrom and Kirkpatrick &amp; Lockhart were on brief for appellees
                                     

Dante  E. Boffi, Jr., in his official capacity as Director of the

Rhode Island  Department of Transportation, and  the Rhode Island

State Planning Council.

     William  B. Lazarus, Attorney,  Department of  Justice, with
                        

whom Lois  J. Schiffer, Acting Assistant  Attorney General, Edwin
                                                                 

J. Gale,  United States Attorney, Michael  P. Ionnotti, Assistant
                                                      

U.S.  Attorney, Mary  Elizabeth Ward,  Beverly Sherman  Nash, and
                                                            

Jacques B. Gelin, Attorneys, Department of Justice, were on brief
                

for appellees Federal Highway Administration; Gordon G. Hoxie, in

his  official capacity  as Division  Administrator for  the Rhode

Island Division of the Federal Highway Administration; and Arthur

E.  Williams, in his official  capacity as Chief  of Engineers of

                               -2-

the U.S. Army Corps of Engineers.

     Daniel R.  Barney, Lynda  S. Mounts, Ata  Litigation Center,
                                                                

Steven S. Rosenthal, Nancy F. Goodman, and Morrison &amp; Foerster on
                                                              

brief for American Trucking Associations, Inc., amicus curiae.

                                           

                           May 23, 1994

                                           

                               -3-

          TORRUELLA,  Circuit Judge.    Plaintiffs  in this  case
                                   

appeal the denial  of their motion for  a preliminary injunction.

The district court denied  the injunction on the ground  that the

plaintiffs failed to show  a likelihood of success on  the merits

of  their underlying claims.   See  Narragansett Indian  Tribe v.
                                                              

Guilbert, 934 F.2d 4, 5 (1st  Cir. 1991).  We review the district
        

court's denial of the preliminary injunction "'under a relatively

deferential  glass,'" and will disturb  such a ruling  only if we

find the  court made  a  manifest mistake  of law  or abused  its

discretion.   Id. (quoting  Independent  Oil &amp;  Chem. Workers  of
                                                                 

Quincy, Inc. v. Procter &amp; Gamble Mfg. Co., 864 F.2d 927, 929 (1st
                                         

Cir. 1988)).

          After  reviewing  the  record  in  this  case  and  the

arguments  in the briefs, we conclude that the district court did

not  abuse its discretion or make any manifest errors of law when

it  found that plaintiffs had failed to establish a likelihood of

success  on  the  merits  of  their  claims  under  the  National

Environmental  Policy  Act  ("NEPA"),  42  U.S.C.      4321-4347;

Section 404 of the Clean Water  Act ("CWA"), 33 U.S.C.   1344(a);

Section 4(f) of the Department of Transportation Act ("DOTA"), 49

U.S.C.   303(c); and Section 176 of the Clean Air Act ("CAA"), 42

U.S.C.     7506(c).   We  therefore affirm  the  district court's

denial of plaintiffs' motion for a preliminary injunction.

          Because  the   district  court's  opinion   presents  a

thorough  and accurate discussion of  the facts of  this case, we

find  it  appropriate to  incorporate  that  discussion into  our

                               -3-

decision.

                               -4-

                         I.  Introduction

               This   litigation   stems   from   the
            proposed  construction  of the  Jamestown
            Connector,    a    four-lane,    divided,
            controlled  access   highway  across  the
            island of Jamestown,  Rhode Island  which
            will  connect   the  Jamestown-Verrazzano
            Bridge  and  the  Pell (Newport)  Bridge.
            Jamestown Island, lies  in the middle  of
            Narragansett Bay in what is known by some
            as the Route  138 corridor, a forty  (40)
            mile  stretch of roadways running from I-
            95 in Richmond, Rhode Island to  I-195 in
            Swansea,  Massachusetts.   The plaintiffs
            are   the  Conservation   Law  Foundation
            ("CLF"), Audubon Society of Rhode Island,
            Clean  Water   Action,  Concerned  Island
            Residents,   DOT   Watch,   Environmental
            Council  of Rhode  Island, Save  the Bay,
            Sierra Club, South Kingstown Neighborhood
            Congress,  and   West  Side  Association.
            Plaintiffs  filed  two separate  actions,
            which have been consolidated,  seeking to
            enjoin  construction   of  the  Jamestown
            Connector.    The   defendants  are   the
            Federal Highway  Administration ("FHWA"),
            Gordon  G. Hoxie in his official capacity
            as Division Administrator  for the  Rhode
            Island  Division  of the  Federal Highway
            Administration, Arthur E. Williams in his
            official capacity as  Chief of  Engineers
            of the U.S. Army Corps of Engineers ("the
            Corps"),  Dante  E.  Boffi,  Jr.  in  his
            official  capacity  as  Director  of  the
            Rhode Island Department of Transportation
            ("RIDOT"),    and   the  State   Planning
            Council.    In  total, plaintiffs  allege
            violations of five federal statutes:  the
            National    Environmental    Policy   Act
            ("NEPA"),    the    Intermodal    Surface
            Transportation Efficiency  Act "(ISTEA"),
            the   Clean   Water   Act  ("CWA"),   the
            Department of Transportation Act ("DOT"),
            and the Clean Air Act ("CAA").

                     II.  Factual Background

               The  history  of this  highway project
            dates back to proposed Interstate Highway
            895  ("I-895"),  which received  original
            approval in December 1969  as part of the

                               -5-

            Interstate  and  Defense Highway  System.
            The  original  proposed  12.1 mile  route
            spanned Narragansett  Bay between Warwick
            and Barrington, Rhode  Island.  In  1974,
            FHWA  approved  a  RIDOT  proposal  which
            recommended  a  substitute  route.    The
            proposed  substitute  I-895   essentially
            tracked Route 138,  an undivided  roadway
            dating  from the early  1920's, from I-95
            in  Richmond,  Rhode Island  to  I-195 in
            either    Swansea    or    Fall    River,
            Massachusetts.   Route  138 is  the  only
            road crossing Narragansett  Bay south  of
            Providence, Rhode Island.

               In November 1975,  RIDOT initiated  an
            Environmental  Impact  Statement/Corridor
            Location Study for designated I-895.   In
            April  1979,  RIDOT  published the  I-895
            Draft   Environmental  Impact   Statement
            ("DEIS").  The 1979 DEIS  recognized that
            Route   138   "was   not    intended   to
            accommodate   the   types  of   vehicles,
            prevailing  operating   speeds,  and  the
            volumes of traffic" that it then carried.
            Following  the  publication of  the DEIS,
            community  comment  was received  at four
            public  hearings.   On February  5, 1982,
            the  State  of  Rhode   Island  requested
            withdrawal  of  proposed  I-895 from  the
            Interstate Highway System.   On  December
            30,  1982,  FHWA approved  Rhode Island's
            withdrawal request because I-895  was not
            "essential to the completion of a unified
            and    connected   Interstate    System."
            (Fed.Def.Exh. 6)  Much of the proposed I-
            895 corridor,  however, remained eligible
            for   federal    funds   for   substitute
            projects.

               The  1979  DEIS  contained a  separate
            section addressing the construction  of a
            Jamestown  Bridge  replacement structure.
            Because  of its  functional obsolescence,
            increases     in     traffic     volumes,
            skyrocketing  maintenance  costs and  the
            need for a  completely new concrete deck,
            RIDOT determined that  the existing  two-
            lane Jamestown Bridge needed replacement.
            The  Surface  Transportation Act  of 1978
            specifically    allocated   discretionary
            funding   under    the   Highway   Bridge

                               -6-

            Replacement  Program   to  implement  the
            Jamestown Bridge replacement project.  As
            a result, FHWA authorized the development
            of   a  site-specific   Jamestown  Bridge
            Environmental Impact Statement ("JBEIS").
            The   JBEIS,   completed  in   May  1989,
            proposed  a four-lane  replacement bridge
            adjacent to the existing bridge and four-
            lane access roadways extending from Route
            1A in  North Kingstown to Helm  Street on
            Jamestown.

               Following the decision to  withdraw I-
            895, RIDOT continued  to examine the need
            for improvements throughout the Route 138
            Corridor.  RIDOT's analysis culminated in
            1984  with   the  issuance  of   a  Final
            Environmental  Impact Statement  ("FEIS")
            for the corridor.  FHWA approved the FEIS
            on  September 27,  1984.   The  1984 FEIS
            study   area    encompassed   Washington,
            Newport,  and  Bristol Counties  in Rhode
            Island,     as    well     as    Swansea,
            Massachusetts.  In Washington County, the
            FEIS  proposed a  mixture of  upgrades to
            certain existing portions of Route 138, a
            no-build  option  for  other portions  of
            Route  138,  and   construction  of   new
            roadways in other  areas of the corridor.
            On Jamestown Island, the FEIS  proposed a
            four-lane   reconstruction   along    the
            available right  of way on  Eldred Avenue
            (1.1  miles)  and two  possible four-lane
            alternatives  for  East  Shore Road  (1.1
            miles).   The FEIS   recognized  that the
            Jamestown    Design    Study    Committee
            ("JDSC"),  which  had   been  formed   in
            February  of  1983,  was considering  the
            entire   connector  roadway   system  for
            Jamestown Island.  Accordingly,  the FEIS
            contemplated draft and final supplemental
            EIS documents for  the project  following
            decisions   by  JDSC   and  RIDOT.     On
            Aquidneck    Island,   the    1984   FEIS
            recognized the need for  improvements but
            proposed   a  no-build   alternative  and
            recommended  further  studies.   Finally,
            the  FEIS proposed a  no-build option for
            the East Shore portion of the  study area
            including  Bristol  County, Rhode  Island
            and Swansea, Massachusetts.

                               -7-

               Following  the  1984  FEIS,  the  JDSC
            convened  numerous   public  meetings  on
            Jamestown    and   collected    community
            reaction  to  the  proposed  cross-island
            roadway.  Based upon community input, the
            JDSC  recommended  a  conceptual plan  to
            RIDOT  in June  1984 which,  with certain
            refinements, became  known as Alternative
            B.   Alternative B  proposed a controlled
            access  four-lane roadway  extending from
            the  Jamestown-Verrazzano   Bridge  along
            Eldred Avenue with  interchanges at  Helm
            Street and  North Road and flowing into a
            new  four-lane  roadway  located west  of
            East Shore Road extending to  the Newport
            Bridge.

               Based  on the  JDSC's recommendations,
            RIDOT  completed   a  draft  supplemental
            environmental impact  statement ("DSEIS")
            in April  1986.   The  FHWA approved  the
            DSEIS  on  April  22, 1986.    The  DSEIS
            considered six alternatives for  a cross-
            island roadway on Jamestown:   a No-Build
            Alternative,  the  Transportation Systems
            Management   ("TSM")   Alternative,   two
            unlimited access roadways (Alternatives A
            and  A1), and two limited access roadways
            (Alternatives  B  and   C).    The  DSEIS
            identified  Alternative  B, now  known as
            the   "Jamestown   Connector",   as   the
            preferred alternative.   RIDOT circulated
            the  DSEIS on  May  23, 1986  and held  a
            public    hearing   at    the   Jamestown
            Elementary School on June 26, 1986.

               Following the submission of the DSEIS,
            RIDOT  began  pursuing necessary  permits
            for  Alternative B from  the Rhode Island
            Department  of  Environmental  Management
            ("RIDEM").  Pursuant to provisions of the
            Administrative  Procedure  Act and  Rhode
            Island's   Freshwater  Wetlands   Act,  a
            wetland  public  hearing   was  held   on
            February  10,  1987  to   resolve  issues
            pertaining   to   wetland   impacts   and
            Alternative  B.   Following  the hearing,
            RIDOT   and   RIDEM   signed  a   consent
            agreement which modified Alternative B to
            minimize  wetlands  impact.    The  RIDEM
            Wetlands    Public     Hearing    Officer
            incorporated   the   conditions  of   the

                               -8-

            consent agreement into  the final  design
            and  order rendered  on  April 30,  1987.
            The  order  specified conditional  permit
            approval to alter freshwater wetlands.

               RIDOT  completed a  final supplemental
            environmental impact statement  ("FSEIS")
            for the Jamestown  Connector in July 1987
            and   FHWA   approved   the    FSEIS   on
            December 18, 1987.   The FSEIS  responded
            to  comments received  on the  1986 DSEIS
            and  investigated  the  same  six  design
            alternatives,  with  some  modifications,
            considered by the  1986 DSEIS.  According
            to the FSEIS, traffic safety and drainage
            concerns     rendered     the    No-Build
            Alternative and the  TSM Alternative  not
            viable.    The  unlimited access  upgrade
            alternatives,   A   and  A1,   failed  to
            separate   local  and   through  traffic,
            failed  to  maintain highway  continuity,
            permitted continued development along the
            alignment frontage, and allowed  for high
            traffic    volumes,     congestion    and
            increasing accident rates.  Alternative C
            affected  the  greatest  acreage  in  the
            Windmill   Hill  Historic   District  and
            failed to attract support  from Jamestown
            residents  because  of undesirable  local
            access    designs.       Alternative   B,
            meanwhile, provided the greatest benefits
            while minimizing adverse  impacts to  the
            residents  and   surrounding  environment
            according to the FSEIS.  As a result, the
            FSEIS  identified  Alternative  B as  the
            preferred alternative.  On May  27, 1988,
            FHWA  issued a Record of Decision ("ROD")
            on the FSEIS which expressly ratified the
            selection  of  Alternative B  for further
            project development.

               The 1987 FSEIS also  found Alternative
            B to be consistent with six other planned
            and committed highway projects within the
            Route 138 Corridor:   the I-95 to Route 2
            upgrade; the relocation of Route 138 from
            Route 2 to U.S. 1;  the reconstruction of
            Route 138  from U.S.  1 to the  Jamestown
            Bridge; the Jamestown Bridge Replacement;
            the Newport Circulator  Project; and  the
            Route 138 upgrading along East  Main Road
            from  Route   24  to  Route  113.     The

                               -9-

            cumulative   impacts   of  the   projects
            located   in    Washington   County   and
            Jamestown   (all   projects  except   the
            Newport Circulator and the East Main Road
            upgrade) had been previously  analyzed in
            the  corridor-wide  1979  DEIS  and  1984
            FEIS.

               RIDOT  proposed reconstruction  of the
            two-lane roadway from I-95  to Route 2 in
            three phases.  Phase one was completed in
            1981 and the other  two phases are in the
            preliminary   design    stage.      RIDOT
            reevaluated the FEIS  for the  relocation
            of  Route 138 from  Route 2 to  U.S. 1 in
            February 1991 and  modified the  original
            alignment.   The roadway from Route  1 to
            the  Jamestown  Bridge,  approved in  the
            1981 JBEIS, was constructed  during 1992.
            The   new   Jamestown-Verrazzano   Bridge
            replaced the Jamestown Bridge  and opened
            to  traffic on  October  19,  1992.   The
            Newport   Circulator  Project   has  been
            replaced   by   a   series    of   lesser
            improvements  expected  to  be  forwarded
            with  a  request  for  a  Finding  of  No
            Significant  Impact  ("FONSI") in  Summer
            1993.      Finally,  the   FHWA  approved
            improvements to the  four-lane East  Main
            Road  on December 24,  1991 and selection
            of a consultant to  begin final design is
            underway.

               The 1987 FSEIS  also examined  impacts
            to   parklands  and   historic  resources
            governed   by   Section   4(f)   of   the
            Department of  Transportation Act ("DOT")
            and Section 106  of the National Historic
            Preservation   Act.     This   evaluation
            focuses  on  the  Windmill Hill  Historic
            District   and    examined   four   build
            alternatives, a No-Build Alternative, and
            an Avoidance Alternative.   Although  the
            No-Build  Alternative  would not  impinge
            upon  historic  resources,  it failed  to
            meet the project goals and was determined
            to be neither prudent nor  feasible.  All
            four of the build  alternatives adversely
            effected   the  Windmill   Hill  Historic
            District.    The  FSEIS  determined  that
            Alternatives  A  and  A1, both  four-lane
            uncontrolled  access   roadways  with  at

                               -10-

            grade  intersections,  carried  far  less
            short-term impacts  on historic resources
            than  the  preferred alternative.   These
            alternatives,  however,  failed  to  meet
            traffic service and  safety concerns  and
            permitted   the  possibility   of  future
            development  which  could   have  a   far
            greater long-term impact on  the historic
            district.    The  FSEIS  determined  that
            Alternative C, a  limited access  highway
            on  a  different alignment,  required the
            use  of  more  historic   resources  than
            Alternative    B    without     providing
            offsetting  traffic  or safety  benefits.
            Finally,     although    an     Avoidance
            Alternative,   designed   to  avoid   all
            protected   Section  4(f)   resources  on
            Jamestown Island, was feasible, the FSEIS
            determined  that  it   was  not   prudent
            because  of  "a   number  of   disruptive
            consequences  involved  in  this  or  any
            alternative that avoids the Windmill Hill
            Historic  District."   Although  it found
            that  Alternative  A1  caused  the  least
            impact  to  the  historic  district,  the
            Rhode   Island  Historical   Preservation
            Commission recognized that the separation
            of  through  and  local traffic  achieved
            with    Alternative     B    necessitated
            considering this  alternative even though
            it  had  greater short-term  Section 4(f)
            impacts.   The  1987 FSEIS  ROD concluded
            that there  was  no prudent  or  feasible
            alternative to the use  of land from  the
            Windmill   Hill  Historic   District  and
            Alternative   B  included   all  possible
            planning to minimize harm  resulting from
            such use. 

               On June 8,  1988, FHWA authorized  the
            acquisition  of  parcels  to establish  a
            right-of-way  along  Eldred  Avenue  from
            Seaside   Drive  to   North  Road.     By
            November 7, 1990, RIDOT  had acquired  at
            least 143 of the 202 parcels necessary to
            build the Jamestown Connector.

               In  October,  1986 RIDOT  submitted to
            the  Corps  the  first  of  a  series  of
            applications for a permit for the filling
            of  wetlands  in   connection  with   the
            Jamestown  Connector.   (Plaintiffs' Exh.

                               -11-

            22 and 23.)   Although the Corps issued a
            public notice regarding its permit review
            for    the    Jamestown   Connector    on
            November 29, 1990, no public  hearing was
            held  in  connection   with  the   permit
            application.   On May 22, 1992, the Corps
            completed  an  Environmental   Assessment
            ("EA") and statement  of findings for the
            purposes of issuing a Section  404 permit
            to fill wetlands.  The EA "considered all
            factors   relevant   to  th[e]   proposal
            including   cumulative  effects."     The
            environmental     assessment    minimized
            wetlands  impacts  by replacing  the Helm
            Street  overpass with a  frontage road to
            address  local access concerns.  Based on
            the  evaluation of  environmental effects
            discussed  in the  1987 FSEIS,  the Corps
            determined  that  the  "decision on  [the
            Section  404]  application  [was]  not  a
            major   federal    action   significantly
            affecting  the  quality   of  the   human
            environment"  and  therefore required  no
            separate environmental  impact statement.
            The  Corps  concluded that  Alternative B
            without the Helm  Street overpass was the
            least       environmentally      damaging
            practicable alternative.  As a result, on
            May 21,  1992, the  Corps issued  a final
            Section 404 permit  authorizing RIDOT  to
            fill approximately 4.6 acres  of wetlands
            to construct the Jamestown Connector.

               Throughout  and  following  the  Corps
            permit   approval   process,   the   JDSC
            continued  to  hold periodic  meetings to
            evaluate additional proposed  refinements
            to the Jamestown Connector  design.  In a
            JDSC  meeting held on May 7, 1992, Thomas
            Todd,   an    architect   and   Jamestown
            resident, presented an alternative design
            featuring    an   at-grade,    signalized
            intersection  at  the crossing  of Eldred
            Avenue  and  North   Road.    Mr.  Todd's
            conceptual  layout   incuded  two  travel
            lanes in each direction and separate left
            and right turn lanes along Eldred Avenue.
            Minutes  of the meeting  reflect that Mr.
            Todd  also  had  contacted the  Jamestown
            Police and  had been informed  that there
            had  been  213  accidents  (78  involving
            injury)  on Route  138 in  Jamestown over

                               -12-

            the previous five  year period.   Records
            at   the   Newport   Bridge  Toll   Plaza
            indicated  that approximately  31 million
            trips had been  made over that  same time
            period.  At  the same  meeting, the  JDSC
            formed an architectural review committee,
            with Mr. Todd as a member.  Over the next
            six  months,  RIDOT incorporated  certain
            profile  and   architectural  adjustments
            suggested  by  the  architectural  review
            committee  into  the Jamestown  Connector
            design.

               FHWA   conditionally    approved   the
            receipt   of   bids  for   the  Jamestown
            Connector on July  31, 1992.   Plaintiffs
            commenced this action on October 8, 1992.
            RIDOT  opened  bids  for   the  Jamestown
            Connector on December 11, 1992.  On April
            21,  1993,  RIDOT  issued  a  conditional
            notice   to  proceed   with  construction
            activity   to   its  contractor,   Tilcon
            Gammino.   After final notice  to proceed
            was given, construction began on  May 13,
            1993.   On May 21, 1993, plaintiffs moved
            for a temporary restraining order ("TRO")
            to  enjoin further construction.   On May
            25, 1993, this court  granted plaintiffs'
            TRO application  which restrained further
            construction activity within the frontage
            road area along Eldred Avenue.  The court
            vacated   the  TRO   on  June   8,  1993.
            Defendants   have    moved   to   dismiss
            plaintiffs'  Clean Air Act claim for lack
            of  jurisdiction and  failure to  state a
            claim  upon which relief  can be granted.
            Plaintiffs,  in  turn,  have   moved  for
            summary judgment  on their Clean  Air Act
            and  Intermodal   Surface  Transportation
            Efficiency  Act  claims.   Because  these
            motions  raise   substantially  the  same
            issues  as  plaintiffs'  application  for
            preliminary injunction,  the court defers
            ruling on  them and considers  all claims
            under    the    preliminary    injunction
            standard.

Conservation Law  Found. v. Federal Highway  Admin., 827 F. Supp.
                                                   
871, 872-77 (D.R.I. 1993) (footnotes omitted).

                          I.  DISCUSSION

                               -13-

          Plaintiffs  challenge  the  district  court's  findings

under  NEPA,    404  of  CWA,     4(f)  of  DOTA,  and  the  CAA.

Conservation Law Found., 827 F. Supp. at 877-91.  We bear in mind
                       

that  the   district  court  reviewed  the   actions  of  several

administrative  agencies throughout  much  of its  opinion.   The

actions  of   such  agencies  shall  not   be  overturned  unless

"arbitrary, capricious, an abuse  of discretion, or otherwise not

in accordance with law."   5 U.S.C.   706(2)(A).   In particular,

the administrative actions taken  in this case under NEPA,    404

of CWA,    4(f) of DOTA  and   176  of the CAA  are subject to  a

highly deferential abuse of discretion standard of review.  Marsh
                                                                 

v.  Oregon Natural Resources Council, 490 U.S. 360, 377-78 &amp; n.23
                                    

(1989) (NEPA); Sierra Club  v. Marsh, 976 F.2d 763, 769 (1st Cir.
                                    

1992)  (NEPA); Norfolk v. United States Army Corps of Eng'rs, 968
                                                            

F.2d   1438,  1445-46  (1st  Cir.  1992)  (   404  of  the  CWA);

Communities,  Inc.  v. Busey,  956 F.2d  619, 623-24  (6th Cir.),
                            

cert. denied,  113 S. Ct. 408 (1992) (  4(f) of the DOTA) (citing
            

Citizens to Preserve Overton  Park, Inc. v. Volpe, 401  U.S. 402,
                                                 

416 (1971)); Sierra Club v. Larson,  2 F.3d 462, 466-69 (1st Cir.
                                  

1993) (substantial deference given to EPA's interpretation of the

CAA); Puerto Rican Cement Co. v. United States EPA, 889 F.2d 292,
                                                  

296-98  (1st  Cir. 1989)  (EPA's  construction of  the  CAA given

"controlling weight" unless it is "plainly erroneous").   For the

following  reasons, we  uphold the  district court's  findings in

this case.

                         A.  NEPA CLAIMS
                                        

                               -14-

          1.  Logical Termini

          The district  court found  that none of  the defendants

violated its respective obligations  under NEPA to prepare proper

Environmental   Impact  Statements  ("EISs")  for  the  Jamestown

Connector  highway project.   In  particular, the  court rejected

plaintiffs' argument that the defendants unlawfully segmented the

geographic area of analysis  in the 1987 Jamestown  Connector EIS

("Jamestown FSEIS")  and that  defendants failed to  consider the

cumulative impacts  of highway projects  all along the  Route 138

Corridor.

          Federal  Highway  Administration  ("FHWA")  regulations

provide that an EIS is of proper geographic scope if the  project

it analyzes connects "logical termini," has "independent utility"

and does not restrict "consideration of alternatives."  23 C.F.R.

  771.111(f).    The  district  court found  that  the  Jamestown

Connector project satisfied all three criteria  and, as a result,

the  1987  Jamestown FSEIS  was of  the  appropriate scope.   The

plaintiffs take issue only with  the court's determination of the

first prong (the so-called "logical termini" prong).

          "Termini" include crossroads, population centers, major

traffic generators, or similar highway control elements.  37 Fed.

Reg. 21,810.   The district court found  that the two bridges  on

each  side  of  the  Jamestown Connector  (entering  and  exiting

Jamestown  island)  are  logical  enough termini  to  uphold  the

agencies'   determination  that  the   connector  was   a  proper

geographic area  for environmental analysis.   In particular, the

                               -15-

court accepted defendants' argument  that the bridges are traffic

generators or traffic control devices.

          Plaintiffs contend  that the bridges do  not qualify as

"crossroads" or  "traffic  generators," but  instead  are  merely

indistinguishable strips of the highway that happen  to pass over

water.   According to the plaintiffs, because most traffic merely

passes over the bridges and through the island on its  way to and

from cities  in Connecticut  and Massachusetts, and  to and  from

various highway interchanges that  are located several miles away

from  the bridges,  the  bridges themselves  neither control  nor

generate any traffic but merely carry it.   Thus, the bridges are

allegedly  not  a  "beginning  or  end"  such  that   they  could

reasonably be considered "termini."

          Plaintiffs present a strong  argument, but, given  that

we  are reviewing this case for an abuse of discretion, we cannot

find that the  district court  erred in  upholding the  agencies'

determination of termini.   See Swain v. Brinegar, 542  F.2d 364,
                                                 

369 (7th  Cir. 1976)  ("The task  of the court  is not  to decide

where to  draw the line,  but to  review the matter  to ascertain

whether  the agency has made a reasonable choice.").  The bridges

may  not "control" or "generate"  traffic in the  strict sense of

those words, but they do represent the only way that cars can get

onto  and off  of  the island.    Thus, traffic  passing  through

southern  Rhode  Island  is   controlled  by  the  existence  and

condition  of those bridges.   Although the  FHWA is  not free to

consider  every bridge  or culvert  in a highway  system to  be a

                               -16-

suitable end  point for purposes of conducting  EIS analysis, two

bridges  over  Narragansett Bay,  a  considerably  large body  of

water,  can  reasonably  constitute  a   major  "highway  control

element."   37 Fed. Reg. 21,810.  Ultimately, when viewed through

the lens  of basic common sense, two bridges on either side of an

island appear to be perfectly logical termini to us.

          None  of   the  authorities  cited  by  the  plaintiffs

indicates that "logical termini"  must be located at interchanges

or  major metropolitan  areas.   We  do  not believe  that  those

decisions which  found indistinguishable strips of  highway to be

improper termini for EIS purposes apply to the present case.  See
                                                                 

Swain 542 F.2d at  369-70; Indian Lookout Alliance v.  Volpe, 484
                                                            

F.2d 11, 19-20 (8th  Cir. 1973); Patterson v. Exon,  415 F. Supp.
                                                  

1276, 1283 (D. Neb. 1976).  We also do not find any authority for

plaintiffs' assertion that the  district court erred as a  matter

of  law  by considering  the  geographic  situation of  Jamestown

Island in its determination that the bridges are logical termini.

Indian Lookout  Alliance, 484  F.2d at  18-19, for  example, says
                        

nothing about the propriety or impropriety of considering special

geographic features in making  logical termini analysis.  Rather,

the case simply  states that courts should look to the nature and

purpose of the  project in determining which termini are logical.

Id.  In this case, one of the purposes of the Jamestown Connector
  

is  to facilitate traffic passing from one  side of the island to

the  other.    From this  perspective,  the  bridges are  logical

endpoints.

                               -17-

          The  district  court  also  considered  the  two  other

elements  in 23  C.F.R.    771.111(f) ("independent  utility" and

"reasonable alternatives") when it found that the Jamestown FSEIS

was of the proper scope.  The court found that  these two factors

carry  more weight in this case than the "logical termini" prong.

Plaintiffs argue  that this finding  is error because  courts can

only accord  "logical termini" less importance  where the highway

project  is in  a major  metropolitan area.   The  relevant cases

concerning the  reduced weight afforded to  the "logical termini"

prong do involve  highway projects in  metropolitan areas.   See,
                                                                

e.g., Coalition on Sensible  Transp. Inc., v. Dole, 826  F.2d 60,
                                                  

69  (D.C.  Cir.  1987);  Piedmont  Heights  Civic  Club, Inc.  v.
                                                             

Moreland, 637 F.2d 430, 440 (5th Cir. 1981).  The courts in those
        

cases, however, did not reduce the weight afforded to the termini

prong simply because the area in question was urban as opposed to

rural.   Rather, the courts reduced the importance of the termini

factor in those cases because it was difficult to determine where

projects  began and  ended in  convoluted urban  highway systems.

Coalition on Sensible Transp., 826 F.2d at 69; Piedmont  Heights,
                                                                

637 F.2d  at 440.  Therefore,  the district court did  not err in

stating that, as a  matter of law, the "independent  utility" and

"reasonable alternative" prongs are more important "where logical

termini are not so easily determined."   Conservation Law Found.,
                                                               

827 F. Supp. at 879.   Although the Jamestown Connector  does not

involve the  usual spaghetti of highway  interchanges often found

in   urban   centers,   it   does   involve   sufficient  special

                               -18-

circumstances -- the  traversing of  an island in  the middle  of

Narragansett Bay  -- to warrant  a finding that  "logical termini

are not so easily determined."

          2.  Cumulative Impact

          The  plaintiffs next  contend  that the  district court

erred in finding that the Jamestown FSEIS properly considered the

cumulative effects on the  environment of all projects  along the

entire Route 138 corridor as required by NEPA and the regulations

promulgated by the Council on  Environmental Quality ("CEQ").  40

C.F.R.     1508.7 &amp; 1508.25(a).   The district  court stated that

the Jamestown  FSEIS "concluded that the  Jamestown Connector was

consistent  with six other planned and  committed projects in the

Route 138 Corridor."  Recognizing that this was not, in itself, a

complete  cumulative  analysis, the  court  then  added that  the

Jamestown  FSEIS also  referenced the  FHWA's 1984 Route  138 EIS

("1984  FEIS")  and the  original I-895  draft EIS  ("1979 DEIS")

which  did conduct a sufficient cumulative impact analysis.1  The

                    

1   Plaintiffs  take issue  with the  district court's  use  of a
quote,  Conservation  Law  Found.,  827  F.  Supp.  at  880, from
                                 
Fritiofson v. Alexander, 772  F.2d 1225 (5th Cir. 1985),  stating
                       
that a "full-blown environmental analysis of the impacts of other
actions" is not  required.  Although  the plaintiffs are  correct
that this quote refers  to a preliminary Environmental Assessment
and not to a more in-depth EIS, the quote does interpret the very
same regulations applied in  this case.  In any event,  the quote
is  not a crucial part of  the district court opinion because the
court goes on to explain why  the EISs do in fact contain a  full
cumulative effects analysis.   Similarly, the  following sentence
on page  880, referring to  a satisfaction of  "statutory minima"
under Piedmont Heights,  637 F.2d at 441,  although pertaining to
                      
the  NEPA  statute  in  general  instead   of  the  specific  CEQ
regulations  at issue  here,  is still  applicable  to this  case
because it addresses  the basic question of what  information can
be  used by  agencies to  analyze cumulative  effects  of various

                               -19-

district court noted that the 1979 DEIS considered the effects of

the entire Route  138 corridor  and that the  1984 FEIS  analyzed

projects  in  Washington  County  and  Jamestown,  including  the

"general  location  and mode  choice  for what  would  become the

Jamestown Connector."   Conservation Law Found.,  827 F. Supp. at
                                               

881.

          Plaintiffs first  of all contest the court's conclusion

that  the 1984  FEIS and  the 1979  DEIS conducted  the necessary

cumulative analysis.  They  do not take issue with  the substance

of the analysis  in these reports or with the thoroughness of the

environmental  review  conducted  by  the  defendants.   Instead,

plaintiffs challenge the geographic  scope of the area considered

in those reports,  arguing that  because parts of  the Route  138

corridor were left out of the various EISs, their analyses cannot

be  completely cumulative.  They claim that the 1984 FEIS did not

analyze  proposed  actions for  the  Route 138  corridor  east of

Washington County  (which is  basically the Newport  Rhode Island

area where the  highway continues east of  Jamestown Island after

crossing the eastern bridge off the island).  While the 1979 DEIS

did analyze this area, it did not consider the exact same highway

routes and projects that are presently contemplated for  the area

(i.e., the  original  projects  for that  area  have  since  been
     

discarded).  Consequently, plaintiffs  point out that neither EIS

                    

projects.  We think  it is reasonable, and plaintiffs  present no
caselaw to the contrary, for agencies to consider  prior studies,
draft  or otherwise,  in  their  EISs  and  to  include  them  by
reference.

                               -20-

analyzed two  of the  six  projects listed  within the  Jamestown

FSEIS as part of  the Route 138 corridor (the  Newport Circulator

and East Main Road upgrade).2

          For  us, the bottom line  is that the relevant agencies

conducted  an analysis  of  the environmental  impact of  highway

construction  projects along Route 138.   The 1979  and 1984 EISs

contain in-depth discussions  (300 pages worth  in the 1979  DEIS

and  200  pages in  the  1984  FEIS)  covering  a wide  range  of

environmental  concerns surrounding  highway construction  in the

area of Route  138.  For its part, the Jamestown FSEIS explicitly

referenced the two prior EISs  and placed the Jamestown connector

in  the context of  the entire Route  138 corridor project.   The

1979  and 1984  EISs  may not  have  covered precisely  the  same

geographical  areas  or  projects  that are  now  being  built or

proposed in  conjunction with  the Jamestown Connector,  but they

did sufficiently  consider the  incremental impact  of individual

                    

2  Plaintiffs also claim that the 1984 FEIS "deferred analysis of
the  Jamestown  Connector,"  by  noting several  times  that  the
process for deciding on the construction design and route for the
Jamestown  Connector was  ongoing and  that no decision  had been
made.    Therefore,  plaintiffs  argue, the  1984  FEIS  did  not
properly  consider the  cumulative impact  of all  projects taken
together in its environmental analysis.  This argument strikes us
as a red  herring.  The 1984 FEIS clearly  contemplated some kind
of  highway construction  between  the two  bridges on  Jamestown
Island  and it explicitly discussed the fact that a more in-depth
environmental study of the island would be done in a supplemental
EIS.  A full  description of the environment on  Jamestown island
was  included  in  the  1984  FEIS.    The  Jamestown  FSEIS  was
subsequently  written as a supplement  to the 1984  FEIS and both
EISs  contemplated  that the  two would  be  read together.   The
district  court  found  this  to  be  sufficient  to satisfy  the
cumulative impact  analysis requirement  and we see  no abuse  of
discretion in this ruling.

                               -21-

sections  of Route  138 construction "when  added to  other past,

present and  reasonably foreseeable future actions."  40 C.F.R.  

1508.7.   We therefore do  not believe the  district court abused

its discretion  in rejecting the plaintiffs'  contention that the

aforementioned discrepancies in the EISs violated NEPA.

          Plaintiffs  nevertheless  maintain  that  even  if  the

combined  analyses contained  in all  the EISs  constitute proper

cumulative  impact review, the process of referencing them in the

Jamestown  FSEIS  does not  comport  with  the cumulative  impact

requirements  in   the  CEQ   regulations.    According   to  the

plaintiffs, a  particular EIS cannot incorporate  the findings of

other  EISs unless it  is part of  a proper "tiering"  process as

provided for in 23 C.F.R.   771.111(g).  Under   777.111(g):

            For  major  transportation  actions,  the
            tiering  of EISs as  discussed in the CEQ
            regulation (40  C.F.R.   1502.20)  may be
            appropriate.   The  first tier  EIS would
            focus on broad issues  . . . . The second
            tier would  address site-specific details
            . . . .

The  district court found the "tiering" of the Jamestown FSEIS on

top of the 1984 FEIS and 1979 DEIS to be proper in this case.

          Plaintiffs claim this finding is erroneous because: (1)

the 1979  DEIS was just a  draft having no legal  effect; (2) the

1984 FEIS did not qualify as a programmatic evaluation upon which

smaller  projects could be tiered; and (3) the Route 138 Corridor

is  not a  sufficiently large,  wide-ranging federal  project for

which tiering is appropriate.

          Although the plaintiffs are  correct that the 1979 DEIS

                               -22-

has  no legal effect  and cannot, by  itself, serve as  the first

tier in the  EIS process,  nothing that the  plaintiffs point  to

precludes  a final  EIS from  referring to  the reports  and data

contained  in  a draft  EIS  to  analyze  cumulative  impacts  of

governmental actions.  Thus, the information in the 1979 DEIS can

be  considered a part of the cumulative impact analysis for Route

138.

          The plaintiffs further argue that the 1984 FEIS was not

sufficiently  comprehensive to  constitute  a programmatic  first

tier that can support the second tier in the Jamestown FSEIS.  To

support  this  contention,  plaintiffs  basically  restate  their

earlier argument that  the 1984  FEIS failed to  analyze all  the

proposed projects  along  the  entire Route  138  corridor.    To

briefly restate our rejection of this argument, the 1984 FEIS not

only addressed the Route 138 corridor in a comprehensive fashion,

it explicitly contemplated that a supplemental EIS, the Jamestown

FSEIS, would be prepared in conjunction with the larger  EIS.  We

see  no abuse  of  discretion  in finding  this  to be  a  proper

application of the tiering  regulations.  Cases relied on  by the

plaintiff  to  support  its  contention that  the  1984  FEIS  is

incomplete,  Kleppe v.  Sierra  Club, 427  U.S. 390,  410 (1976);
                                    

National Wildlife Fed.  v. Appalachian Reg. Comm'n, 677 F.2d 883,
                                                  

888  (D.C. Cir. 1981), discuss when a single, programmatic EIS is

required,  but they do not dictate the precise manner and content

of  those programmatic EISs.   In this case,  it is reasonable to

conclude  that  the 1984  EIS  considered  together the  combined

                               -23-

consequences  of   proposed  actions   along  Route  138.     See
                                                                 

Appalachian Reg. Comm'n, 677 F.2d at 888.
                       

          Finally, plaintiffs claim  that the Route 138  Corridor

cannot  be tiered  because  it  does  not  qualify  as  a  "major

transportation  action."   Because  plaintiffs point  to no  case

authority   for   imposing   a  "major   transportation   action"

requirement  in the tiering context, we find this assertion to be

unfounded.  Plaintiffs cite cases involving "wide ranging federal

projects" for which broad "programmatic" EISs have been prepared.

See Kleppe v.  Sierra Club, 427 U.S. 390 (1976) (development of a
                          

national  coal leasing  program); Tenakee  Springs v.  Block, 778
                                                            

F.2d  1402  (9th  Cir. 1985)  (land  use  plans  for the  Tongass

National  Forest);  National Wildlife  Fed.  v. Appalachian  Reg.
                                                                 

Comm'n, 677 F.2d 883 (D.C.  Cir. 1981) (the 13-state  Appalachian
      

Highway  System).   None of  these cases  say anything  about the

requirements for tiering,  nor do they  say anything to  indicate

that  a  highway project,  like Route  138,  cannot qualify  as a

"major  transportation action"  or even  a "wide  ranging federal

project."  Consequently,  plaintiffs provide no  basis for us  to

find a manifest error of law with respect to the district court's

tiering ruling.

          Even if NEPA  did require  that a first  tier EIS  must

cover  a  "major transportation  action,"  Route  138 appears  to

qualify.  Plaintiffs describe  the Route 138 project as  merely a

"40-mile  state highway that is  being upgraded with  the help of

federal funds."   Even if this characterization is  accurate, the

                               -24-

district court  did not  abuse  its discretion  in finding  forty

miles of  highway crossing  Narragansett Bay and  passing through

several different islands to be a "major transportation action."

          3.  Actions of the Army Corps of Engineers

          Under   404  of the  CWA, the Army  Corps of  Engineers

(the  "Corps") must  prepare an  EIS in  compliance with  NEPA if

there is  a "substantial  possibility" that the  proposed actions

(in this  case, the granting of a  permit to fill wetlands) could

"significantly  affect"  the  environment.    For  the  Jamestown

Connector,   the  Corps  prepared   a  preliminary  Environmental

Assessment ("EA")  and found  no significant impact  warranting a

full  EIS.   While  the record  does  contain evidence  that  the

project will  detrimentally affect  some wetlands, this  evidence

does not overwhelmingly contradict the Corps' conclusion that the

project  will not  "significantly affect"  the environment.   The

district court upheld the  Corps' determina- tion and we  find no

abuse of discretion on the part of the court or the Corps.

          The district court  also found that  the Corps did  not

improperly segment their analysis  in the EA or fail  to consider

cumulative  effects.   Plaintiffs  claim error  but the  district

court  responded fully  to  their objections.   Conservation  Law
                                                                 

Found., 827 F. Supp. at 881.  We have nothing to add.3  
      

                    

3  The plaintiffs cite Fritiofson v. Alexander, 772 F.2d at 1244,
                                              
for  the proposition  that "conclusory  statements" by  the Corps
that  it has  considered cumulative  impacts are  insufficient to
show compliance with  the cumulative impact requirements.   We do
not  read this case as standing for  such a proposition or in any

                               -25-

     B.  CLEAN WATER ACT &amp; DEPT. OF TRANSPORTATION ACT CLAIMS
                                                             

          Under    404 of the  Clean Water Act,  the Corps cannot

issue  a permit to fill  wetlands if there  exists a "practicable

alternative"4  to  the  proposed  action  that  would  have  less

adverse   impact.    Likewise,   the  FHWA  may   not  approve  a

transportation  project  under      4(f)  of  the  Department  of

Transportation Act  which encroaches on a  National Historic Site

unless no "prudent and feasible" alternative exists.

          Plaintiffs  claim  that  the district  court  erred  in

crediting  the determination of the Corps and the FHWA that there

were   no  practicable  alternative   designs  to  the  Jamestown

Connector  project.    Specifically,  plaintiffs  argue  that the

agencies failed to  consider the so-called "Todd design" which is

identical to the design  actually chosen (the FHWA and  the Corps

chose "Alternative  B") except that  a stoplight and  an at-grade

intersection  would  replace a  proposed overpass  at one  of the

major intersections on the island.

          Although the defendants did not explicitly consider the

Todd design itself, the  district court found that the  Corps and

the FHWA  did consider the main feature of the Todd design -- the

                    

way casting serious doubt on the validity of the district court's
holding.

4  40 C.F.R.   230.10(a)(2) provides that:

            An  alternative is  practicable if  it is
            available  and  capable  of  being  done,
            after  taking  into  consideration  cost,
            existing  technology,  and  logistics  in
            light of overall project purposes.

                               -26-

at-grade  intersection  in place  of  the overpass  --  when they

evaluated  two  other  alternatives   (Alternatives  A  and  A1).

Plaintiffs  object to this because Alternatives  A and A1 involve

an  unlimited access road and  other features not  present in the

Todd design.   Therefore,  plaintiffs contend, the  conclusion by

the  defendant agencies  that  Alternatives  A  and  A1  are  not

practicable because they  involve significant traffic  congestion

and safety hazards  does not necessarily apply to  an alternative

that  removes all the traffic  hazards with the  exception of one

stoplight at a major intersection.

          This  is a valid  objection, but plaintiffs' contention

does not justify a finding of an abuse of discretion or  manifest

error  of law.  Technical  discrepancies may have existed between

alternatives  actually considered  and an  alternative  which, if

considered,  may have been found to be more practicable.  The two

alternatives considered,  however, were somewhat similar  in that

they  both contained an element of  major concern to the Corps --

an at-grade  intersection which could lead  to traffic congestion

and safety problems.  This similarity is sufficient to render the

Corps' substantive analysis acceptable.

          Plaintiffs also  argue that because two other agencies,

the Environmental Protection Agency ("EPA") and the U.S. Fish and

Wildlife Service  ("FWS"), criticized  the FHWA's  conclusions in

the 1987 FSEIS, the  Corps could not "blindly rely" on the FHWA's

conclusion  that  Alternative  B  was  the least  environmentally

damaging practicable  alternative.  As the  district court points

                               -27-

out, however, the Corps did not "blindly rely" on the 1987 FSEIS.

Rather, the Corps supplemented the FHWA's evaluation with its own

administrative record, studies, and responses  to public comment.

The district court's finding is not an abuse of discretion.

          Finally,    4(f) of the DOT requires that the FHWA must

undertake all  possible planning  to minimize harm  to historical

sites.    Plaintiffs  argue  that  the  Todd  design  alternative

constitutes an example of  required planning which would minimize

such harm.  Under   4(f), agency determinations that a particular

plan  minimizes harm  to  historical sites  deserve even  greater

deference  than  agency  determinations   concerning  practicable

alternatives.   Coalition on Sensible  Transp. Inc. v.  Dole, 642
                                                            

F. Supp.  573,  599 (D.D.C.  1986);  see also  Druid  Hills Civic
                                                                 

Ass'n.  v. Federal Highway Admin.,  772 F.2d 700,  716 (11th Cir.
                                 

1985).  With this in mind,  our review of the record convinces us

that the district court's discussion of the "planning to minimize

harm"  issue, Conservation Law Found., 827 F. Supp. at 883-84, is
                                     

beyond reproach on appellate review.

                               -28-

                     C.  CLEAN AIR ACT CLAIMS
                                             

          1.  Jurisdiction

          We address, first of all, the defendants' argument that
                                                  

the federal court  has no jurisdiction over plaintiffs' Clean Air

Act  ("CAA") claims  -- an  issue not  addressed by  the district

court but one that we nevertheless may notice on  appeal.  Sierra
                                                                 

Club v. Larson, 2 F.3d 462, 465-66 &amp; n.3 (1st  Cir. 1993); Martel
                                                                 

v. Stafford, 992 F.2d 1244, 1245 (1st Cir. 1993).  The defendants
           

claim  that the  language of  the citizen  suit provision  of the

Clean  Air Act, 42 U.S.C.   7604(a)(1), which authorizes suits to

enforce  violations  of  an  "emission  standard or  limitation,"

limits such  suits to  cases involving standards  and limitations

set  in a state implementation plan or  standards set by the EPA.

Because the  present  suit does  not involve  the enforcement  of

standards set out in  a state or EPA plan,  defendants argue that

the  district   court  had   no  jurisdiction  to   consider  the

plaintiffs' claims in the first place.  We disagree.

          Under CAA's  citizen  suit provision,  any  person  may

commence  a civil  action to enforce  violations of  an "emission

standard or  limitation under  this chapter."   42  U.S.C.   7604

(a)(1).  The term "emission standard or limitation" is defined by

42 U.S.C.   7604(f) as a "standard  of performance . . . which is

in  effect  under  this chapter  .  . .  or  under  an applicable
                                           

implementation plan."5 (emphasis added).   According to its plain

                    

5  Defendants' use  of the definition for "emissions  standard or
limitation"  provided  in  42  U.S.C.    7602(k)  (a  requirement
"established by the State  or Administrator") is improper because

                               -29-

language, this  section includes  "standards of  performance" set

out  in  the  Act  itself.   The  specific  statutory  provisions

enumerated in   7604(f)(3) are  not the only statutory provisions

that can be enforced  under the citizen suit provision.   Rather,

as  long  as  the  claimed  violation  involves  a  "standard  of

performance" "under" the CAA, the court has jurisdiction pursuant

to   7604(f)(1), even though  the standard is not imposed  by the

statutory sections enumerated in   7604(f)(3).

          In   this   case,   plaintiffs  are   challenging   the

defendants'  violation  of the  CAA  conformity  requirements, 42

U.S.C.    7506 (c)(1)  &amp;  (c)(3), which  mandate that  defendants

demonstrate that their  transportation projects "would contribute

to annual  emissions reductions  consistent with" the  levels set

out  in     7511a(b)(1)  and     7512a(a)(7).   These  conformity

requirements  plainly   constitute  an  emissions   "standard  of

performance" as that  term is defined in 42 U.S.C.    7602(l) ("a

requirement  of  continuous  emission  reduction,  including  any

requirement relating to the operation  or maintenance of a source

to assure  continuous emission reduction").   Therefore,  because

the citizen suit provision allows for suits to enforce "standards

of  performance,"   42  U.S.C.     7604(f)(1),   this  court  has

jurisdiction over plaintiffs'  CAA claims.   See Delaney v.  EPA,
                                                                

898 F.2d 687,  693 (9th Cir.), cert. denied,  498 U.S. 998 (1990)
                                           

(enforcing 42 U.S.C.    7506(c) and EPA conformity guidelines  in

                    

  7604(f)  defines  this term  for all  of    7604,  trumping the
definition in   7602(k).

                               -30-

citizen suit).

          We recognize that  there are a number  of cases holding

that the citizen suit  provision, 42 U.S.C.   7604,  only applies

to suits  against individual polluters or  government actors that

fail to comply  with the specific requirements of a  state or EPA

implementation plan,  and that  the provision does  not encompass

statutory   directives   requiring    the   creation   of    such

implementation plans in the  first place.  Wilder v.  Thomas, 854
                                                            

F.2d  605, 613-15  (2d Cir.  1988), cert.  denied, 489  U.S. 1053
                                                 

(1989); League to  Save Lake  Tahoe, Inc. v.  Trounday, 598  F.2d
                                                      

1164,  1173  (9th  Cir.),  cert. denied,  444  U.S.  943  (1979);
                                       

Citizens Ass'n of Georgetown Committee of 100 v.  Washington, 535
                                                            

F.2d  1318,  1322 (D.C.  Cir.  1976);  Natural Resources  Defense
                                                                 

Council,  Inc.  v. Train,  510 F.2d  692,  700 (D.C.  Cir. 1974);
                        

Council  of Commuter Orgs. v. Metro. Transp. Auth., 683 F.2d 663,
                                                  

670-71  (2d Cir. 1982).  We do  not believe, however, that any of

these cases have satisfactorily  explained why the plain language

of   7604(f)(1)  would not apply to suits like  the one before us

in this case.  Instead, these cases seem primarily concerned with

declining to allow plaintiffs to use   7604 as a vehicle to force

government  agencies or  instrumentalities to  comply  with their

general obligations under the  Clean Air Act.  See,  e.g., League
                                                                 

to  Save Tahoe,  598 F.2d  at 1168-70,  1173; see  also Coalition
                                                                 

Against Columbus Ctr. v.  New York, 967 F.2d 764, 769-71 (2d Cir.
                                  

1992)  (distinguishing between  general  air  quality  standards,

which  are not enforceable  under   7604,  and specific emissions

                               -31-

controls which are enforceable).  Thus, these cases restrict  the

use of   7604 to  violations of "objective evidentiary standards"

and avoid suits requiring a "reanalysis of technological or other

considerations at the enforcement stage."  E.g., Wilder, 854 F.2d
                                                       

at 614.

          The  present case is distinguishable in that plaintiffs

substantive claims involve statutory  provisions that are  fairly

specific  and  objective.  See  42  U.S.C.     7506(c)(3)(A)(iii)
                              

(requiring  transportation  plans  -- which  involve  exclusively
                          

pollution  from automobile  emissions  -- to  be consistent  with

  7511   a(b)(1)   which   requires   states   to  formulate   an

implementation plan that reduces certain pollutants by 15% from a

1990  baseline  level).   The  provision  is  more  similar to  a

specific  emission control  standard  applicable  to  a  specific

source,  than  a  general  air  quality  standard  which  may  be

accomplished   in   any  number   of   ways   depending  on   the

"technological considerations" of the state  or agency developing

the implementation plan designed to reach the proscribed level of

air quality.   Thus, even under  the aforementioned caselaw,  the

federal court has jurisdiction over this case.6

          2.  The Merits

          Under 42 U.S.C.   7506(c)(1), an instrumentality of the

                    

6  Our decision on the jurisdictional issue is a close one.   The
preliminary  evaluation set  out above  provides ample  basis for
proceeding to the merits.   However, because the outcome  of this
case  does not depend upon our  jurisdictional ruling, this Court
remains free to revisit the  issue in a future case where  it may
be decisive. 

                               -32-

federal  government  may  not  authorize,  fund  or  support  any

activity   that  does   not  "conform"   to  an   approved  State

Implementation Plan ("SIP").  During the relevant period  in this

case (i.e.,  an  "interim  period" when  no  conforming  SIP  yet

exists), conformity  for "transportation plans  and programs"  in

Rhode  Island  was  demonstrated by  showing  that  the  plan and

program  "contribute[d] to annual emissions reductions consistent

with   7511a(b)(1) and   7512a(a)(7) of this title."  42 U.S.C.  

7506(c)(3)(A)(iii).    In  this  case,  the  relevant  "plan  and

program" are Rhode Island's Transportation Improvement Program of

1991 ("TIP") and its  Transportation Plan of 1992 ("Plan").   The

challenged governmental actions  include the FHWA's authorization

of  construction on the Jamestown  Connector in July  of 1992 and

the Corps'  issuance of a permit to fill wetlands in May of 1992.

The  defendants also adopted and  approved the TIP  and the Plan,

actions which the plaintiffs also challenge.

          The district  court found: (1) that  Rhode Island's TIP

and  Plan conformed with the requirements of the CAA because they

contributed   to  annual  emissions  reductions  consistent  with

  7511a(b)(1);  and (2) that, regardless, the Jamestown Connector

project was not subject to further conformity review  pursuant to

regulations in effect at the time of approval.  23 C.F.R.   770.9

(d)(3) (w/drawn Dec. 22, 1992, 57 Fed. Reg. 60,725).

          For purposes of the present  litigation, which involves

construction on the Jamestown Connector, we need not consider the

conformity  of Rhode  Island's TIP  and Plan  to the  extent this

                               -33-

issue  does  not effect  the  status of  the  Jamestown Connector

project itself.   Because the district court's  second finding is

dispositive  in this case,  we do not reach  the issues raised in

the court's first finding.

          Plaintiffs  claim  that  the  regulation  found  by the

district court  to insulate the Jamestown  Connector from further

conformity review, 23 C.F.R.   770.9(d)(3),  does nothing to stop

the  ban on federal support of nonconforming projects provided in

  7506(c)  as part  of  the 1990  CAA  Amendments.   (Again,  the

challenged   actions  include   the   FHWA's   authorization   of

construction and the Corps' issuance of a permit to fill wetlands

in 1992).  According  to the plaintiffs, the 1990  CAA Amendments

either  trump the effect of the regulation or simply provide new,

independent  conformity requirements  that  must  be  met  before

federal  action can be taken  on any project,  regardless of that

project's own conformity status.   In other words,  the Jamestown

Connector may  itself conform to the CAA, but the TIP and Plan do

not, so the government is  barred from taking any actions  in the

entire state, including actions for the Jamestown Connector.

          Specifically,  plaintiffs  read      7506(c)(3)(B)7  to

                    

7  42  U.S.C.    7506(c)(3)(B) provides, in  relevant part,  that
conformity  of transportation  projects  will be  demonstrated if
they:

            (i) come from a conforming transportation
            plan   and   program   as    defined   in
            subparagraph (A) or  for 12 months  after
            November 15, 1990, from  a transportation
            program  found to conform  within 3 years
            prior to such date of enactment.

                               -34-

mandate  that  no  transportation  project  may  receive  federal
                 

funding or  support unless  the project  comes from  a conforming

Plan  and TIP as defined  in 7506(c)(3)(A) or,  until November of

1991,  from a  plan or  program found to  conform within  3 years

prior  to November 15,  1990.  The  issue before us  is whether  

7506(c)(3) applies to all projects regardless of their status, or

just  to  projects  that   have  yet  to  receive   a  conformity

determination as of November, 1990.

          Without delving  into statutory  minutiae -- and,  as a

consequence,  declining  the parties'  invitation  to  engage the

battle  of dueling legislative histories -- we believe that it is

certainly  reasonable  for  the  district  court  to (implicitly)

interpret  the grace  period provision  in    7506(c)(3)(B)(i) as

applying  only prospectively and  not to  past projects  like the

Jamestown Connector.   First of all,   7506(c)(3)(B) does not say

that  no project can receive federal support unless it comes from

a  conforming transportation  plan.   Instead,  the grace  period

sentence relied on by the plaintiffs,   7506(c)(3)(B)(i), is part

of a provision explaining the manner in which the "conformity" of

plans, TIPs and projects will be demonstrated for purposes of the

restriction in   7506(c)(1).  Plans whose conformity  has already

been demonstrated do  not appear  to fall under  the auspices  of

this provision.  The grace period in 7506(c)(3)(B)(i) talks about

projects that "come from  . . . a transportation program found to
                                                        

conform within 3 years prior to" November 1991.   It says nothing

about  the project itself being found to conform during the prior

                               -35-

3 years.  Consequently, the provision seems specifically aimed at

projects  whose conformity had yet to be demonstrated by the time

the 1990  Amendments took effect.8   The Jamestown  Connector was

found to conform in 1988 at the latest (by means  of the approval

of the Jamestown FSEIS) and we  see no indication in   7506(c)(3)

that Congress intended to abrogate this determination.

          Furthermore,  the language  of    7506(c)(3)  -- "Until

such time as the implementation plan  revision . . . is approved,

conformity  of   such  plans,  programs  and   projects  will  be

demonstrated  if .  . ." --  sounds like  it is  referring to the

"interim  period," that is, the time between the enactment of the

Amendments and the adoption of the new SIPs.  Thus, a prospective

application  of the provision seems particularly appropriate and,

conversely, a retroactive application particularly inappropriate.

This interpretation  of   7506(c)(3) has  apparently been adopted

by the  EPA and the  Department of  Transportation.  See  June 7,
                                                        

Environmental  Protection  Agency  and  Dept.  of  Transportation
                                                                 

Guidance  for  Determining  Conformity of  Transportation  Plans,
                                                                 

Programs  and Projects  With Clean  Air Act  Implementation Plans
                                                                 

During Phase  I of the Interim Period, June 7, 1991 at 22-23, 24-
                                     

                    

8  For this reason, the plaintiffs' argument that the defendants'
interpretation of    7506(c)(3)(B)(i)  would make  that provision
superfluous  is specious.   Presumably,  there existed  plenty of
projects in  1990 that  were not as  far along  as the  Jamestown
Connector and had not yet received a conformity determination, as
did  Jamestown, prior to the 1990 Amendments.  Those projects may
have "come  from" conforming Plans  and TIPs  at the time  of the
Amendments,  but  the projects  themselves had  yet to  receive a
determination  of conformity.  As  a result, the  grace period in
  7506(c)(3)(B)(i)  was   enacted  to  address   these  types  of
projects.

                               -36-

25 (interpreting   7506(c)(3) to apply only to projects that have

yet to receive conformity determinations);  see also 58 Fed. Reg.
                                                    

62190-91  (EPA  and   Department  of  Transportation  regulations

holding    that   its   Interim   Guidance   governs   conformity

determinations  made  between  1990  and  1993).     It  is  well

established that we afford  considerable deference to an agency's

interpretation of a  statute that  it is  primarily charged  with

enforcing, especially  a complicated  one like the  CAA.   Puerto
                                                                 

Rican Cement Co.  v. United States  EPA, 889 F.2d  292 (1st  Cir.
                                       

1989) (Courts give EPA's construction of the statute "controlling

weight"  unless  it is  "plainly  erroneous");  see also  Chevron
                                                                 

United States,  Inc. v. Natural Resources  Defense Council, Inc.,
                                                                

467 U.S. 837, 844-45 (1984); Larson, 2 F.3d at 466-69; Comit  Pro
                                                                 

Rescate  De La Salud  v. Puerto Rico Aqueduct  &amp; Sewer Auth., 888
                                                            

F.2d  180, 186  (1st  Cir. 1989),  cert.  denied, 494  U.S.  1029
                                                

(1990).

          We  realize that a result of this interpretation of the

CAA is  that states  may have conforming  transportation projects

without having  any conforming transportation  plans or programs.

We see no problem with this outcome as long as federal government

support is  limited to projects  that were  basically already  on

their way to  completion before  the 1990 CAA  Amendments.9   The

                    

9   Although  the  FHWA did  not  authorize construction  of  the
Jamestown  Connector until 1992 and  the Corps did  not issue its
permit to fill  wetlands until  1992 as well,  the final  federal
environmental go-ahead  for the project  was given  in 1988,  and
Rhode Island  had acquired much  of the land  for the project  by
1990.  See Conservation Law Found., 827 F. Supp. at 890.
                                  

                               -37-

plaintiffs'  position, however,  would  result in  a more  absurd

situation -- a  complete halt of all  ongoing projects regardless

of how close to completion those projects have become.  We see no

indication in the CAA that Congress intended such a result.

          Affirmed.
                  

                               -38-
