
USCA1 Opinion

	




          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 & 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 & 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 & 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 &  Chem. Workers  of                        __            _____________________________________          Quincy, Inc. v. Procter & 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                                    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 & 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                                   A.  NEPA CLAIMS                                       ___________                                         -14-                    1.  Logical Termini                    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                    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 & 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                    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 & DEPT. OF TRANSPORTATION ACT CLAIMS               B.  CLEAN WATER ACT & 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                               C.  CLEAN AIR ACT CLAIMS                                   ____________________                    1.  Jurisdiction                    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 & 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)  &  (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                    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  & 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-
