UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al. )

)

Plaintiffs, )

)

v. ) Civil No. 06-CV-00258-JAW

)

U.S. ARMY CORPS )

OF ENGINEERS, et al. )

) 

Defendants. )

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION 2

II. STATEMENT OF FACTS 3

III. PROCEDURAL HISTORY 7

A. Background 7

B. Motions for Summary Judgment 8

IV. STANDARD OF REVIEW 9

V. DISCUSSION 12

A. Clean Water Act Claims 12

1. Practicable Alternatives 13

2. Public Interest Review 19

a. Traffic Impacts 20

i. Impact of Dunbarton and Silk Roads 20

ii. General Impacts of Phase II 22

b. Balancing Recreational and Educational Resource Impacts 25

i. Recreational Impacts 25

ii. Educational Impacts 26

3. Deference to State and Local Zoning and Land Use Decisions 27

4. Wetland Mitigation 31

5. Effluent Limitations – 33 U.S.C. § 1341(d) Compliance 36

B. Scope of the Environmental Assessment & Cumulative Impacts 38

1. Segmentation: Connected and Cumulative Actions 39

2. Cumulative Impacts 41

3. Secondary Impacts 44

C. Historic Preservation 44

1. The Tuttle House 46

2. Pleasant View Home 48

3. Consideration of Alternatives 49

4. Documentation and Public Participation Requirements 51

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D. NEPA 52

1. FONSI Review 53

2. Whether the Effects are ―Highly Controversial‖ 56

VI. CONCLUSION 58

I. INTRODUCTION

Northwest Bypass Group,1 Morton and Carolyn Tuttle,2and Leslie Ludtke3allege 

that the United States Army Corps of Engineers (Corps) violated the Clean Water Act (CWA), 

the National Environmental Policy Act (NEPA), and the National Historic Preservation Act 

(NHPA), when it issued a permit pursuant to Section 404 of the CWA, allowing the City of 

Concord to fill three and one half acres of wetlands to build a 4,300-foot connector road.4 In a 

comprehensive nineteen-count complaint spanning 140 pages, the Plaintiffs allege that the Corps 

committed numerous statutory violations. See generally Compl. (Docket # 1). This case has 

been exhaustively litigated and now comes on dueling motions for summary disposition. The 

Court grants the motions for summary judgment filed by the Federal Defendants,5the city of 

Concord, and the Intervenors;6the Court denies the motion for summary judgment filed by the 

Plaintiffs. 

 

1 Northwest Bypass Group – composed of unnamed members – was formed in 2001 to oppose construction of the 

Northwest Bypass. Compl. ¶ 5 (Docket # 1).

2 The Tuttles are the owners of the Tuttle House, a historic home which stands in the path of Phase II of the 

Northwest Bypass. Compl. ¶ 6.

3 Ms. Ludtke is a recreational user of the Turkey River White Farm Trails system, which would be bisected by Phase 

II. Compl. ¶ 7.

4 The Court has considered this case in several prior orders, and refers to those orders as appropriate. See, e.g.,

Northwest Bypass Group v. United States Army Corps of Eng’rs, 470 F. Supp. 2d 30 (D.N.H. 2007) [Northwest 

Bypass II]; Northwest Bypass Group v. United States Army Corps of Eng’rs, 453 F. Supp. 2d 333 (D.N.H. 2006)

[Northwest Bypass I]. To the extent there are issues raised in the Complaint not addressed in the pending motions 

for summary judgment, the Court relies upon its earlier rulings.

5 The Plaintiffs impleaded as Defendants the United States Army Corps of Engineers, Lieutenant General Carl A. 

Strock, Chief Engineer of the United States Army Corps of Engineers, and Colonel Curtis Phalken, New England 

District Commander of the United States Army Corps of Engineers. Compl. ¶¶ 8-9. The Court refers to the Corps 

Defendants variously either as the Corps or the Federal Defendants. 

6 On August 10, 2006, Concord Hospital and St. Paul‘s School moved to intervene under Rule 24. Mot. of Concord 

Hospital and St. Paul’s School to Intervene As Defs. Under F.R.C.P. Rule 24 (Docket # 12). The motion was 

granted on August 22, 2006. Oral Order Granting Mot. to Intervene. 

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II. STATEMENT OF FACTS

Within the capitol city of Concord, New Hampshire, there is a roughly V-shaped parcel of 

open land that runs from the center of the city to the playing fields of St. Paul‘s School.7 The V 

lies on its side, pointing east. The northern leg of the V is Pleasant Street, the southern leg is 

Clinton Street, and it is capped on the west by the Silk Farm Road and Dunbarton Road, which 

wend through St. Paul‘s campus. Concord has grown around the V. Concord Hospital, a major 

regional medical center, is located on Langley Drive, which intersects with Pleasant Street; 

downtown Concord and Concord High School lie to the east of the point of the V; and, I-89 

intersects with Clinton Street, the southerly leg of the V. 

Surprisingly, the land inside the V has remained pristine. The V contains the state-owned 

White Farm complex, a farm that has been listed on the National Register of Historic Places 

since May 15, 1981, for its significance as representing the practice and evolution of progressive 

agriculture. The V includes the Pleasant View Home, also listed on the National Historic 

Register and known for its beautiful vistas; the Tuttle House, a property eligible for listing on the 

National Historic Register; and a monastery for the Carmelite Sisters, a cloistered religious order 

that prizes peace and quiet. This open, undeveloped area not only has an extensive system of 

cross-country skiing and hiking trails often enjoyed by Concord residents, but also it has 

significant wetlands. 

In the late 1940s, Concord city planners developed a vision for a Northwest Bypass, a 

circumferential roadway around the City. As Concord grew, only one portion of the Northwest 

Bypass was constructed and the remaining plans to ring the city remained visionary. In 1956, 

Concord Hospital, now one of the busiest hospitals in New Hampshire, moved to Pleasant Street 

 

7 This statement of facts has been gleaned largely from the allegations in the Plaintiffs‘ Complaint and matters of 

public record, such as court and administrative decisions. 

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and as patient volume grew, so did traffic volume. After I-93 and I-89 were built and as the 

surrounding area developed, the streets that formed the V became increasingly congested funnels 

into and out of Concord. The worst of the problem centered around the notorious five prong 

intersection of Pleasant, Warren, and Fruit Streets, a problem exacerbated by its location between 

Concord High School and its athletic fields and the constant ebb and flow of students. City 

planners began to conceive of ways to loosen the snarl; they harkened back to the old concept of 

a Northwest Bypass and began to focus on placing a road transecting the V. The entire project 

was divided into three phases: Phase I would reconstruct a portion of Pleasant Street with 

turning lanes and a traffic signal and build a new access road to Concord Hospital, called 

Langley Parkway South; Phase II would intersect the V connecting Pleasant and Clinton Streets 

through the V; and, Phase III would extend Langley Parkway South about one mile north to 

Penacook Street in the north central part of Concord. 

In the early 1990s, the city filed for governmental approvals of the entire Northwest 

Bypass project and on April 30, 1993, it received the necessary approvals from the New 

Hampshire Department of Environmental Services (NHDES) for the whole project. The Corps 

also issued a permit, but restricted its approval to Phase I.8 The changes on Pleasant Street and 

the relatively short roadway to the Hospital – only 1,500 feet long – were not controversial. As 

originally designed, Langley Parkway South was limited to a single curb-cut, and did not 

 

8

In February 1993, the Corps suspended processing the application at the city‘s request. The city later continued 

with Phase I, which because of its small impact, qualified for the New Hampshire State General Permit and did not 

require individual permitting. 

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impinge on the unspoiled land in the center of the V.9 Once Phase I was completed in 1995, the 

city turned back to Phase II, the road transecting the V.10 

From a planning perspective, Phase II made good sense. The residential streets were 

never designed to carry such heavy traffic loads, patients and emergency vehicles were caught in 

interminable, unsafe delays, and traffic had shifted over to Silk Farm Road, which leads to 

Dunbarton Road, and through the campus of St. Paul‘s School, a private secondary residential 

school of about 525 students. Silk Farm Road and Dunbarton Road even now remain bucolic, 

winding country roads, but they endure approximately 1,600 motor vehicles daily, some racing 

through the campus and placing the students and others at risk. St. Paul‘s, anxious to restrict 

access, and Concord Hospital, anxious to facilitate access, joined forces with the City and the 

three agreed to share the costs of the project. In addition, the City agreed to declare Silk Farm 

Road and Dunbarton Road private, thereby limiting access to those who have business at St. 

Paul‘s. 

In November 2000, the City announced its intention to proceed with Phase II by filing an 

application with the NHDES for a wetland fill permit and water quality certificate. The City also 

sought the requisite CWA section 404 permit from the Corps to fill wetlands in the path of the 

proposed Phase II. AR 1:137. On December 12, 2000, the Corps issued a public notice,

soliciting comment on whether to approve the permit with respect to Phase II. Id.; AR 1:38. The 

NHDES held two public hearings, which the Corps‘s regulatory project manager attended. Id. 

In addition, in response to the 2000 public notice, the Corps received and considered numerous 

public comments. AR 1:39-41. 

 

9

Plaintiffs allege that the original design has been altered and the city has allowed ―six serial violations of the 

express single-curb-cut condition of its Phase I permit . . . .‖ Compl. ¶ 216 (Docket # 1). 

10 Phase III is described as a potential continuation of the road from Pleasant Street to Penacook Street. The City 

has applied only for a road reaching from Clinton Street to Pleasant Street, and asserted to the Corps during the 

Phase II permitting process that it had no plans to begin permitting for the northerly ―Phase III.‖ AR 1:32.

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The City‘s decision provoked a firestorm of controversy. A nonprofit unincorporated 

association of residents, called the Northwest Bypass Group (NBG), coalesced opposition to 

Phase II, which the Complaint aptly describes as ―fierce.‖ Compl. ¶ 5. NBG is dedicated to 

protecting and preserving ―the scenic, historical, ecological and aesthetic values that would be 

impacted by this project‘s construction, and [raising] public awareness about the impact it would 

have on nearby neighborhoods.‖ Id. The opponents of Phase II have determinedly fought the 

project at each stage beginning with the multiple state approvals and continuing with the final 

approval process of the Corps. Between 2000 and 2006, the project was held in abeyance due to 

state court proceedings. The opponents were unsuccessful, the culmination being a New 

Hampshire Supreme Court decision affirming summary judgment in favor of the City. See 

Blakeney v. City of Concord, No. 2004-0438, slip. op. (N.H. August 19, 2005) (Corrected Order). 

On January 10, 2006, the Corps completed an Environmental Assessment (EA) of the 

proposed project to determine whether an Environmental Impact Statement (EIS) was necessary. 

See AR 1:32. The EA identified the basic purpose of the project: ―to relieve traffic congestion 

and to allow for the safe and efficient flow of traffic in this quadrant of the city. Improved 

pedestrian safety is an inherent part of the basic project purpose.‖ AR 1:34. Next, the Corps 

considered and rejected three alternatives. Id. The Corps determined that, ―[f]rom our 

environmental assessment of the project we find that our decision to permit fill for this project is 

not a major Federal Action significantly affecting the human environment. Therefore, an EIS is 

not required and our Environmental Assessment will suffice for the purposes of compliance with 

NEPA.‖ AR 1:41. According to the EA, the Corps considered ―all factors relevant to this 

proposal including cumulative effects‖ and concluded that ―this project is not contrary to the 

public interest and that a Department of the Army permit should be issued.‖ Id. Consistent with 

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their determined opposition to the project, the Plaintiffs waged a full scale assault in this Court 

against the Corps‘s approval.11 

III. PROCEDURAL HISTORY

A. Background

Consisting of 140 pages and nineteen separate counts, the Complaint, dated July 13, 

2006, is an articulate treatise on environmental and administrative law complete with case law, 

statutory, and regulatory support. In addition to NBG, the plaintiffs include Morton C. and 

Carolyn H. Tuttle, owners and residents of the historic Tuttle House, and Leslie J. Ludtke, a New 

Hampshire resident and avid user of the Turkey River White Farm Trails system that the 

connector road would intersect. The Defendants include the Corps and the city of Concord and, 

as intervenors, Concord Hospital and St. Paul‘s School. 

On the same day as they filed their Complaint, Plaintiffs moved for a temporary 

restraining order (TRO) and a preliminary injunction. See Pls.’ Mot. for TRO and Prelim. Inj. 

(Docket # 2). Plaintiffs subsequently filed an emergency motion for a TRO and requested an 

expedited hearing on September 6, 2006. Pls.’ Emergency Mot. for TRO & Req. for Expedited 

Hr’g (Docket #32). The Court held a hearing on both the TRO and preliminary injunction on 

September 13, 2006, and denied the TRO by order dated September 15, 2006. See Order on 

 

11 This Court is sitting by designation. The Plaintiffs filed the Complaint in the United States District Court for New 

Hampshire. Chief Judge McAuliffe recused himself by Order dated September 1, 2006, Order (Docket # 29); 

Judges DiClerico and Barbadoro followed suit on September 5, 2006, and September 6, 2006. Orders (Docket # 30, 

33). Once all judges of the District of New Hampshire were recused, Chief Judge McAuliffe referred the case to the 

District of Maine, sitting by designation. Chief Judge McAuliffe concluded the recusal of all the judges in New 

Hampshire constituted an ―emergency‖ within the meaning of 28 U.S.C. § 636(f) and concurred in the assignment of 

a magistrate judge to perform the duties specified in 28 U.S.C. § 636(a) – (c). Order (Docket # 33). A procedural 

order issued on September 8, 2006, referring the case to this Court. Order (Docket # 34). 

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Emergency Mot. for TRO (Docket # 46).12 Plaintiffs moved for reconsideration of that order. 

Pls.’ Mot. to Reconsider Order on Pls.’ Mot. for TRO (Docket # 50). 

On January 5, 2007, the Court denied Plaintiffs‘ motion for a preliminary injunction. See

Order (Docket # 81) (Prelim. Inj. Order). Within that Order, the Court also denied Plaintiffs‘ 

motion for reconsideration of the Order on the TRO. Id. at 2 n.5. On January 29, 2007, the 

Plaintiffs moved for reconsideration of the order denying a preliminary injunction. See Mot. for 

Recons. of Order on Pls.’ Mot. for Prelim. Inj. (Docket # 87). Plaintiffs replaced that motion 

with an amended motion the following day, which the Court denied on June 4, 2007. Pls.’ Am. 

Mot. to Reconsider Order on Pls.’ Mot. for Prelimin. Inj. (Docket # 91); Order on Pls.’ Am. Mot. 

to Reconsider Order for Partial Recons. of Order on Pls.’ Mot. for Prelimin. Inj. (Docket # 124). 

B. Motions for Summary Judgment

Before the Court are several motions and cross-motions for summary judgment. On June 

26, 2007, the City of Concord filed a motion for summary judgment. Def. City of Concord’s 

Mot. for Summ. J. (Docket # 136) (City’s Mot.). The Plaintiffs responded with their opposition 

on August 13, 2007, Pls.’ Mem. in Opp’n to City of Concord’s Mot. for Summ. J. (Docket # 144), 

and amended their memorandum on August 15, 2007. Pls.’ Am. Mem. in Opp’n to City of 

Concord’s Mot. for Summ. J. (Docket # 146) (Pls.’ Am. Opp’n to City). On July 3, 2007, the 

intervenors, Concord Hospital and St. Paul‘s School, filed their motion for summary judgment. 

Intervenor’s Mot. for Summ. J. (Docket # 138) (Intervenor’s Mot.). On August 13, Plaintiffs 

filed their objection to that motion. Pls.’ Obj. to Intervenor’s Mot. for Summ. J. (Docket # 145) 

(Pls.’ Obj. to Intervenors). Also on August 13, 2007, the Corps filed its motion for summary 

judgment. Federal Defs.’ Mot. for Summ. J. (Docket # 142) (Corps’ Mot.). The Plaintiffs filed 

 

12 The Court ruled on the motion for TRO on an expedited basis and focused on narrow issues, because the 

construction would have had a limited initial effect. The Order denying the preliminary injunction addressed the full 

range of issues contained in the Complaint. 

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their response on September 18, 2007. Pls.’ Resp. to the Federal Defs.’ Mem. in Supp. of Mot. 

for Summ. J. (Docket # 152) (Pls.’ Resp. to Corps). The Federal Defendants filed a reply on 

October 9, 2007. Federal Defs.’ Reply Mem. in Supp. of Mot. for Summ. J. (Docket # 154) 

(Corps’ Reply).

Plaintiffs filed a motion for summary judgment on August 13, 2007. Pls.’ Mot. for 

Summ. J. (Docket # 143) (Pls.’ Mot.). The City of Concord objected on September 17, 2007. 

City of Concord’s Obj. to Pls.’ Mot. for Summ. J. (Docket # 148) (City’s Obj.). The intervenors 

objected to the Plaintiff‘s motion on September 18, 2007, and the federal defendants objected on 

the same day. Intervenor’s Obj. to Pls.’ Mot. for Summ. J. (Docket # 149) (Intervenor’s Obj.); 

Federal Defs.’ Mem. in Opp’n to Pls.’ Mot. for Summ. J. (Docket # 151) (Corps’ Opp’n). 

Plaintiffs replied on October 9, 2007, to both the City‘s opposition and the Federal Defendant‘s 

opposition. Pls.’ Reply to City of Concord’s Mem. in Opp’n to Pls.’ Mot. for Summ. J. (Docket # 

155) (Pls.’ Reply to City); Pls.’ Reply to the Federal Defs.’ Mem. in Opp’n to Pls.’ Mot. for 

Summ. J. (Docket # 156) (Pls.’ Reply to Corps).

IV. STANDARD OF REVIEW

Because this is a review of an action by a federal agency, the standard of review is 

supplied by the Administrative Procedure Act (APA). See 5 U.S.C. § 702. Under the APA, a 

district court will uphold an agency‘s decision unless it was ―arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law . . . .‖ 5 U.S.C. § 706(2)(A);13 see also 

 

13 This statutory provision reads:

To the extent necessary to decision and when presented, the reviewing court shall decide all 

relevant questions of law, interpret constitutional and statutory provisions, and determine the 

meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

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Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98 (1983) (―The role of 

the courts is simply to ensure that the agency has adequately considered and disclosed the 

environmental impact of its actions and that its decision is not arbitrary or capricious.‖). The 

First Circuit has explained that the task of a court reviewing an agency action under the APA‘s 

―arbitrary and capricious‖ standard is ―to determine whether the [agency] has considered the 

relevant factors and articulated a rational connection between the facts found and the choice 

made.‖ Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1284 (1st Cir. 1996); see also

Assoc. Fisheries of Maine v. Daley, 127 F.3d 104, 109 (1st Cir. 1997) (explaining that an agency 

action is ―arbitrary and capricious if the agency lacks a rational basis for adopting it – for 

example, if the agency relied on improper factors, failed to consider pertinent aspects of the 

problem, offered a rationale contradicting the evidence before it, or reached a conclusion so 

implausible that it cannot be attributed to a difference of opinion or the application of agency 

expertise‖); Penobscot Air Servs. v. FAA, 164 F.3d 713, 719 (1st Cir. 1999) (―The task of a court 

reviewing agency action under the APA‘s  ̳arbitrary and capricious‘ standard is to determine 

whether the agency has examined the pertinent evidence, considered the relevant factors, and 

articulated a satisfactory explanation for its action including a rational connection between the 

facts found and the choice made.‖). 

Conversely, an agency decision is not arbitrary or capricious if ―the agency decision was 

based on a consideration of the relevant factors and there has not been  ̳a clear error of judgment‘ 

. . . .‖ Dubois, 102 F.3d at 1285 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 

 

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this 

title or otherwise reviewed on the record of an agency hearing provided by statute; or,

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the 

reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it 

cited by a party, and due account shall be taken of the rule of prejudicial error.

5 U.S.C. § 706.

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U.S. 402, 416 (1971)). ―The requirement that agency action not be arbitrary or capricious 

includes a requirement that the agency adequately explain its result and respond to relevant and 

significant public comments. However, neither requirement is particularly demanding.‖ 

Penobscot Air Servs., 164 F.3d at 719 n.3 (internal citations and quotation marks omitted). 

The Court‘s review under this standard is ―highly deferential,‖ in that the agency action is 

presumed valid. Assoc. Fisheries, 127 F.3d at 109. In other words, this Court ―is not 

empowered to substitute its judgment for that of the agency.‖ Overton Park, 401 U.S. at 416; 

see also 33 Charles Alan Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8334 

(current through 2008 update) (―Arbitrary and capricious review communicates the least judicial 

role, short of unreviewability, in the word formula system.‖). Notwithstanding the deferential 

standard of review, ―it is not a rubber stamp.‖ Dubois, 102 F.3d at 1285. Rather, the Court 

―must undertake a  ̳thorough, probing, in-depth review‘ and a  ̳searching and careful‘ inquiry 

into the record.‖ Id. (quoting Overton Park, 401 U.S. at 415-16). In carrying out its task under 

the APA, the scope of the Court‘s review will include the whole administrative record. See 5 

U.S.C. § 706; Overton Park, 401 U.S. at 420 (district court review ―is to be based on the full 

administrative record that was before the [agency head] at the time he made his decision‖); 

Cousins v. Sec’y of United States Dep’t of Transp., 880 F.2d 603, 610 (1st Cir. 1989).

―[The] rubric [of summary judgment review] has a special twist in the administrative law 

context.‖ Assoc. Fisheries of Me., Inc., 127 F.3d at 109 . ―[W]here the APA standard obtains, a 

court may set aside an administrative action only if that action is arbitrary, capricious, or 

otherwise contrary to law.‖ Id. ―Thus, a reviewing court‘s role in a case governed by the APA is 

 ̳not to resolve contested fact questions which may exist in the underlying administrative record,‘ 

but rather to  ̳determine the legal question of whether the agency‘s action was arbitrary and 

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capricious.‘‖ Conservation Law Foundation v. Fed. Highway Admin., No. 06-45, 2007 U.S. 

Dist. LEXIS 64465, *40 (D.N.H. Aug. 30, 2007) (quoting Gilbert Equip. Co., Inc. v. Higgins, 

709 F. Supp. 1071, 1077 (S.D. Ala. 1989), aff’d 894 F.2d 412 (11th Cir. 1990)).

V. DISCUSSION

A. Clean Water Act Claims 

The Clean Water Act (CWA) was a ―bold and sweeping legislative initiative,‖ Dubois,

102 F.3d at 1294 (citation omitted), enacted to ―restore and maintain the chemical, physical, and 

biological integrity of the Nation‘s waters.‖ 33 U.S.C. § 1251(a). ―This objective incorporated a 

broad, systemic view of the goal of maintaining and improving water quality: as the House 

Report on the legislation put it,  ̳the word ―integrity‖ . . . refers to a condition in which the 

natural structure and function of ecosystems [are] maintained.‖ United States v. Riverside 

Bayview Homes, Inc., 474 U.S. 121, 132 (1985) (quoting H.R. Rep. No. 92-911, at 76 (1972)). 

In contrast to NEPA‘s ―focus on process,‖ the CWA ―is substantive, focusing on the integrity of 

the nation‘s water, not the permit process.‖ Dubois, 102 F.3d at 1294 (internal citation and 

punctuation omitted). 

Pursuant to Section 404 of the CWA (33 U.S.C. § 1344), the Corps ―may issue permits, 

after notice and opportunity for public hearings, for the discharge of dredged or fill materials into 

navigable waters at specified disposal sites.‖ 14 33 U.S.C. § 1344(a). Before issuing a fill permit, 

the Corps must insure that the proposed action complies with CWA § 404(b)(1) guidelines issued 

 

14 The CWA broadly defines ―navigable waters‖ to mean ―the waters of the United States, including the territorial 

seas.‖ 33 U.S.C. § 1362(7). The regulations promulgated under the CWA further define ―waters of the United 

States‖ to mean wetlands adjacent to ―waters used in interstate commerce,‖ tributaries of those waters, or territorial 

seas. 33 C.F.R. § 328.3. Here, there is no argument on either side that the Corps lacked jurisdiction over the 

wetlands at issue. Cf. Rapanos v. United States, 547 U.S. 715 (2006); United States v. Johnson, 467 F.3d 56 (1st 

Cir. 2006). 

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by the Environmental Protection Agency (EPA). 33 C.F.R. § 320.4(a)(1). Plaintiffs claim that 

the Corps failed to comply with these guidelines on several levels, including its findings on 

practicable alternatives, its balancing of the public interest, and its deference to state and local 

zoning and land use decisions.

1. Practicable Alternatives

Plaintiffs claim that the ―Corps failed to rebut  ̳the very strong presumption of the 

existence of practicable alternatives‖ and that ―there is a  ̳very strong‘ presumption that 

practicable alternatives exist when a proposed project is not water dependent, and that the agency 

carries the burden to rebut that presumption by showing the alternatives to be impracticable.‖ 

Pls.’ Mot. at 12 (quoting Compl. and Order on Pls.’ Mot. for Partial Recons. on Pls.’ Mot. for 

Prelim. Inj. at 8) (emphasis in Pls.’ Mot.). Corps guidelines provide that the agency shall not 

issue a fill permit ―if there is a practicable alternative to the proposed discharge which would 

have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other 

significant environmental consequences.‖ 15 40 C.F.R. § 230.10(a). 

EPA regulations presume that alternatives exist when the proposed project is not ―water 

dependent,‖ defined as not requiring ―access or proximity to . . . the special aquatic site in 

question to fulfill its basic purpose.‖16 40 C.F.R. § 230.10(a)(3). Thus, ―when the basic purpose 

of a project may be accomplished without  ̳access or proximity‘ to a  ̳special aquatic site . . . 

practicable alternatives that do not involve special aquatic sites are presumed to be available, 

 

15 The regulations further explain: ―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.‖ 40 C.F.R. § 

230.10(a)(2) (emphasis added). See also Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409 (9th 

Cir. 1989) (―The Corps has a duty to take into account the objectives of the applicant‘s project. Indeed, it would be 

bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it 

deems more suitable.‖) (citation omitted). 

16 Special aquatic sites are ―identified in Subpart E [of 40 C.F.R. Part 230]‖ and they possess ―special ecological 

characteristics of productivity, habitat, wildlife protection, or other important and easily disrupted ecological 

values.‖ 40 C.F.R. § 230.3(q-1). Special aquatic sites include wetlands. 40 C.F.R. § 230.41.

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unless clearly demonstrated otherwise.‘‖ Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 

1262 n.12 (quoting 40 C.F.R. § 230.10(a)(3)). In other words, ―under the CWA, it is not 

sufficient for the Corps to consider a range of alternatives to the proposed project: the Corps 

must rebut the presumption that there are practicable alternatives with less adverse 

environmental impact.‖ Id.; see also Nat’l Wildlife Fed’n, v. Whistler, 27 F.3d 1341, 1344 (8th 

Cir. 1994) (―This presumption of practicable alternatives is very strong, creating an incentive for 

developers to avoid choosing wetlands when they could choose an alternative upland site . . . .‖ 

(internal citations and quotation marks omitted)) [hereinafter Whistler].

17

 Here, it must be

presumed that alternatives existed to the chosen course of action, because the Phase II project 

does not depend on an ―aquatic site‖ for its existence. The question becomes whether any of the 

existing alternatives were practicable, such that the discharge of fill could be avoided.

The Corps contends that it weighed alternatives, including different routes and the ―no 

build,‖ and ―upgrade alternatives‖ options, but rejected them. Corps’ Opp’n at 5. The EA 

contains a section entitled ―Alternatives: Section 404 Mitigation MOA Requirements.‖ See AR 

1:34. The Corps measured alternatives against the basic project purpose, which was ―to relieve 

traffic congestion and to allow for the safe and efficient flow of traffic in this quadrant of the 

city.‖ Id. The Corps considered the proposed alternative, a road alignment that would have rerouted the proposed roadway, and an ―[u]pgrade alternative,‖ wherein the City would widen 

existing roads and add more lanes. Id. 

 

17 The Plaintiffs cite Whistler in paragraph 109 of the Complaint. In Whistler, the Corps approved conversion of 

approximately 14.5 acres of wetlands into deep water habitat, to allow a housing project boat access to the nearby 

Missouri River. 27 F.3d at 1343. The National Wildlife Federation sought a preliminary injunction, alleging that 

the Corps conducted an improper alternatives analysis. Id. at 1344. The court noted the very deferential standard of 

review, even in light of the presumption of alternatives, and emphasized that ―[c]entral to evaluating practicable 

alternatives is the determination of a project‘s purpose.‖ Id. at 1345. Ultimately, the court found that the 

alternatives analysis was proper, explaining that because this project was water-dependent, the regulatory 

presumption did not exist. Id. 

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The Corps characterized the proposed alternative, permitted by the EA at issue in this 

case, as ―crossing at a narrow point and nipping the edge of the existing wetlands.‖ AR 1:34. 

Another alternative would have cut ―straight across a wide segment of wetland,‖ resulting in a 

―greater direct impact and greater impact from the point of view of forest fragmentation.‖ Id. A 

third option – a ―no build alternative‖ that would require upgrading existing city streets – was 

found impractical because of the large number of properties affected and because it did not 

resolve pedestrian safety issues. Id.

Regarding the ―no build‖ alternative, the Corps observed that ―[u]pgrade alternatives, to 

the extent that they might relieve congestion by widening the roads and adding more lanes for 

cars, would be of dubious value in achieving the pedestrian safety that is a part of the purpose of 

the project and would have occasioned the need for taking portions of numerous properties along 

South fruit [sic] Street and Pleasant Street.‖ Id. The Corps also determined that ―[u]pgrades of 

existing streets were not practicable because of the number of properties that would be effected 

[sic] in such an urbanized part of the city.‖ Id. at 1:34-35. The Corps concluded that the 

proposed roadway was the ―least environmentally damaging practicable alternative.‖ Id. at 1:35. 

The Plaintiffs present three arguments regarding practicable alternatives. First, they 

claim that while the Corps concluded that widening South Fruit and Pleasant streets was not a 

practical alternative, the evidence:

[D]iscusses alternatives to the entire Northwest Bypass and contains no 

information either identifying or comparing the costs and benefits of just Phase II, 

with its alternatives; nor does the record contain any analysis by which 

information specific to Phase II is broken out of the 1991 study [upon which the 

Corps relied].

Pls.’ Mot. at 14 (referencing AR 5:167). In response, the Corps cites a Rizzo Associates

document that states, regarding Phase II alone:

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The necessary intersection improvement would require property acquisition from 

17 properties . . . . The upgrade impacts an additional 9 properties. More 

importantly, this alternative serves to pass more traffic through residential, 

recreation, and school areas, while the parkway diverts this traffic to a limited 

access roadway and in doing so improves operations and safety at the busy 

Pleasant Street intersection.

AR 6:18-19. This document applies to Phase II alone, without reference to the 1991 study and 

Phases I and III of the project. The record supports the Corps‘ determination that the road 

expansion alternative was not practicable in that it required significant property acquisition and 

would increase the amount of traffic moving through residential, recreation, and school areas.

Second, the Plaintiffs attack the Corps‘ rejection of the ―no build‖ option. Pls.’ Mot. at 

15. They say that the Corps defended its approval in part on the assumption that ―the project 

purpose of improved pedestrian safety is purportedly independent of congestion reduction.‖ Id. 

at 14. The Plaintiffs argue the notion that pedestrian safety can be only addressed independently 

of traffic congestion is ―unsupported.‖ Id. at 15. Next, the Plaintiffs claim that even if 

―pedestrian safety can only be addressed independently of traffic congestion,‖ the Corps failed 

―to study discrete pedestrian safety alternatives that were specifically brought to its attention in 

public comments.‖ Id. Specifically, they say that the construction of a pedestrian overpass 

combined with repaving and upgrading the sidewalks was a viable alternative to the pedestrian 

concerns. 18 Id. 

Neither argument is convincing. The Corps has not adopted the Plaintiffs‘ description of 

its own view of the pedestrian safety issue, which the Court views as somewhat opaque. 

 

18 For support, Plaintiffs point to Ms. Ludtke‘s own motion for reconsideration filed during the hearing process. AR 

4:59. They quote extensively from this motion, note that the Corps underlined portions of it, and observe that the 

Corps added some marginal comments. Pls.’ Mot. at 15-16. One marginal comment – near the portion of the 

motion that argued for consideration of a pedestrian overpass – states in handwritten notes, ―Upgrades + Pod [sic] 

Bridges.‖ AR 4:61. The Plaintiffs infer from these marginal notes and underlinings that the Corps ―clearly 

acknowledges the contention that certain practicable alternatives – ―Upgrades and pedestrian bridges‖ – had not 

been tried.‖ Pls.’ Mot. at 16. The Corps‘ underlinings and marginal notes confirm only that the Corps read the 

motion; any other inference is unwarranted. 

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Moreover, even if pedestrian safety could be alternatively addressed, the Corps concluded that 

none of the alternatives would adequately ameliorate the traffic congestion problem. Finally, the 

Corps‘ underlining and notation on Ms. Ludtke‘s motion for reconsideration to NHDES does not 

suggest that the Corps ignored the Plaintiffs‘ contentions; rather, it confirms that it did consider 

them. The Corps merely reached a different conclusion. The Corps was not arbitrary and 

capricious in finding that the upgrade alternatives were not practicable regardless of whether a 

pedestrian bridge is included, so this argument is not determinative. 40 C.F.R. § 230.10(a)(2) 

(―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.‖) 

(emphasis added).

Third, Plaintiffs describe an alternative not considered in the EA. They cite a 1996 study 

by a consulting firm, VHB/Vanasse Hangen Brustlin, Inc. (VBH), ―which would include 

realignment of the notorious 5-pronged Pleasant Street/Fruit Street/Warren Street intersection, 

and would require neither widening South Fruit Street, nor any costs and impacts to developed 

properties fronting on it.‖ Pls.’ Mot. at 14 (referencing AR 6:1134). Plaintiffs assert that this 

realignment will be required with or without Phase II construction, and that it will resolve the 

same issues that Phase II is purported to resolve.19 Pls.’ Resp. to Corps at 5. The Corps 

contends that the VHB report suggests this alternative in response to ―a different set of traffic 

concerns in downtown Concord than the City was trying to address with Phase II . . . . While the 

1996 VHB report addressed traffic issues in the Pleasant Street corridor, the report‘s analysis 

assumed that Phase II would be built.‖ Fed. Def.’s Opp’n at 6 (citing AR 6:1152). The Corps 

 

19 Plaintiffs‘ argument that the realignment will occur with or without Phase II, and that Phase II is, therefore, 

unnecessary, does not withstand analysis. The City‘s recognition that renovations of the five-prong intersection will 

be required for reasons both related to and independent from Phase II‘s purposes reflects ongoing city planning, and 

is not evidence that Phase II does not also serve a utility. 

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asserts that the realignment outlined in the VHB report would not result in a decrease in ―lefthand turns from South Fruit Street to Pleasant Street‖ and would not achieve the benefit of ―the 

overall reduction of traffic on the Clinton-South Fruit-Pleasant Streets Route.‖ Id. Plaintiffs 

reply that, according to the purpose of the project, because pedestrian safety is ―inherent‖ in 

reduced traffic congestion, ―pedestrian safety is among the purposes accomplished by relieving 

traffic congestion,‖ so the realignment is a practicable alternative that should have been 

considered. Pls.’ Mot. at 15 (emphasis in original); Pls.’ Resp. to Corps at 4. 

The VHB report itself states:

The purpose of this study is to develop a conceptual improvement plan for a 1.4 

mile section of the Pleasant Street Corridor extending from Concord Hospital to 

South Spring Street, to evaluate and recommend a preferred improvement plan for 

the critical Pleasant Street/Warren Street/South Fruit Street intersection, and lastly 

to develop a traffic management plan aimed at protecting the nearby residential 

neighborhoods from intrusion of continued traffic growth. 

AR 6:1140. The report mentions the Northwest Bypass in its section concerning ―physical 

roadway conditions,‖ and appears to describe the Bypass, including Phases II and III, as 

conditions assumed into the report. AR 6:1143. A map of the studied area includes the Future 

―Northwest By-Pass‖ in its depiction of traffic volumes. AR 6:1147-48. The report also 

assumes that the road will be built in its section on ―future conditions.‖ AR 6:1152 (stating that 

―[c]urrent plans call for the construction of the southern leg of the Bypass – from Pleasant Street 

to Clinton Street – by 1999‖). Further, the EA states that the utility of Phase II is that it ―could 

ease congestion on South Fruit Street and improve pedestrian and traffic safety by providing an 

alternate means to get from Route I-89 via Clinton Street to Concord Hospital.‖20 AR 1:32. The 

 

20 In response to the argument regarding the utility of the project concerning South Fruit Street, Plaintiffs argue that 

congestion on South Fruit Street alone is not a problem, and therefore, this reasoning is arbitrary and capricious. 

Pls.’ Resp. to Corps at 5 (citing a statement by the City‘s consultant concerning the no-build option that ―South Fruit 

Street itself would not warrant any improvements; rather the intersection of South Fruit Street/Pleasant 

Street/Warren Street would need to be improved‖); Pls.’ Am. Opp’n to City at 2. Further, the Plaintiffs suggest that 

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realignment does not meet this basic description of the purpose of the project.21 The Corps‘ 

determination that the VHB report did not create an alternative (practicable or not) to the Bypass 

was not arbitrary and capricious.

2. Public Interest Review

If the Corps determines that the proposed action complies with the Section 404(b) 

requirements, it ―will grant the permit unless issuance would be contrary to the public interest.‖ 

33 C.F.R. § 323.6(a). The ―public interest review‖ involves a weighing of the benefits of the 

proposed activity against the foreseeable detriments. 33 C.F.R. § 320.4(a)(1). The regulations 

list the factors that the agency must consider: 

(i) The relative extent of the public and private need for the proposed structure or 

work; (ii) Where there are unresolved conflicts as to resource use, the 

practicability of using reasonable alternative locations and methods to accomplish 

the objective of the proposed structure or work; and (iii) The extent and 

permanence of the beneficial and/or detrimental effects which the proposed 

structure or work is likely to have on the public and private uses to which the area 

is suited. 

33 C.F.R. § 320.4(a)(2). The regulations grant the agency flexibility in determining how to 

weigh those factors:

The specific weight of each factor is determined by its importance and relevance 

to the particular proposal. Accordingly, how important a factor is and how much 

consideration it deserves will vary with each proposal. A specific factor may be 

given great weight on one proposal, while it may not be present or as important 

on another. However, full consideration and appropriate weight will be given to 

all comments, including those of federal, state, and local agencies, and other 

experts on matters within their expertise.

 

no studies have considered or documented problems on South Fruit Street. Pls.’ Am. Opp’n to City at 2. However, 

one purpose of the project is to relieve congestion at the intersection of South Fruit, Pleasant, and Warren streets, 

which by definition, responds to a problem on South Fruit Street. 

21 In their reply, Plaintiffs take issue with the Defendants‘ reliance on ambulance or emergency vehicle transport to 

the hospital in their practicable alternatives reasoning. Pls.’ Reply to City at 6. This contention avoids the obvious. 

The Corps notes that Phase II ―could ease congestion . . . by providing an alternative means to Concord Hospital.‖ 

AR 1:32, 37. The Corps need not spell out that emergency vehicles are part of the traffic congestion that Phase II is 

designed to alleviate for better access to the hospital. 

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33 C.F.R. § 320.4(a)(3). ―Under the  ̳public interest‘ review, the Corps conducts a general 

balancing of a number of economic and environmental factors and its ultimate determinations are 

entitled to substantial deference.‖ Town of Norfolk v. United States Army Corps of Eng’rs, 968 

F.2d 1438, 1454-55 (1st. Cir. 1992) (citing Broward County, Inc. v. Myers, 831 F.2d 984, 986 

(11th Cir. 1987).

In their motion for summary judgment, the Plaintiffs argue ―not only that the Corps 

lacked sufficient information regarding the impact of constructing Phase II as originally 

conceived (a project that did not include the closure of Silk Farm/Dunbarton Road), but that the 

agency also lacked sufficient information regarding the impact of Phase II as actually proposed

(a project that does include closure of the other road).‖22 Pls.’ Mot. at 4.

a. Traffic Impacts

Plaintiffs make two public interest arguments regarding traffic: (1) that the Corps did not 

address the impacts of closing Dunbarton and Silk Roads; and, (2) that the Corps relied on 

conflicting statements about whether the project would increase or decrease congestion on 

Pleasant Street, and thus ―lacked sufficient information regarding the impact of constructing 

Phase II as originally conceived [without the closure of Dunbarton and Silk roads].‖ Pls.’ Mot.

at 4. 

 

22 Several reports and other discussions of traffic concerns in the relevant area are included in the administrative 

record: (1) Rizzo Assoc., Traffic Summary and Response to Laurie Rauseo Proposed Parkway from Clinton Street 

to Pleasant Street (Sept. 12, 2001), AR 6:14; (2) Resource Systems Group, Inc., Travel Demand Model 

Development and Traffic Impact Study for the Northwest Bypass (April 17, 1998), AR 6:582; (3) VHB/Vanasse

Hangen Brustlin, Inc., Pleasant Street Corridor Improvement Plan (July 29, 1996), AR 6:1134; (4) VHB/Vanasse

Hangen Brustlin, Inc., Concord Parking Shuttle Policy and Operations Feasibility Analysis (Feb. 1999), AR 6:530; 

(5) Resource Systems Group, Inc, The Northwest Concord Traffic Improvements Study (Nov. 4, 1996), AR 6:1011; 

and, (6) Rizzo Assoc., Inc., Traffic Impact and Access Study (April 2001), AR 6:185. Regarding the traffic studies, 

the Plaintiffs argue that ―[w]hile a CWA application related to such a controversial project certainly ought to include 

 ̳several‘ traffic studies (or at least more than one) claiming to show a benefit, only three (3) of the cited  ̳studies‘ 

even mention  ̳the impact of Phase II alone‘ (according to the Corps) . . . .‖ Pls.’ Mot. at 5. The Plaintiffs go on to 

characterize two reports as relying on earlier studies, leaving only one report upon which the other studies rely. Id. 

The Court is unaware of any law or regulation that specifies the number of studies a project must include, and 

Plaintiffs supply no support for this assertion.

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i. Impact of Dunbarton and Silk Roads

Plaintiffs argue that ―[t]he City of Concord has not done any study, which specifically 

addresses the impact of closing off Dunbarton and Silk Farm Roads and building the hospital 

connector road.‖ Pls.’ Mot. at 7 (quoting AR 2:266) (emphasis supplied by Plaintiffs). Plaintiffs 

assert that the 1998 RSG study did not address the closing of Silk Farm/Dunbarton roads because 

―the closure of these roads was only belatedly added to the project plan.‖

23

 Pls.’ Mot. at 7.

The City responds that ―Silk Farm Road is not a major public thoroughfare. It is a small 

country road running through the St. Paul‘s School campus.‖ Def. Concord Obj. at 3. It asserts 

that the ―information available from the extensive modeling performed in the numerous 

applicable traffic studies enables transportation experts to easily extrapolate the amount of Silk 

Farm Road traffic which would be diverted from Silk Farm Road to the Phase II Parkway.‖ Id. 

In addition, the City cites the 2001 Rizzo Report:

Based upon the [RSG] results of the Build and Close Silk Farm Road model and a 

review of the roadway network north of Pleasant Street, one can conclude that the 

traffic remaining on Silk Farm Road (approximately 600 vpd) is the local traffic 

bound for St. Paul‘s School. Silk Farm Road/Dunbarton Road provides a link 

between Clinton Street and Pleasant Street, and therefore the only segment of the 

bypass that would have substantial impact on this roadway segment is Phase II. 

The same diversion of traffic from Silk Farm Road to the Parkway can be 

expected for the Phase I construction as was projected for the Full Build.

AR 6:21; Def. Concord Obj. at 3.. The Corps also cites the same report, stating that ―Plaintiffs 

incorrectly assert that the RSG study does not address the traffic impacts associated with the 

 

23 The Plaintiffs further characterize the roads as a ―closure of a major public thoroughfare.‖ Pls.’ Mot. at 8. First, 

although the term ―closing‖ is used by the parties and the experts, it seems to be a slight misnomer. The roads will 

be generally closed to the public, but open to individuals with business at St. Paul‘s School, so to a more limited 

extent, they will continue to carry some of the current traffic load. The Rizzo Report also states that the City will 

retain permanent easements for public passage of pedestrian, bicycle, and emergency traffic. AR 6:17. Second, 

Plaintiffs cite Penobscot Air Servs., 164 F.3d 713 at n.3 for the proposition that the Corps must respond to 

― ̳relevant‘ and  ̳significant‘ public comments.‖ Id. (citation omitted). But, the authority goes on to state that the

―requirement is [not] particularly demanding.‖ Id. (citation omitted). Here, the record shows that that Silk and 

Dunbarton Roads would be closed, AR 6:16-17, and the Corps was not arbitrary and capricious in finding that there 

are traffic benefits of the project without requiring further study of the closure of those two roads.

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closures of Dunbarton and Silk Farm Roads.‖ Corps’ Opp’n at 3; Corps’ Mot. at 7. The Corps 

further states that ―while the closure of Silk Farm Road was not modeled in combination with the 

construction of Phase II alone, it is only Phase II that would be impacted by the closure of Silk 

Farm Road, so the results of the model run with Phase II and III and the closure of Silk Farm 

Road can easily be extrapolated to Phase II as well.‖ Corps’ Mot. at 7 (citing AR 6:20-21, 595-

96).

The RSG report separately considered (a) traffic for Phase II alone, and also, in relevant 

part, (b) the full Northwest Bypass together with the closure of Silk Farm and Dunbarton Roads. 

AR 6:592. Thus, it did not explicitly consider the combination of Phase II alone together with 

the Silk Farm Road closure. However, there is evidence on the record that the results of such a 

combination were extrapolated from earlier reports and the closings will not adversely impact the 

project‘s ability to fulfill its purpose.24 AR 6:20-21. Contrary to Plaintiffs‘ protestations, this 

―extrapolation‖ is not an arbitrary and capricious analysis of the traffic impact of closing Silk 

Farm and Dunbarton Roads; instead it is a common-sense consideration of the available facts.

ii. General Impacts of Phase II

Plaintiffs first assert that the Corps relies upon ―vague generalized references, by a City 

consultant or employee, to others‘ studies, without identifying what those studies are, or without 

producing studies actually showing what the consultant or employee claim they have found, 

thereby leaving the Corps without the factual information necessary to reach its conclusion . . . .‖ 

 

24 Plaintiffs cite Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d 1152, 1186 (10th Cir. 2002), 

for the assertion that the Corps must ―delineate the information it purports to have relied upon, in  ̳detailed, clear

and convincing‘ fashion,  ̳with independent verification by the [Army Corps].‖ Pls.’ Mot. at 12. However, these 

statements concern the heavier standard borne by the Corps regarding practicable alternatives, not conclusions 

regarding the impacts of the project itself. Id. Further, at issue in Utahns was the cost of a particular alternative, 

and the Corps admitted to having no records regarding those costs. Utahns, 305 F.3d at 1165. In Utahns, the Corps 

also did not respond to specific information suggesting an alternative might not have been as cost-prohibitive as the 

Corps suggested. Id. at 1166. Here, Plaintiffs have provided no evidence that the Corps was incorrect in its 

conclusions regarding the impacts of the Silk Farm Road and Dunbarton Road closings. 

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Pls.’ Mot. at 5. They claim that the Corps‘ ―repeated invocation of  ̳the City‘s extensive traffic 

studies‘ is entirely apocryphal.‖ Id. (internal citation omitted). The Rizzo Report dated 

September 12, 2001, which is part of the administrative record, belies the Plaintiffs‘ contentions. 

The Report lists seven separate traffic studies completed by three firms, including two by Rizzo 

itself. AR 6:19. Throughout the Rizzo Report, the author repeatedly refers to findings in the 

other reports. The fact that the Rizzo Report refers to and summarizes those reports does not 

render the evidence suspect or incompetent anymore than a physician‘s reliance on a 

radiologist‘s report compromises his professional opinion. 

Plaintiffs also assert that the Corps relied upon conflicting conclusions regarding whether 

traffic on Pleasant Street will increase or decrease.25 Pls.’ Mot. at 6 (citing AR 2:267, 6:19, 23). 

For this assertion, they cite their own expert, Laurie Rauseo, and point to her concerns about the 

conclusions in the RSG traffic volume study. Pls.’ Mot. at 6. But, the Court has already 

determined that the Corps was not required to rely upon the Plaintiff‘s expert. Order on Pls.’ 

Mot. for Prelim. Inj. at 14 (―The existence of opposing views does not render the Corps‘s

decision arbitrary and capricious.‖); Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 

 

25 In a related argument, the Plaintiffs argue that the project will not fulfill what they claim is one of the principle 

project purposes: a decrease in traffic on smaller neighborhood streets. Pls.’ Mot. at 6; Pls.’ Am. Opp’n to City at 2; 

AR 5:214 (―The Northwest Bypass . . . will ameliorate congestion, traffic flow, and pedestrian safety on existing city 

streets in neighborhoods adjacent to downtown . . . .‖). There appears to be some question as to what the project 

purposes are. The citations provided by the Plaintiffs are (1) what is referred to in the consolidated index as a ―Draft 

Statement of Purpose and Need,‖ dated September 4, 1991; and (2) a letter that refers to an enclosed ―Purpose and 

Need Statement‖ but the statement itself is not included as an attachment. Pls.’ Mot. at 6 (citing AR 5:214-16 and 

AR 1:139). The purpose statement that appears to have been submitted to the Corps is included in a letter from 

William Lawless to Martha Burnham on October 29, 1991. AR 5:160. It states that the ―basic project purpose‖ is 

―to relieve traffic congestion and to allow for the safe and efficient flow of local traffic through the northwest side of 

the City of Concord, New Hampshire.‖ Id. An earlier statement that was edited by hand appears to include more 

specific references to residential streets and school zones. AR 1:163. The EA itself reflects the October 29 purpose. 

AR 1:32 (―The purpose of the work is to relieve traffic congestion, and to allow the safe and efficient flow of traffic 

in this quadrant of the city. Improved pedestrian safety is an inherent part of the basic project purpose.‖). The Court 

relies upon the statement of purpose in the EA, and therefore, need not address the Plaintiff‘s specific claims 

regarding traffic on smaller neighborhood streets. At any rate, the Corps responds to the Plaintiffs arguments by 

stating that it ―considered  ̳cut-through traffic,‘ and found that Phase II would not attract additional traffic to 

neighborhoods.‖ Corps’ Mot. at 7. The Corps further asserts that ―no traffic analysis – including a previous 

submission by Plaintiffs‘ traffic consultant – indicates that Phase II will increase  ̳cut-through traffic.‘‖ Id. (citing 

AR 2:265; AR 6:23-24).

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F.2d 1127, 1144 (10th Cir. 1991) (―Conflicting expert opinion, however, is not sufficient to 

allow a reviewing court to conclude the agency decision was arbitrary, capricious or an abuse of 

discretion, nor is such evidence sufficient to overcome the presumption of regularity and 

correctness afforded to the [agency] decision.‖). 

The Plaintiffs also rely upon the 2001 Rizzo Associates Report, which states in relevant 

part that ―Phase II removes traffic from South Fruit Street, Pleasant Street and Dunbarton Road, 

provides essential safety benefits and enhances the neighborhoods adjacent to these corridors‖ 

and that ―[t]he additional traffic is what is expected with the new parkway. The direct access to 

the medical complex increases the vehicle trips to and from the south and west. In turn this 

provides for increased capacity on other road segments as volumes decline.‖ AR 6:19, 23. The 

Federal Defendants interpret this statement to mean that ―while more vehicles will use Phase II 

to access the Hospital (leading to higher volume overall), congestion will decline on other roads 

like South Fruit Street and Pleasant Street because traffic volume on those roads will decline.‖ 

Corps’ Mot. at 7. The Plaintiffs respond that the document relied upon by the Corps is ―an 

opinion letter from a City consultant, rather than . . . any of the purported studies themselves.‖ 

Pls.’ Resp. to Corps at 3.

The Federal Defendants further state that the reports on the record find that traffic volume 

at the ―difficult Pleasant-Fruit-Warren Streets intersection‖ will be reduced and that ―the traffic 

volume on Clinton, South Fruit, and Pleasant Streets to the east of Phase II, where vehicles now 

travel to reach Concord Hospital when exiting I-89, was predicted to be lower with Phase II than 

without it.‖ Fed. Def.’s Opp. at 2 (citing AR 6:18, 594-96). The Plaintiffs argue that the City‘s 

consultant made this assertion without factual support. Pls.’ Mot. at 6. But, this is incorrect. 

The consultant‘s assertion summarizes the findings of other traffic reports and expressly refers to 

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the findings of a ―detailed traffic study prepared by Resource Systems Group, dated November 

1996.‖ AR 6:19. 

The record shows that the Corps was not arbitrary and capricious in determining that 

though traffic from the South and West of the hospital will increase, current traffic problems will 

be alleviated to the North and East. This conclusion meets the project‘s purpose to ―relieve 

traffic congestion, and to allow the safe and efficient flow of traffic in this quadrant of the city.‖ 

AR 1:32. Further, the Corps‘ reliance on the Rizzo Associates‘ summary of other traffic studies 

was not arbitrary and capricious in the context of determining the traffic benefits of Phase II.

b. Balancing Recreational and Educational Resource Impacts

Plaintiffs argue that the Corps failed to ―give sufficient weight to recreational and 

educational resource impacts.‖ Pls.’ Mot. at 8. Emphasizing both the physical activity 

opportunities offered by the Turkey River White Farm Trails system and the educational 

opportunities offered by the Concord School District‘s School Environmental Education Project 

(Project SEE), Plaintiffs claim that the Corps did not sufficiently consider the impacts to these 

uses. 

i. Recreational Impacts

Plaintiffs note that while the road would transect two trails at disparate points, the City 

proposes a single tunnel under the road. Pls.’ Mot. at 9. Plaintiffs also refer to comments by the 

Concord Conservation Commission requesting additional measures to maintain the trails system, 

and state that the Corps ―minimizes the degree of recreational impact, in conclusory fashion.‖ 

Pls.’ Mot. at 10. The Corps responds that it considered these impacts in the EA, which states that 

the area ―provides recreation and open space for people who reside around the area and many 

who come out from nearby parts of the city to use it.‖ Fed. Def.’s Opp. at 4 (quoting AR 1:33). 

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In addition, the City asserts that the Corps weighed the impacts to recreational resources, 

requiring the tunnel under the bypass, and finding that some recreational uses would be ―slightly 

diminished.‖ Concord Obj. at 4. In their reply, the Plaintiffs cite a letter from Mary Louise 

Hancock, Chair of the Turkey River Basin Trust, which states that the Trust ―opposes the 

building of any roadway between Clinton and Pleasant Streets.‖ AR 2:484. 

Concerning recreational opportunities, the Corps clearly weighed the impacts of the 

project and included at least one mitigating element in the EA – the tunnel. The EA states:

Having to see and cross under a new road to get out into the lager [sic] Turkey 

river floodplain tract, beyond the loom of city lights, would in many peoples [sic] 

mind [sic] diminish the value of the recreational experience to some degree. 

Hikers, bikers and cross country skiers will have to trek west of the bypass to 

have the sense that they are truly out in the country. If memorial field is used for 

a point of access it will take a little longer to get out into the country.

AR 1:37. The Corps considered the recreational impacts of the project, ―evaluated relevant 

factors and reached a reasoned decision.‖ Van Abbema v. Fornell, 807 F.2d 633, 636 (7th Cir. 

1986); Audubon Naturalist Soc’y of the Cent. Atlantic States v. United States Dep’t of Transp., 

Nos. 06-3386, 07-1480, 2007 U.S. Dist. LEXIS 84051, at *110 (D. Md. Nov. 8, 2007) (―The law 

only requires that the Corps consider the factors and make a determination based from that 

analysis.‖).

ii. Educational Impacts

The Plaintiffs assert that the EA provides ―no discussion of the road‘s educational

impact.‖26 Pls.’ Mot. at 12. The EA states that the area ―serves as a convenient outdoor class 

 

26 Plaintiffs also claim that the Corps ―confess[ed]‖ ―complete ignorance of recreational (and educational) impacts in 

its answer.‖ Pls.’ Mot. at 10. The Corps responds that ―Plaintiffs mischaracterize the Federal Defendants‘ Answer . 

. . . In its Answer, the Federal Defendants appropriately responded that they lack knowledge or information 

sufficient to form a belief as to the truth of some of Plaintiffs‘ broadest allegations, for example that Project SEE is 

 ̳unique and irreplaceable.‘‖ Fed. Def.’s Opp. at 5. The Court rejects the Plaintiffs‘ attempt to extrapolate from the 

Corps‘ initial ―without knowledge‖ answer to some allegations in their 140 page Complaint a conclusion that the 

Corps was wholly ignorant of the allegations. 

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room [sic] for the schools located nearby,‖ and that ―[d]ue to its proximity to the school system it 

is also used in environmental education.‖ AR 1:33. The Corps responds with a record statement 

by the City that ―[t]he educational value and access to these and other wetlands would not be 

expected to be negatively impacted by the Bypass; in fact these wetlands will be more easily 

accessible due to the construction of the sidewalk and bicycle path.‖ AR 6:156. The City claims 

that Plaintiffs cite no record evidence regarding negative impacts to school programs. City’s 

Obj. at 5. In their response, the Plaintiffs point to a description of the Project SEE, which 

describes the school system‘s use of White Farm and the surrounding areas, and states that ―[t]he 

area is used extensively by the school district as an outdoor science laboratory for kindergarten 

to high school grade levels.‖ Pls.’ Reply to City at 4; AR 2:586. The document, for which the 

author is not specified, also states that Project SEE works with the Turkey River trust, with a 

joint purpose to ―preserve the area in perpetuity as an open space resource for the Concord 

community.‖ Id. 

Based on this record, considering both the City‘s statements on the record that the road 

would improve educational opportunities and the document regarding Project SEE, the Corps 

duly considered the educational impacts of the Parkway and was not arbitrary and capricious in 

its weighing of the Parkway‘s impact on these resources.

3. Deference to State and Local Zoning and Land Use Decisions

Plaintiffs claim that the Corps gave undue deference to state and local decisions in its 

reliance on 33 C.F.R. § 320.4(j)(2) and (4). In pertinent part, the regulations carve out a specific 

role for state and local decisionmaking:

 

Moreover, the Court must consider the record before the Corps to decide whether the EA is arbitrary and 

capricious. Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir. 1992) (―[T]he court must  ̳look to see if the agency 

decision, in the context of the record, is too  ̳unreasonable‘ (given its statutory and factual context) for the law to 

permit it to stand.‖) (quoting Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985)) (emphasis added by the Court in 

1992).

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The primary responsibility for determining zoning and land use matters rests with 

state, local and tribal governments. The district engineer will normally accept 

decisions by such governments on those matters unless there are significant issues 

of overriding national importance. Such issues would include but are not 

necessarily limited to national security, navigation, national economic 

development, water quality, preservation of special aquatic areas, including 

wetlands, with significant interstate importance, and national energy needs. 

Whether a factor has overriding importance will depend on the degree of impact 

in an individual case.

33 C.F.R. 320.4(j)(2). If there are no ―overriding national factors of the public interest . . . a 

permit will generally be issued following receipt of a favorable state determination provided the 

concerns, policies, goals, and requirements as expressed in 33 CFR parts 320-324, and the 

applicable statutes have been considered and followed . . . .‖ Id. § 320.4(j)(4). The language in 

the EA mirrors these two sections of regulation, and states that ―[t]he criteria for permitting the 

discharge have been met . . . . The decision to use the land, for recreation or a road, properly 

belongs with the City and the State.‖ AR 1:42. 

At the outset, clarification is required concerning what these sections of the Federal 

Regulations allow the Corps to do. The sections cited by the Plaintiffs allow the Corps to defer 

to a ―favorable state determination‖ only when federal requirements are also met. 33 C.F.R. § 

320.4(j)(4). Thus, the Corps‘ decision must meet not only the other relevant sections of 

regulation but also related federal statutes. Id. Plaintiffs‘ arguments appear to claim that the 

Federal Government deferred the sum total of its decisionmaking responsibilities to state and 

local governments. This is assertion does not hold water. The Federal Government deferred to 

the state and local governments regarding land use and zoning, but made its own determinations 

regarding the federal requirements required for a section 404 wetlands permit.

Plaintiffs first argue that ―the defendant City‘s decision to construct Phase II was not a 

zoning or land use decision falling within the jurisdictional exception intended by 33 C.F.R. § 

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320.4(j)(2).‖ Pls.’ Mot. at 17. Citing the fact that no zoning decision or land use ordinance was 

involved with the project, the Complaint states that ―[t]he only decision was to construct a road 

with two private partners through wetlands, an area in which Army Corps responsibility is 

primary, and land use impacts are secondary effects outside the scope of jurisdictional exception 

contained in 33 C.F.R. § 320.4(j)(2).‖ Compl. ¶ 291. The Corps responds that the decision to 

build the road is a ―land use‖ decision. Fed. Def.’s Opp’n at 8. Plaintiffs argue that the Corps 

definition ―would swallow whole much of the Army Corps‘ independent jurisdiction.‖ Pls.’ 

Reply to Corps at 4. 

This claim is a non-starter. While the term ―land use‖ is not defined in the regulations, 

Concord‘s decision to build a road on its property is a ―land use‖ determination, and the 

NHDES‘ approval of the project is undoubtedly a land use decision. AR 6:48, 4:67-69; See 

Hoosier Envtl. Counsel, Inc. v. United States Army Corps of Eng’rs, 105 F. Supp. 2d 953, 988 

(S.D. Ind. 2000); Sierra Club v. United States Army Corps of Eng’rs, 450 F. Supp. 2d 503, 532-

33 (D.N.J. 2006). The Corps cannot second guess the City‘s decision to build a road merely 

from a land use perspective. It can and does analyze the project based upon the considerations 

required by § 404 and the relevant regulations. Furthermore, the Corps‘ jurisdiction is not at 

issue here – the regulations merely require it to take into account state and local decisionmaking, 

and then draw its own conclusion based on several factors, including the various impacts of the 

proposal. 

Second, Plaintiffs argue that the project falls within the ―significant issues of overriding 

national importance‖ exception to § 320.4(j)(2), because it is covered by the exemption for 

―preservation of special aquatic areas, including wetlands, with significant interstate 

importance.‖ Pls.’ Mot. at 17 (quoting 33 C.F.R. § 320.4(j)(2)). The Corps made the 

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determination that there is not an ―overriding national factor‖ in this case. AR 1:42. This 

decision may be made ―depend[ing] on the degree of impact in an individual case,‖ and is owed 

deference by the Court. 33 C.F.R. § 320.4(j)(2). Because the Corps found that the degree of 

impact on the wetlands ―are minor, unavoidable and adequately mitigated,‖ its decision that there 

is not an ―overriding national factor‖ is not arbitrary and capricious. AR 1:42; 33 C.F.R. § 

320(j)(2). 

Third, relying on Park v. United States, 286 F. Supp. 2d 201 (D.P.R. 2003), in which a 

disgruntled developer brought suit after being granted state permits but having the federal 

permits withheld by the Corps, Plaintiffs argue that deference based on § 320.4(j)(2) is an error 

of law. Pls.’ Mot. at 17. In Park, the court rightly stated that ―[t]o posit that issuance of state 

permits guarantees the issuance of the Corps‘ permit would serve to render the agency irrelevant 

and would annul its independent criteria.‖ 286 F. Supp. at 208. In this case, the Corps did not 

merely accept the conclusions drawn by state and local organizations, it analyzed the factors 

under the regulations and concluded that ―[a]lternatives have been considered, the impacts have 

been minimized to the maximum extent practicable and the applicant proposes to mitigate the 

unavoidable loss to the maximum degree practicable.‖ AR 1:42. 

Fourth, Plaintiffs claim that the Corps substituted the State‘s decisionmaking for its own. 

However, as noted, the Corps incorporated state and local land use and zoning considerations 

into its larger § 404 permitting decision. Plaintiffs make specific allegations regarding the 

Corps‘ reliance on state and local decisions elsewhere in their complaint and motions based upon 

specific Corps decisions, and the Court considers those assertions as they arise topically. 

However, Plaintiffs‘ blanket argument regarding deference based upon 33 C.F.R. §§ 320.4(j)(2), 

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(j)(4) is not convincing; the Corps did not act arbitrarily in its deference to state and local 

decisionmakers on land use issues.

Finally, in its motion, the Corps cites paragraphs 146 and 157 of the Plaintiff‘s Complaint 

as asserting that the Plaintiffs engaged in ―issues prejudgment‖ and did not conduct an 

independent review of Phase II. Corps’ Mot. at 9 (citing Compl. ¶¶ 146, 157). The Corps asserts 

that it is allowed to ―rely on studies done by the applicant or consultants, as long as the agency 

undertakes an independent evaluation of the information submitted and accepts responsibility for 

its accuracy.‖ Id. at 9-10 (citing 40 C.F.R. § 1506.5(a); 33 C.F.R. Part 325, App. B, § 3). The 

Corps further asserts that it ―independently evaluated relevant studies supplied by the City, and 

considered all relevant factors including conservation, aesthetics, general environmental 

concerns, wetlands and historic properties.‖ Id. at 10. Plaintiffs do not respond to these 

arguments either in their motion or their responses. Based upon the record, the Court cannot find 

that the Corps failed to meet its duty to ―independently evaluate the information submitted by the 

applicant . . . .‖ 40 C.F.R. § 1506.5(a).

4. Wetland Mitigation

The Plaintiffs assert that the Corps did not follow the provisions of its own Regulatory 

Guidance Letter (RGL) 02-2, which states that ―[u]nder existing law, the Corps requires 

compensatory mitigation to replace aquatic resource functions unavoidably lost or adversely 

affected by unauthorized activities,‖ and that ―[p]reservation does not result in a gain of wetland 

acres and will be used only in exceptional circumstances.‖ AR 7:21, 24. The RGL continues, 

―[i]f preservation alone is proposed as mitigation, Districts will consider whether the wetlands or 

other aquatic resources: 1) perform important physical, chemical or biological functions, the 

protection and maintenance of which is important to the region; and, 2) are under demonstrable 

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threat of loss or substantial degradation from human activities‖ not caused by the applicant or 

otherwise avoidable. Id. at 7:24-25. 

Contrary to the Plaintiffs‘ premise, in its Preliminary Injunction Order, the Court 

concluded that RGLs are not binding on the Corps. Northwest Bypass II, 470 F. Supp. 2d at 51. 

It is true that the differences between binding substantive rules, and interpretive rules or policy 

statements are, at times, hazy.

27 Substantive rules are binding, while ―interpretative rules, 

general statements of policy, or rules of agency organization, procedure, or practice‖ are 

generally not. 5 U.S.C. § 553(b)(3)(A); Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 

1997); Nat’l Latino Media Coal. v. F.C.C., 816 F.2d 785 (D.C. Cir. 1987). Accordingly,

[a]n agency policy statement does not seek to impose or elaborate or interpret a 

legal norm. It merely represents an agency position with respect to how it will 

treat – typically enforce – the governing legal norm. By issuing a policy 

statement, an agency simply lets the public know its current enforcement or 

adjudicatory approach. The agency retains the discretion and the authority to 

change its position-even abruptly-in any specific case because a change in its 

policy does not affect the legal norm. 

Syncor Int’l Corp., 127 F.3d at 94. 

There are two means of determining whether ―an agency has issued a binding norm or 

merely a statement of policy.‖ Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006). 

One requires the court to ask whether the agency has ―(1)  ̳impose[d] any rights and obligations,‘ 

or (2)  ̳genuinely [left] the agency and its decisionmakers free to exercise discretion.‘‖ CropLife 

Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003) (quoting Cmty. Nutrition Inst., 818 F.2d at 946)

(internal quotations omitted). The other is to look to the agency‘s intent, considering three 

factors: ―(1) the agency‘s own characterization of the action; (2) whether the action was 

published in the Federal Register or the Code of Federal Regulations; and (3) whether the action 

 

27 For example, see Community Nutrition Institution v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987), which explains

that courts and commentators have described the distinction between substantive rules, interpretative rules, and

policy statements as, inter alia, ―tenuous,‖ ―fuzzy,‖ ―blurred,‖ ―baffling,‖ and ―enshrouded in considerable smog.‖

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has binding effects on private parties or on the agency.‖

28

 Wilderness Soc’y, 434 F.3d at 595 

(quoting Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999)). 

First, the RGL does not ―impose any rights and obligations,‖ and continues to leave the 

agency free to exercise discretion when making wetland mitigation determinations. It provides a 

guideline for how mitigation decisions should be made, but not the outcome of those 

determinations. For example, it states that districts ―will consider‖ certain factors when 

determining whether a preservation credit will be allowed to be the sole form of mitigation, but it 

does not dictate a particular outcome. AR 7:24. Second, considering the agency‘s intent, the 

RGL states that it ―does not modify existing mitigation policies, regulations, or guidance.‖ AR 

7:21. It lists, in the appendix, existing authorities upon which the RGL is based, and states that it 

―does not establish new requirements.‖ AR 7:32. It was not published in the Federal Register or 

the Code of Federal Regulations, and the language in the RGL does not ―evidence an intent on 

the part of the agency to limit its discretion and create enforceable rights.‖ Wilderness Soc’y, 

434 F.3d at 596. The fact that the RGL ―channels‖ the discretion of Corps employees is not, in 

itself, dispositive. Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 600 (5th Cir. 

1995).

Thus, RGLs are ―issued without notice and comment and do not purport to change or 

interpret the regulations applicable to the section 404 program . . . [and] are not binding, either 

upon permit applicants or Corps District Engineers.‖ Envtl. Def. v. United States Army Corps of 

Eng’rs, No. 04-1575 (JR), 2006 U.S. Dist. LEXIS 47969, at *22 (D.D.C. July 14, 2006); Hobbs 

v. United States, No. 90-1861, 1991 U.S. App. LEXIS 27696, at *12-14 (4th Cir. Nov. 8, 1991) 

(concluding that the EPA‘s wetland delineation manuals are interpretive guidance documents 

 

28 Courts have noted that these two tests may overlap, especially as to the last part of the Molycorp test. See Gen. 

Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002).

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without the force of law); see also United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1168 

(9th Cir. 2000) (finding that an Engineering Regulation is interpretive rather than substantive 

because ―it was not intended to have the force of law, but was instead a policy statement to guide 

the practice of district engineers‖); Mark A. Chertok, Federal Regulation of Wetlands, SM092 

American Law Institute – American Bar Association Continuing Legal Education 1235 (2007)

(―In addition to its permit issuances, the Corps enacts regulations under Section 404 and 

publishes non-binding Regulatory Guidance Letters ( ̳RGLs‘).‖). The Plaintiffs have not made a 

showing that RGLs should be considered binding.

The Plaintiffs argue that the responsibility to mitigate wetlands is also found in another 

binding document, the Memorandum of Agreement Between the Environmental Protection 

Agency and the Department of the Army Concerning the Determination of Mitigation Under the 

Clean Water Act Section 404(b)(1) Guidelines (Feb. 6, 1990), available at

http://www.usace.army.mil/cw/cecwo/reg/mou/mitigate.htm (last visited April 21, 2008). The 

Memorandum of Agreement states that ―[s]imple purchase or  ̳preservation‘ of existing wetlands 

resources may in only exceptional circumstances be accepted as compensatory mitigation. EPA 

and Army will develop specific guidance for preservation in the context of compensatory 

mitigation at a later date.‖ Id. Without considering whether the MOA is binding on the Corps, 

this document does not provide guidance for how to determine when wetland preservation will 

suffice, and, according to the Corps, ―RGL 02-02 is the  ̳specific guidance‘ that supersedes the 

memorandum‘s general terms.‖ Fed. Def.’s Opp’n at 10. 

Nonetheless, the Corps followed RGL 02-2 in this case. The Corps found that the 

preserved areas ―perform important physical, chemical or biological functions . . . .‖ AR 7:24-

25. The mitigation plan preserves seventy-six acres of land; approximately half is wetland and 

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the other half upland. The Corps notes that the preserved areas ―contribute [to] habitat diversity‖ 

and ―will contribute to the preservation of the general area and is considered to contribute to the 

environmental health of the watershed.‖ AR 1:35. The Corps further found that that one of the 

parcels protected ―will preserve the value of Turkey Pond.‖ Id. Other preserved areas include 

farm fields that ―will add to the diversity of habitat in the area and are a diminishing resource in 

this part of the watershed area,‖ parcels that include wetland and vernal pools. Id. While the 

Corps considered one site as a ―wetland establishment area,‖ it determined that ―because of the 

extensive wetlands in the Turkey River Basin, the extensive excavation that would be necessary 

to insure adequate soil saturation, the small size of the area and the steep slopes that would 

result, it would not be worth the effort and expense and that simply preserving the farm field 

would be adequate.‖ Id.

Also consistent with RGL 02-02, the Corps considered whether the properties were 

―under demonstrable threat of loss or substantial degradation from human activities‖ not caused 

by the applicant or otherwise avoidable. AR 7:25. The Corps reviewed the mitigation plan and 

noted that within the seventy-six acres set aside for mitigation, Concord Hospital, during Phase I, 

had agreed to preserve twenty-eight acres north of the hospital complex, the so-called site 

number eighteen. AR 1:35. Even though the Hospital made this agreement during Phase I, the 

Corps considered it as mitigation in Phase II, because ―the preservation of site # 18 was also 

intended to be a part of the overall mitigation package for the entire Northwest Bypass Project.‖ 

Id. The record contains one study that contemplates the hospital‘s expansion by approximately 

120,000 square feet of office space.29 Fed. Def.’s Opp’n at 9; AR 5:10; AR 6:1152. The Corps 

 

29 It is true, as Plaintiffs‘ claim, that the record does not expressly state where and when Concord Hospital‘s 

expansion is anticipated. The Plaintiffs go on to claim that the record, therefore, does not sustain the Corps‘ 

determination of ―demonstrable threat.‖ The Court agrees that it would have been helpful if there had been more 

record evidence of the immediacy of Hospital‘s expansion plans and the likelihood that the Hospital planned to 

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further found that some of the areas preserved could have been developed in the future without a 

Corps permit. AR 1:35. Given the record evidence, the Corps was not unreasonable in 

determining that the mitigation package was adequate. N. Mun. Distributors Group v. FERC, 

165 F.3d 935, 941 (D.C. Cir. 1999) (―Upon examining the record the court inquires whether it 

can discern a rational connection between the facts found and the choice made by the [agency] . . 

. . ‖).

RGL 02-2 states that ―[i]f preservation alone is proposed as mitigation, Districts will 

consider whether the wetlands or other aquatic resources‖ fulfill the important function and 

demonstrable threat of loss requirements. AR 7:24-25. Thus, the document does not provide a 

mandatory outcome, but instead provides guidance as to how the Corps should consider various 

mitigation practices. In this case, the Corps did consider both the ―physical, chemical, or 

biological functions‖ of the preserved properties and whether the properties to be preserved were

under ―demonstrable threat of loss or substantial degradation from human activities.‖ AR 7:24-

25. The Court will not replace its consideration of these guidance materials for the Corps‘ own 

expertise and concludes that the Corps was not arbitrary and capricious in finding that the 

preserved areas ―perform important physical, chemical or biological functions‖ and that they 

were under ―demonstrable threat of loss or substantial degradation.‖ Id. 

5. Effluent Limitations – 33 U.S.C. § 1341(d) Compliance

Plaintiffs claim that the permit ―requires the defendant City to comply with two (2) 

substantially conflicting effluent limitations.‖ Compl. ¶ 339. The gist of this claim is that the 

amount of land the City is authorized to fill differs under the state and federal permits. The state 

water quality certification (WQC) authorized the City to fill 4.39 acres, while the federal § 404 

 

develop site # 18. But, the evidence does confirm the existence of the Hospital‘s expansion plans and the proximity 

of site # 18. AR 5:464-65. In view of the Court‘s standard of review, it cannot conclude that it was unreasonable 

for the Corps to consider the preservation of this area in evaluating mitigation issues. AR 5:10, 465; AR 6:1152. 

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permit (issued by the Corps) limits filling to 3.5 acres. Id. ¶¶ 334, 336. Plaintiffs claim that 

―because the description of the effluent acreage limitation in the [WQC] is incorporated as a 

condition in the [404 Permit], the description of the effluent acreage limitation required by 

section 1341(d) in the [404 permit] contains an unresolved ambiguity.‖ Pls.’ Resp. to Corps at 7 

(citation omitted). Plaintiffs claim that this violates 33 U.S.C. 1341(d), and is arbitrary and 

capricious.30

The administrative record confirms Plaintiffs‘ factual assertions.31 However, the Corps

explained the reason for the discrepancy: 

The original alignment for Phase II required filling 4.39 acres, because it avoided 

the Hillside Condominiums, and the State issued a water quality certification for 

this alignment, concluding that it would not impair water quality. However, the 

City revised the alignment to pass closer to those condominiums, so as to fill 

fewer wetlands, and the revised permit application to the Corps reflected the 

lower acreage. Because the Corps‘ authorization is to fill fewer acres, there is no 

conflict with the State‘s water quality certification.

Corps Opp’n at 14 (citations omitted). 

The Corps also asserts that the City must meet the actual standards set forth in the WQC 

regardless of the number of acres filled under the 404 permit. Id. This is supported by the 

purpose of § 1341: ―to preserve the authority for the States to set standards that are more 

stringent than the level of protection afforded in a federal permit, and, therefore, the purpose of 

this section is to supplement not supplant the requirements for obtaining a federal permit.‖ Nat’l 

Ass’n of Home Builders v. United States Army Corps of Eng’rs, 453 F. Supp. 2d 116, 134 

 

30 33 U.S.C. § 1341(d) states:

Any certification provided under this section shall set forth any effluent limitations and other 

limitations, and monitoring requirements necessary to assure that any applicant for a Federal 

license or permit will comply with any applicable effluent limitations and other limitations . . . and 

with any other appropriate requirement of State law set forth in such certification, and shall 

become a condition on any Federal license or permit subject to the provisions of this section.

Id.

31 The NHDES WQC states: ―Phase II will require the filling of 4.39 acres (191,228 ft) of wetland . . . .‖ AR 4:50. 

In its project description, the Corps permit states: ―Place fill in approximately 3.5 acres of wetland . . . .‖ AR 1:10. 

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(D.D.C. 2006) (stating, regarding a nationwide permit, that ―nothing in Section 401 implies that 

a State‘s limitations or requirements allows that permit seeker to avoid the [Nationwide Permit]-

specific requirements to obtain a permit‖).

The Corps asserts that the Plaintiffs misapply § 1341(d) because they refer to the fill of 

wetlands as ―an effluent acreage limitation.‖ Regardless of how the Plaintiffs refer to the filling 

of wetlands, § 1341(d) ―allows the State to impose  ̳other limitations‘ on the project in general to 

assure compliance with various provisions of the Clean Water Act and with  ̳any other 

appropriate requirement of State law.‘‖ PUD No. 1 of Jefferson County v. Washington Dep’t of 

Ecology, 511 U.S. 700, 711 (1994). These ―other limitations . . . become a condition on any 

Federal license or permit subject to the provisions‖ of § 1341. 33 U.S.C. § 1341(d). Here, where 

the federal requirement is more stringent than the state requirement, there is no ―ambiguity‖ as to 

what standard the permittee must follow.32

B. Scope of the Environmental Assessment & Cumulative Impacts

Plaintiffs charge the Corps with ―incremental segmentation,‖ meaning that the Corps 

considered the impacts of Phase II alone when it should have considered the impacts of the entire 

Northwest Bypass as a whole.

33 As described above, the Northwest Bypass project initially 

envisioned three ―Phases.‖ Phase I ―entailed widening Pleasant Street, to provide turning lanes, 

a traffic signal at the intersection and a new hospital complex access road.‖ AR 1:32. Phase I 

 

32 Plaintiffs also assert that the Corps failed to ―describe the effluent limitation it intends as a permit condition.‖ 

Pls.’ Resp. to Corps at 7. The Corps responds that the limitations described in the 404 permit are not ―effluent 

limitations.‖ Corps Reply at 10 (citing Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992)). Regardless of the 

nomenclature, the EA limits the fill to 3.5 acres and the City must meet this requirement to go forward with Phase II. 

AR 1:32.

33 As a related segmentation issue, Count V of the Complaint asserts that the Corps considered an incomplete 

application; that is, that the Corps provided permitting of Phase II ―without determining the impacts of constructing 

the full project for which the permit is sought.‖ Compl. ¶ 257. Plaintiffs claim that because ―[c]onstruction of Phase 

I, Phase II, and Phase III of the Northwest Bypass are reasonably related activities,‖ id. ¶ 71, the permit application 

should have included consideration of Phase I (already constructed) and Phase III (foreseeably constructed). Id. ¶¶ 

250-52. However, the EA reflects that Phase III did receive some attention from the Corps. See AR 1:32 (―The City 

asserts that it has no present plans to construct Phase 3 of the original project and has requested authorization to fill 

only those wetlands in the path of Phase 2.‖).

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has been completed. Id. Phase II is the project that is under consideration in the EA before the 

Court. Phase III ―would extend from the Phase I access drive approximately 1 mile north to join 

Penacook Street near the intersection of Rumford Street in the north central part of the city.‖ Id. 

―The City asserts that it has no present plans to construct Phase 3 of the original project and has 

requested authorization to fill only those wetlands in the path of Phase 2.‖ Id.

The Plaintiffs assert that the Corps was arbitrary and capricious concerning two related 

issues: first, that Phase II and Phase III are connected or cumulative actions under the Federal 

Regulations, 40 C.F.R. § 1508.25(a)(1)-(2), and therefore cannot be segmented, and second, that 

the Corps improperly analyzed the cumulative impacts of the project under 40 C.F.R. §§ 

1508.07, 1508.25(a)(3).

1. Segmentation: Connected and Cumulative Actions

Under 40 C.F.R. § 1508.25, an agency is required to consider connected, cumulative, or 

similar actions in the same environmental impact statement.34 Id. The regulation defines

―connected actions‖ as those that are ―closely related and therefore should be discussed in the 

same impact statement.‖ 40 C.F.R. § 1508.25(a)(1). According to the regulation, actions are 

connected if they: ―(i) Automatically trigger other actions which may require environmental 

impact statements; (ii) Cannot or will not proceed unless other actions are taken previously or 

simultaneously; [or] (iii) Are interdependent parts of a larger action and depend on the larger 

action for their justification.‖ 40 C.F.R. § 1508.25(a)(1)(i)-(iii). ―Cumulative actions‖ are those 

that, ―when viewed with other proposed actions have cumulatively significant impacts.‖ 40 

C.F.R. § 1508.25(a)(2). Finally, ―similar actions‖ are those ―which when viewed with other 

reasonably foreseeable or proposed agency actions, have similarities that provide a basis for 

 

34 40 C.F.R. § 1508.25 is part of the Council on Environmental Quality (CEQ) regulations promulgated pursuant to 

NEPA. 

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evaluating their environmental consequences together, such as common timing or geography.‖ 

40 C.F.R. § 1508.25(a)(3). The regulation states that an agency ―may wish to analyze similar 

actions in the same impact statement.‖ Id. (emphasis added). This subsection provides much 

more latitude to the Corps than connected and cumulative actions and ―provides no basis for 

finding a violation of NEPA.‖ North Carolina Alliance for Transp. Reform, Inc. v. United States

Dep’t of Transp., 151 F. Supp. 2d 661, 684 n.19 (M.D.N.C. 2001).

Connected and cumulative actions are considered in the EA ―to assure that 

decisionmakers, as well as the public, are aware of the environmental impacts of the entire 

project, as an interconnected whole, so as to avoid irreversible commitment to an entire project 

on the strength of a segmented analysis of the impacts associated with something less than the 

entire project.‖ Sierra Club v. Marsh, 744 F. Supp. 352, 364 (D. Me. 1990). Thus, courts have 

found segmentation improper when the segmented project ―has no independent justification, no 

life of its own, or is simply illogical when viewed in isolation.‖ One Thousand Friends v. 

Mineta, 364 F.3d 890, 894 (8th Cir. 2004) (quoting Save Barton Creek Ass’n v. Fed. Highway 

Admin., 950 F.2d 1129, 1139 (5th Cir. 1992)) (quotations omitted).

35

 

Under the regulations, Phase III is not a ―connected action‖ to the Phase II proposal. 

Plaintiffs have provided no evidence that Phase II would ―automatically trigger‖ Phase III or that 

Phase III ―cannot or will not proceed‖ unless Phase II is undertaken ―previously or 

simultaneously.‖ 40 C.F.R. § 1508.25(a)(1), (2). Further, contrary to the Plaintiffs‘ assertions, 

Phase II is not ―an interdependent part[] of a larger action,‖ and does not depend on the ―larger 

 

35 In One Thousand Friends, the Eighth Circuit concluded that a highway interchange was not improperly 

segmented because the interchange had independent utility. 364 F.3d at 894.

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action‖ of the whole proposed bypass for its justification.36 Id. § 1508.25(a)(iii). As stated in the 

Preliminary Injunction Order, ―the Phase II project alone – taking away the existence of Phase I 

or the possibility of a Phase III – has a clear independent utility: to relieve traffic congestion, 

promote public safety, and provide a more direct route to the hospital.‖ Northwest Bypass II, 

470 F. Supp. 2d at 48. The Corps was not arbitrary and capricious when it found that Phase II 

alone would ―relieve traffic congestion and to allow for the safe and efficient flow of traffic in 

this quadrant of the city. Improved pedestrian safety is an inherent part of the basic project 

purpose.‖ AR 1:32.

Finally, Phases II and III are not ―cumulative action[s]‖ because there is no evidence that 

Phase III is a ―proposed action‖ under the regulations. 40 C.F.R. § 1508.25(a)(2). A ―proposed 

action‖ ―exists at that stage in the development of an action when an agency subject to [NEPA] 

has a goal and is actively preparing to make a decision on one or more alternative means of 

accomplishing that goal and the effects can be meaningfully evaluated.‖ 40 C.F.R. § 1508.23. 

The Corps states that ―[t]here has not been a proposal to pursue Phase III since the City 

submitted its Section 404 application for Phase II to the Corps in 2000,‖ Fed. Def.’s Opp’n at 12, 

and Plaintiffs provide no evidence to the contrary. Therefore, the Corps was not arbitrary and 

capricious in determining that Phase III is not a cumulative action, a connective action, or a 

similar action to the Phase II proposal.

2. Cumulative Impacts

Plaintiffs also claim that the Corps did not properly consider the cumulative impacts of 

Phase II. 

 

36 Plaintiffs contend that the purpose of Phase II is largely the same as ―those advanced for the Northwest Bypass as 

a whole.‖ Pls.’ Mot. at 24. However, the issue is whether justification for Phase II depends on Phase III, not 

whether their purposes are similar or even identical. 

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 ̳[C]umulative impact‘ is the impact on the environment which results from the 

incremental impact of the action when added to other past, present, and 

reasonably foreseeable future actions regardless of what agency (Federal or nonFederal) or person undertakes such other actions. Cumulative impacts can result 

from individually minor but collectively significant actions taking place over a 

period of time. 

40 C.F.R. § 1508.7. If an agency lacks the information to perform a cumulative impact analysis, 

―the agency shall always make clear that such information is lacking.‖ 40 C.F.R. § 1502.22.

At issue is whether Phase III should have been considered a ―reasonably foreseeable 

future action[] . . . .‖ 40 C.F.R. § 1508.7. The First Circuit has stated that the agency ―need not 

speculate about all conceivable impacts, but it must evaluate the reasonably foreseeable 

significant effects of the proposed action. In this context, reasonable foreseeability means that 

the impact is sufficiently likely to occur that a person of ordinary prudence would take it into 

account in reaching a decision.‖ Dubois, 102 F.3d at 1286 (citations and internal punctuation 

omitted). According to the First Circuit, 

Whether a particular set of impacts is definite enough to take into account, or too 

speculative to warrant consideration, reflects several different factors. With what 

confidence can one say that the impacts are likely to occur? Can one describe 

them  ̳now‘ with sufficient specificity to make their consideration useful? If the 

decisionmaker does not take them into account  ̳now,‘ will the decisionmaker be 

able to take account of them before the agency is so firmly committed to the 

project that further environmental knowledge, as a practical matter, will prove 

irrelevant to the government's decision? 

Sierra Club v. Marsh, 976 F.2d 763, 768 (1st Cir. 1992) (quoting Sierra Club v. Marsh, 769 F.2d 

868, 878 (1st Cir. 1985)).

The First Circuit has also suggested that ―reasonably foreseeable‖ means that the project 

is ―imminent‖ or ―inevitable.‖ Airport Impact Relief v. Wykle, 192 F.3d 197 (1st Cir. 1999) 

(quoting Village of Grand View v. Skinner, 947 F.2d 651 (2nd Cir. 1991)); Sierra Club, 976 F.2d 

at 768. In Airport Impact Relief, the appellants claimed the Federal Highway Administration‘s 

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environmental review of the Central Artery/Tunnel Project should have included an analysis of a 

potential move and expansion of a service road near Logan Airport. Airport Impact Relief, 192 

F.3d at 200. Emphasizing that the state had not received the necessary permits and approvals to 

expand the airport and there was no evidence of plans or funding for such a project, the District 

Court found that the potential project could not be considered a ―cumulative impact‖ under the 

regulations. Airport Impact Relief, Inc. v. Wykle, 45 F. Supp. 2d 89, 105 (D. Mass. 1999), aff’d

192 F.3d 197, 206 (1st Cir. 1999). 

Plaintiffs here have a stronger case. Until the 1990s, the City studied and proposed the

―Northwest Bypass‖ as one project. AR 1:39. Phase III has been proposed in the City‘s budget, 

albeit as an ―out year‖ project in the City‘s six year Capital Improvement Program and Budget.37

AR 1:139. Several studies have been done on the impacts of all three phases together, including 

the influential RSG study. 

At the same time, the City has stated that it does not have plans to go forward on Phase 

III, and if Phase III were initiated, it appears likely to take years before the project can be 

evaluated by the appropriate authorities. AR 1:32; see Airport Impact Relief, 192 F.3d at 206. 

Furthermore, even if Phase III is describable with some amount of specificity, because Phase II 

 

37 The City attached to its objection to the Plaintiffs‘ motion for summary judgment an affidavit from Martha 

Drukker, which explains that although Phase III is part of the budget, it is included in a section ―with only general 

information for future reference so that [it] can be referred to during future discussions relating to when and if those 

projects will actually be considered for implementation.‖ Concord Obj. Attach. 3 at ¶ 6. The Plaintiffs object to the 

Court‘s consideration of the Drukker affidavit, since it was ―not part of the administrative record.‖ Pls.’ Reply to 

City at 2. 

This particular contra dance between the parties raises an interesting question. In their motion for summary 

judgment, the Plaintiffs point to the administrative record, which contains the City‘s permit application cover letter 

to the Corps, stating in part that Phase III ―is identified in the out years of our six (6) year Capital Improvement 

Program and Budget to connect through to Penacook and North State Streets.‖ AR 1:139. The Plaintiffs say that 

the ―inclusion of Phase III in the City‘s governing budget plan . . . makes it a far cry from being  ̳too speculative to 

mandate . . . consideration.‘‖ Pls.’ Mot. at 25-26 (internal punctuation and citation omitted). The City responded by 

providing an affidavit from the City‘s Project Manager, explaining the inclusion of Phase III within the context of 

the City‘s budgetary practices. The Court is not clear that considering the Drukker affidavit, which provides context 

for a point the Plaintiffs raised in their dispositive motion, would improperly go outside the administrative record. 

But, in excess of caution, the Court will not consider the Drukker affidavit. 

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stands on its own merit in supporting its purposes, the relevant agencies will not be ―so firmly 

committed‖ to Phase III that they will not be able to consider the environmental consequences of 

that project if it is proposed. Sierra Club, 976 F.2d at 768. The Court concludes that on this 

record, the Corps was not arbitrary and capricious in not including Phase III as a cumulative 

impact, because it is too speculative to be ―reasonably foreseeable.‖ 40 C.F.R. § 1508.7.

3. Secondary Impacts

The Court extensively discussed secondary impacts in its Order on the motion for 

preliminary injunction. See Northwest Bypass II, 470 F. Supp. 2d at 48-49. In response to the 

Corps‘ motion for summary judgment, rather than rebrief the issue, the Plaintiffs elected to adopt 

their prior argument. Fed. Defs.’ Mot. at 11-12; Pls.’ Resp. to Corps. at 6. The Plaintiffs did not 

raise the question separately in their motion for summary judgment. Pls.’ Mot. at 22-26. To the 

extent the Corps‘ consideration of secondary impacts remains a current controversy, the Court 

adopts the reasoning in its earlier ruling. Northwest Bypass II, 470 F. Supp. 2d at 48-49. 

C. Historic Preservation

Section 106 of the National Historical Preservation Act (NHPA) requires that before 

issuing any license, a federal agency must ―take into account the effect of the undertaking on any 

district, site, building, structure, or object that is included in or eligible for inclusion in the 

National Register.‖38 16 U.S.C. § 470f. In addition, the agency must ―afford the Advisory 

Council on Historic Preservation (ACHP) . . . a reasonable opportunity to comment with regard 

to such undertaking.‖ Id. In other words, ―Section 106 is characterized aptly as a requirement 

that agency decisionmakers  ̳stop, look, and listen,‘ but not that they reach particular outcomes.‖ 

 

38 The Court considered the Plaintiffs‘ historic preservation arguments extensively in its prior orders, particularly in 

the Preliminary Injunction Order. Northwest Bypass II, 470 F. Supp. 2d at 54-59; Northwest Bypass I, 453 F. Supp. 

2d at 339-41. The Court incorporates its reasoning and findings regarding the NHPA from these earlier orders and 

explicitly discusses here only those arguments raised by the Plaintiffs in their summary judgment motion or 

assertions not considered elsewhere.

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Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir. 2003). As the 

First Circuit observed in Narragansett, the obligation to ―consult‖ can ―lead to differing views 

and to conflicting judicial interpretations.‖ Id. However, the NHPA ―delegates authority to the 

[ACHP] to promulgate regulations interpreting and implementing § 106‖ and the ACHP has 

―issued detailed regulations to give substance to § 106‘s consultation requirements.‖ Id. 

Federal regulations provide the framework for an agency to assess the impact of a federal 

action on historic properties. The agency must first determine whether the proposed federal 

action ―is a type of activity that has the potential to cause effects on historic properties.‖ 36 

C.F.R. § 800.3(a). If so, the agency must identify the State Historic Preservation Officer (SHPO) 

―to be involved in the section 106 process.‖39 Id. Next, the agency, in consultation with the 

SHPO, must ―make a reasonable and good faith effort‖ to identify the historic properties that 

could be affected by the proposed action. 40 36 C.F.R. § 800.4. Third, the agency must assess 

any ―adverse effects‖ to identified historic properties. 41 36 C.F.R. § 800.5. Fourth, in 

consultation with the SHPO, the agency official ―shall plan for involving the public in the section 

106 process.‖ 36 C.F.R. § 800.3(e). Finally, the agency must try to resolve the adverse effects 

by developing and evaluating alternatives to the project ―that could avoid, minimize, or mitigate 

adverse effects on historic properties.‖ 36 C.F.R. § 800.6(a). This final section also addresses 

the so-called ―memorandum of agreement,‖ the culmination of the process. ―A memorandum of 

 

39 The New Hampshire Division of Historical Resources (NHDHR) acts as the State‘s SHPO.

40 This also involves applying ―the National Register criteria to properties identified within the area of potential 

effects that have not been previously evaluated for National Register eligibility.‖ 36 C.F.R. § 800.4(c).

41 The criteria are defined:

An adverse effect is found when an undertaking may alter, directly or indirectly, any of the 

characteristics of a historic property that qualify the property for inclusion in the National Register 

in a manner that would diminish the integrity of the property‘s location, design, setting, materials, 

workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics 

of a historic property, including those that may have been identified subsequent to the original 

evaluation of the property‘s eligibility for the National Register. Adverse effects may include 

reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther 

removed in distance or be cumulative.

36 C.F.R. § 800.5. 

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agreement executed and implemented pursuant to this section evidences the agency official‘s 

compliance with section 106 and this part and shall govern the undertaking and all of its parts. 

The agency official shall ensure that the undertaking is carried out in accordance with the 

memorandum of agreement.‖ 36 C.F.R. § 800.6(c).

In their Complaint, Plaintiffs essentially allege that the Corps did not follow the 

procedure set forth in § 106 and implementing regulations.42 The court considers these alleged 

violations below.43

1. The Tuttle House

The Tuttle House is a property listed on the National Register of Historic Places and is in 

the path of the Phase II proposal. AR 3:106. According to the Complaint, the Corps committed 

several violations of § 106 of the NHPA, ―by failing to make a reasonable and good faith effort 

to involve the Tuttles and consider their views,‖ Compl. ¶ 397, by failing to make ―information 

available to the public‖ and failing to provide ―an opportunity for members of the public to 

express their views,‖ Compl. ¶ 398, and ―by failing to make a reasonable and good faith effort to 

adequately minimize or mitigate the adverse effects on the Tuttle House in the final 

Memorandum of Agreement (MOA).‖ Compl. ¶ 400. In their amended memorandum in 

opposition to the City‘s motion, the Plaintiffs assert that because the Corps met with the Tuttles 

two years before the City purchased a relocation site for the Tuttle home, but did not meet again 

 

42 Regarding any potential standing argument brought by the Corps, Corps’ Mot. at 15, and as stated in the Court‘s 

Order on Plaintiffs’ Motion for Preliminary Injunction, the Court concludes for independent reasons that Plaintiffs 

failed to show that the Corps was arbitrary and capricious in its consideration of historic preservation issues, the 

Court need not reach the standing arguments.

43 Plaintiffs also allege that the Corps failed to apply 36 C.F.R. part 68. Compl. ¶¶ 358, 419. However, these 

regulations ―set forth standards for the treatment of historic properties containing standards for preservation, 

rehabilitation, restoration and reconstruction.‖ 36 C.F.R. § 68.1. According to the Corps, ―construction of Phase II 

does not involve any such actions, and therefore the provisions‖ do not apply. Corps’ Mot. at 21. Plaintiffs do not 

respond to this argument, and it appears that Phase II does not implicate Part 68. 

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with the Tuttles, that the Corps failed to meet its statutory and regulatory responsibilities. Pls.’ 

Am. Mem. in Opp’n to City at 4-5.

The administrative record does not support the allegation that the Corps failed to meet its 

duties. Rather, the record reflects that the Corps fulfilled their ―stop, look, and listen‖ 

responsibilities with regard to the Tuttle House. Narragansett Indian Tribe, 334 F.3d at 166. On 

October 6, 2000, the Corps, along with other city and state officials, met with the Tuttles and 

their attorney to discuss the relocation of their home. AR 3:28, 57-58. Various relocation sites 

were considered and the relocation process was explained. Id. On March 12, 2001, the Corps 

wrote the Advisory Council on Historic Preservation (ACHP) in Washington, informing them 

that the City had applied for a Section 404 permit and that three National Register properties, 

including the Tuttle House, would be adversely affected. AR 3:47. A public hearing was held in 

April 2001. AR 3:1. The City also repeatedly offered to purchase the Tuttle‘s land, relocate 

their house, and provide financial settlement. AR 3:25-26, 35-36. After several years of 

negotiations, the Tuttles decided they were simply too old to move. AR 3:1. In spite of the 

Tuttles‘ objections, the SHPO supported the City‘s purchase of a site for the relocation of the 

Tuttle home. AR 3:32. On December 4, 2004, a Memorandum of Agreement was signed by the 

Corps, the SHPO, and the City, outlining plans to relocate the Tuttle Home. AR 3:3-7. The 

Tuttles were not signatories, but were invited to discuss the MOA with the City, which the 

Tuttles declined.

44

 AR 3:1, 7:9-10. Observing that the City ―is determined to proceed, even if it 

requires they take the house by eminent domain,‖ the Corps decided to issue a section 404 

permit. Id. 

 

44 If there is a resolution without the ACHP, then the only required signatories to the memorandum of agreement are 

the agency official and the SHPO. 36 C.F.R. § 800.6(c)(1)(i). The agency may, but is not required to, invite other 

signatories. Id. § 800.6(c)(3). Here, the MOA was signed by the SHPO and the Corps‘s district engineer. The 

Concord city manager also concurred in the agreement, pursuant to 36 C.F.R. § 800.6(c)(3). 

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Contrary to Plaintiffs‘ position, the administrative record confirms that the Corps 

complied with the consultation regulations of NHPA. As ―consultation is not the same thing as 

control over a project,‖ the Plaintiffs‘ claims regarding the Tuttle home fail. Narragansett 

Indian Tribe, 334 F.3d at 168.

2. Pleasant View Home

Plaintiffs argue that the Corps failed to ―identify, evaluate and take into account‖ certain 

adverse effects to the Pleasant View Home that it contends will arise with the construction of 

Phase II. Pls.’ Mot. at 26. Plaintiffs focus on the grounds of the Pleasant View Home, which 

were planned by landscape architect Arthur Shurcliff. Id. (quoting Compl. ¶ 424; (citing AR 

3:146-150)). They claim that the Corps did not ―take into account the effect of the [parkway]‖ 

on the Pleasant View Home as required by 16 U.S.C. § 470f. Plaintiffs paint a beautiful picture 

of the grounds that will be impacted, but their arguments do not meet the standards set out in the 

NHPA. 

After finding that the project results in adverse effects to the Pleasant View Home, 33 

C.F.R. § 800.5, the Corps must consult with the SHPO ―to develop and evaluate alternatives or 

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on 

historic properties.‖ 33 C.F.R. § 800.6(a). Here, the record shows that the Corps considered 

impacts to the Pleasant View Home property in a 1993 meeting with the SHPO. AR 3:120 

(mentioning ―mitigation visual screening[;] need landscape plan‖). Further, the City held several 

meetings which discussed the property, and the minutes of those meetings were on the record. 

AR 3:63 (describing, in Sept. 12, 2000 minutes, discussion of visual screens and sound buffers 

for the Pleasant View Home property); AR 3:59 (stating in Oct. 4, 2000 minutes that ―special 

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effort be made with regard to the landscaping improvements in order to limit the visual impacts 

to the property‖). 

The Memorandum of Agreement that the Corps entered into with the SHPO shows that 

the Corps consulted with the SHPO to develop mitigation to counter adverse effects on the 

property. AR 1:14, 16 (requiring ―trees, other plantings, and fencing . . . to mitigate adverse 

visual and audible impacts . . . .‖). While Plaintiffs argue that the Corps did not consider the 

adverse impacts to the ―meadowland‖ that will be bifurcated by the parkway, the MOA requires 

that the severed section of the meadow to be ―held in protective easement,‖ and requires specific 

upkeep to ―maintain the area as good songbird habitat into the foreseeable future and the cultural 

land use and setting of the Pleasant View property.‖ AR 1:16. In addition, Plaintiffs argue that 

the Corps did not properly consider the noise impacts to the Pleasant View Home. Compl. ¶¶ 

430-31. Regarding technical issues such as noise impacts, ―[t]he methodology used . . . is a 

matter of agency expertise.‖ City of Oxford v. FAA, 428 F.3d 1346, 1358 (11th Cir. 2005). In 

City of Oxford, the Federal Aviation Administration (FAA) regulations established a particular 

methodology for measuring airport noise impacts, and the court upheld the agency‘s 

determination. Id. However, City of Oxford does not stand for the proposition that the Corps 

had to use some particular technical methodology to measure the noise from a local road, and

Plaintiffs cite no regulation requiring a particular Army Corps methodology for such a 

measurement. Further, in this case, the SHPO did not request any further auditory tests, and, as 

stated above, the EA requires mitigation for noise impacts to the property.

According to the FHPA regulations, ―[a] memorandum of agreement executed and 

implemented pursuant to [36 C.F.R. § 800.6] evidences the agency official‘s compliance with 

section 106 and this part . . . .‖ 36 C.F.R. § 800.6(c); Advocates for Transp. Alternatives, Inc. v. 

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United States Army Corps of Eng’rs, 453 F. Supp. 2d 289, 313 (D. Mass. 2006). The Corps was 

not arbitrary and capricious in its consideration of effects to Pleasant View Home.

3. Consideration of Alternatives

Plaintiffs claim that the Corps failed to ―develop and evaluate alternatives that could 

avoid the undertaking‘s adverse effects on historic properties.‖ Pls.’ Mot. at 26 (quoting Compl.

¶ 367). Instead of providing separate evidence regarding this ―failure,‖ Plaintiffs rely on their 

arguments concerning practicable alternatives under the Clean Water Act. Id. As stated above, 

the relevant NHPA regulations require the Corps ―to develop and evaluate alternatives or 

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on 

historic properties.‖ 36 C.F.R. 800.6(a). The record shows that the Corps consulted with the 

New Hampshire SHPO and developed ―alternatives or modifications‖ to minimize and mitigate 

the effects to historic properties. AR 1:14-17; see also Lesser v. City of Cape May, 110 F. Supp. 

2d 303, 325 (D.N.J. 200), aff’d by 2003 U.S. App. LEXIS 21182 (3rd Cir. Oct. 17, 2003) 

(finding that under historic preservation regulations, ―there is no binding authority which 

required the City to consider prudent and feasible project alternatives‖); Wicker Park Historic 

Dist. Pres. Fund v. Pierce, 565 F. Supp. 1066, 1076 (N.D. Ill. 1982) (―These references to 

alternatives are thus more sensibly interpreted as applying only to changes in the existing

proposal that could make it more compatible with its surrounding environment. If we were to 

adopt plaintiffs‘ argument that HUD must consider completely independent and different 

proposals for the use of federal funds, i.e., construction outside the historic district or 

rehabilitation of existing housing within it, then any proposal for construction within a historic 

district would always have to be rejected since the alternatives would always create less of an 

impact on the district. This court does not believe the NHPA was intended to go so far.‖). 

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Finally, to the extent the Plaintiffs have adopted their Clean Water Act argument, the Court in 

turn adopts its earlier discussion and having found that the Corps properly considered 

alternatives under the Clean Water Act, the Court also concludes that the Corps properly 

considered alternatives under NHPA § 106. 

Plaintiffs also contend that the Corps ―did not make information available to the public 

concerning efforts to  ̳develop and evaluate alternatives or modifications to the undertaking that 

could avoid, minimize, or mitigate adverse effects on historic properties.‘‖ Compl. ¶ 371 

(quoting 36 C.F.R. § 800.6(a)). The Administrative Record shows that the Corps issued public 

notice in December 2000, requesting public comments regarding the proposed project. AR 

1:121. The notice stated that ―considerable likelihood exists for the proposed work to effect 

properties listed on the national (sic) Register of Historic Places . . . and further consideration of 

the requirements of Section 106 of the National Historic Preservation Act of 1966, as amended, 

is necessary.‖ AR 1:122. The notice continues, alerting the public to ongoing consultation with 

the City and SHPO and the development of the MOA. Id. The State held two public hearings 

(one regarding the ―Northwest Bypass‖ before it was split into parts and one regarding Phase II) 

attended by the Corps, and comments at these meetings included concerns about historic 

properties. The Corps then properly considered historic preservation issues in its EA. AR 1:37, 

41, 43. Via participation in the public hearings and review of the record, the Corps complied 

with the ―listen‖ requirements of the NHPA. See Neighborhood Ass’n of the Back Bay, Inc. v. 

Fed. Transit Admin., 407 F. Supp. 2d 323, 333 (D. Mass. 2005).

4. Documentation and Public Participation Requirements

In their Complaint, Plaintiffs state that the EA violates § 106 because it ―does not contain 

 ̳[a] description of the affected historic properties, including information on the characteristics 

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that qualify them for the National Register.‘‖ Compl. ¶ 369 (quoting 36 C.F.R. § 800.11(e)(3)). 

The Corps responds that the regulation ―permits the use of NEPA documents to comply with 

documentation requirements, but does not require such use.‖ Corps’ Mot. at 22 (citing 36 C.F.R. 

§ 800.11(b)) (emphasis in Corps’ Mot.). In addition, the Corps emphasizes that there is nothing 

in the NHPA regulations that requires the Corps to prepare an EA or EIS. Id. at 22. Rather, the 

agency must make sure that its findings are ―supported by sufficient documentation to enable any 

reviewing parties to understand its basis.‖ 36 C.F.R. § 800.11(a). The underlying 

documentation in this case described the properties (AR 3:124-39, 142-67), included notes from 

meetings regarding impacts to those properties (AR 3:57-65, 6:46), public comments (AR 2:1-

587), and the MOA (AR 3:3-12). The EA is supported by this documentation and, in accordance 

with CEQ requirements, 40 C.F.R. § 1508.9(b), provides a description of the impacts to the 

historic properties and states that ―[a]n MOA has been developed to take into account the 

impacts to historic resources and to ameliorate the adverse affects to the maximum extent 

practicable.‖ AR 1:37, 41. 

D. NEPA 

Plaintiffs argue, on summary judgment, that the Corps‘ decision, under NEPA, 42 U.S.C. 

§§ 4321 et seq., to prepare an EA instead of an EIS was arbitrary and capricious. Pls.’ Mot. at 

28. NEPA ―declares a broad national commitment to protecting and promoting environmental 

quality.‖ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). The role of 

the reviewing court under NEPA is somewhat limited: ―The only role for a court is to insure that 

the agency has taken a  ̳hard look‘ at environmental consequences; it cannot interject itself 

within the area of discretion of the executive as to the choice of the action to be taken.‖ Kleppe 

v. Sierra Club, 427 U.S. 390, 410 (1976) (citations omitted); see also Dubois, 102 F.3d at 1284; 

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33 Charles Alan Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8335 (current 

through 2008 update) (―Without engaging in review of the actual resolution of factual questions 

of this variety, courts, by using the hard look standard, assure that the agency did a careful job at 

fact gathering and otherwise supporting its position.‖).

1. FONSI Review

CEQ NEPA regulations set forth ten factors to determine whether a proposal will result in 

a significant impact and require an EIS, otherwise the agency will make a Finding of No 

Significant Impact (FONSI).

45

 40 C.F.R. § 1508.27(b). Plaintiffs argue that the Corps failed to 

properly consider several of these factors. The Court‘s role ―is simply to ensure that the agency 

has adequately considered and disclosed the environmental impact of its actions and that its 

decision is not arbitrary or capricious.‖ Coal. on Sensible Transp. Inc. v. Dole, 826 F.2d 60, 66 

(D.C. Cir. 1987) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 

87, 97-98 (1983)). Review of an agency‘s FONSI is conducted under a four part analysis:

 

45The regulations state the following list should be considered:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the 

Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural 

resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical 

areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly 

controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or 

involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant 

effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively 

significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant 

impact on the environment. Significance cannot be avoided by terming an action temporary or by 

breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or 

objects listed in or eligible for listing in the National Register of Historic Places or may cause loss 

or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its 

habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements 

imposed for the protection of the environment.

40 C.F.R. § 1508.27(b).

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First, the agency must have accurately identified the relevant environmental 

concern. Second, once the agency has identified the problem it must have taken a 

―hard look‖ at the problem in preparing the EA. Third, if a finding of no 

significant impact is made, the agency must be able to make a convincing case for 

its finding. Last, if the agency does find an impact of true significance, 

preparation of an EIS can be avoided only if the agency finds that changes or 

safeguards in the project sufficiently reduce the impact to a minimum.

Coal. on Sensible Transp., 826 F.2d at 67; see also City of Waltham v. United States Postal 

Serv., 786 F. Supp. 105, 121 (D. Mass. 1992); Advocates for Transp. Alternatives, 453 F. Supp. 

2d at 289. 

The four-factor analysis does not favor the Plaintiffs‘ position. First, the Corps identified 

and outlined the relevant environmental concerns, including the impact on wetlands, traffic 

concerns, and historical properties. In their motion, Plaintiffs first claim that ―the Corps 

completely failed to accurately identify recreational and educational resource concerns that are 

highly relevant to the project‖ under the first part of the FONSI analysis. Pls.’ Mot. at 28. To 

support this claim, they cite arguments discussed under the CWA section of this Order. As 

discussed above, this claim fails because the Corps‘ consideration and weight of the recreational 

and educational impacts was not arbitrary and capricious.

Plaintiffs then claim that under the second part of the FONSI analysis, the agency did not 

take a ―hard look at the traffic problem‖ and that the record includes ―a factually unsupported 

conclusion of a net traffic benefit and the indisputable fact that no traffic modeling has been done 

for the building of Phase II plus the closure of Silk Farm Road/Dunbarton Road . . . .‖46 Pls.’ 

Mot. at 29. Notwithstanding the Plaintiffs‘ earnest arguments, the record reflects that the agency 

took the mandatory ―hard look‖ at the traffic problem in preparing the EA. The record contains a 

detailed traffic study prepared for the City in 1998 by Resource Systems Group, which 

 

46 Plaintiffs also claim, under the second part of the FONSI analysis, that the Corps did not properly consider 

whether the project was ―highly controversial.‖ The Court considers this issue separately below.

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concluded that construction of the new Parkway would decrease traffic on South Fruit Street, and 

―the new Parkway will contribute to the convenience of the street network in Concord and 

reduce traffic volumes at nearby parallel roads.‖47 AR 6:602. 

Plaintiffs assert that under the third part of the FONSI analysis, ―the EA/SOF discusses 

traffic impacts in conclusory fashion, dismissing the concern that Phase II  ̳will attract much 

traffic to residential neighborhoods.‘‖ Pls.’ Mot. at 29 (quoting AR 1:40). Plaintiffs continue:

―The insufficiency of the rest of the case made for a FONSI by the Corps, which concerns issues 

identical to those discussed, supra, is equally apparent, based on the discussions above.‖ Id. 

Since the Court found that the Plaintiffs‘ conclusions are not ―equally apparent‖ in its discussion 

of the CWA claims, the Plaintiffs‘ arguments under NEPA must fail. The Court concludes that 

the Corps outlined a convincing case for its FONSI. See AR 1:40-41. 

Finally, concerning the fourth part of the FONSI analysis, Plaintiffs argue that the Corps 

was mistaken in finding that there were no ―impacts of true significance,‖ and therefore, the 

Corps must ―accomplish‖ impact minimization. Pls.’ Mot. at 29. Plaintiffs continue: ―Given a 

correct finding that  ̳impacts of true significance‘ exist, however, the rule does not require simply 

a finding that minimization of any detrimental effects has been  ̳sought‘; such minimization must 

have been accomplished, and that has not been shown.‖ Id. The EA states that the ―effects on 

wetlands are minor, unavoidable and adequately mitigated,‖ and that the project ―is not a major 

federal action significantly affecting the quality of the human environment.‖ AR 1:42-43. The 

City‘s expert supports this finding. AR 6:35-36 (noting, after a description of the impacts of the 

project, that ―[n]one of the above mentioned impacts are to wetlands of high value . . . . While 

the overall complex may have high functions and values, the actual impacts, if located to the 

 

47 While it is true that this report does not include the closure of Dunbarton and Silk Roads, the Court has already 

found that the use of the report to model the benefits of Phase II, including the closure of those roads, as permitted 

by the Corps to be reasonable, and not arbitrary and capricious.

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edge of the complex as proposed, will not have significant impacts‖). The Court finds that the 

Corps was not arbitrary and capricious in finding that there were no ―impacts of true 

significance,‖ so the fourth factor does not apply. Nonetheless, the Corps, in conjunction with 

the City and NHDES, sought to minimize any detrimental effects. Having reviewed the 

administrative record, the Court concludes that the Plaintiffs have not shown that the Corps‘ 

FONSI conclusion and its decision not to proceed with an EIS were arbitrary or capricious.

2. Whether the Effects are “Highly Controversial”

Plaintiffs also contest the Corps‘ finding that an EIS is not required, arguing that under 40 

C.F.R. § 1508.27(b), the Corps did not properly consider ―[t]he degree to which the effects on 

the quality of the human environment are likely to be ―highly controversial.‖ Pls.’ Mot. at 29 

(quoting 40 C.F.R. § 1508.27(b)(4)). The Corps responds that this regulation ―establish[es] that 

NEPA controversy must involve disagreement over the effects on the environment, not merely 

the popularity of a proposal.‖ Fed. Def.’s Opp’n at 18. 

The First Circuit has not defined ―highly controversial.‖ Advocates for Transp.

Alternatives, Inc., 453 F. Supp. 2d at 303. However, as the Fourth Circuit has pointed out, and as

common sense dictates, the term ―controversial‖ is not synonymous with ―opposition.‖ See 

North Carolina v. FAA, 957 F.2d 1125, 1134 (4th Cir.1992) (adding that ―[o]therwise, 

opposition, and not the reasoned analysis set forth in an environmental assessment, would 

determine whether an environmental impact statement would have to be prepared . . . . The 

outcome would be governed by a  ̳heckler‘s veto.‘‖). 

To support their argument that ―highly controversial‖ includes ―reasonable disagreement 

concerning the facts in dispute,‖ Plaintiffs cite Save Our Heritage, Inc. v. FAA, in which the First 

Circuit considered a FAA regulation that requires at least an environmental assessment (as 

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opposed to merely a categorical exclusion) if ―the proposed action was  ̳highly controversial on 

environmental grounds.‘‖ 269 F.3d 49, 60-61 (1st Cir. 2001) (stating that the FAA regulations 

indicate that this test is met if the ― ̳action‘ in question is  ̳opposed on environmental grounds by 

a Federal, State, or local government agency or by a substantial number of the persons

affected‘‖). In Save Our Heritage, the FAA argued that the First Circuit should adopt a reading 

of ―highly controversial‖ that ―does not depend on whether vocal opponents exist but on whether 

reasonable disagreement exists over the project‘s risk of causing environmental harm.‖ Id. at 61. 

The First Circuit disagreed, and directly contrasted the FAA regulation with 40 C.F.R. § 

1508.27(b)(4), finding differences in the language of the two regulations that resulted in 

divergent outcomes. Id. (stating that ―[b]y contrast, the decisions on which the FAA relies 

interpret  ̳controversial‘ as used in other regulations, where the term modifies  ̳effects‘ – phrasing 

more helpful to the FAA‘s reading,‖ and citing 40 C.F.R. § 1508.27(b)(4) as an example). 

Plaintiffs also rely on Center for Biological Diversity v. United States Fish and Wildlife 

Serv., in which the Western District of Texas compiled cases and found that ―highly 

controversial‖ means ―a substantial dispute [about] the size, nature, or effect of the major Federal 

action rather than the existence of opposition to a use,‖ but also emphasized the number of 

objections made to various projects. 202 F. Supp. 2d 594, 568 (W.D. Tex. 2002). However, 

despite some emphasis on the number of comments, the overriding issue in Center for Biological 

Diversity (and the cases it collects) is whether there is a controversy that ―cast[s] substantial 

doubt on the adequacy of the [agency‘s] methodology and data.‖ Nat’l Parks & Conservation 

Ass’n v. Babbitt, 241 F.3d 722, 737 (9th Cir. 2001). In other words, a ―federal action [is] 

controversial if  ̳a substantial dispute exits as to [its] size, nature, or effect.‘‖ Advocates for 

Transp. Alternatives, 453 F. Supp. at 304 (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 

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1333 (9th Cir. 1992)). Further, mere disagreement among experts does not rise to this standard. 

Greenpeace Action, 14 F.3d at 1335 (stating that controversy does not exist merely ―whenever 

qualified experts disagree‖). Here, Plaintiffs rest their argument on the number of persons 

opposed to the Northwest Bypass and do not make an express claim that the controversy itself is 

―a substantial dispute‖ due to its ―size, nature, or effect.‖ Id. at 1333 (quoting Found. for N. Am. 

Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir.1982)). Because the 

Northwest Bypass has stirred opposition and controversy in a lay sense does not mean that it is 

―highly controversial,‖ so as to require an EIS under 40 C.F.R. § 1508.27(b)(4).48

VI. CONCLUSION

The Plaintiffs have not shown that the Corps was arbitrary and capricious in its findings 

regarding Phase II of the Northwest Bypass regarding the Clean Water Act, the National 

Environmental Policy Act, or the National Historic Preservation Act. The Court, therefore, 

GRANTS summary judgment in favor of Defendants the U.S. Army Corps of Engineers, the 

 

48 According to the Plaintiffs, 

The Corps‘ notes from the April 9, 2001 State hearing devote five (5) pages to supporters, AR 

2:286-89; AR 2:299, and eight (8) pages to opponents, AR 2:290-98. In response to its request for 

comments, the Corps received a single supportive comment from the public, i.e., not from the

City, Concord Hospital or St. Paul‘s School, consisting of a single page, AR 2:322, and ten (10)

opposing comments spanning seventy eight (78) pages, AR 2:217-18; AR 2:220 to AR 2:285 

[only first and last in appendix]; AR 2:323-324; AR 2:325; AR 2:327; AR 2:328; AR 2:329-30; 

AR 2:331; AR 2:332; and AR 2:336. The transcript of the second state hearing, on November 28, 

2001, showed no waning of opposition, whose testimony spans 114 pages (AR 2:72 to AR 2:185) 

[only first and last in appendix] of 172 total pages of testimony (AR 2:31 to AR 2:202 [only first 

and last in appendix]). About two-thirds of the attached Corps hearing notes are devoted to 

opponents‘ views. AR 2:209-215. 

Pls.’ Mot. at 30. However, as the Corps points out, 

Plaintiffs disregard comments in favor of the project from organizations like St. Paul‘s School and 

Concord Hospital, presumably on the theory that these organizations had some sort of financial 

interest at stake in Phase II. Yet Plaintiffs apparently do not exclude opponents to the project,

such as the Tuttles, who also had a financial stake in the outcome of the Phase II decision.

Fed. Def.’s Opp’n at 18. Even assuming that the Plaintiffs correctly left some interested parties out of the 

computation, their tally hardly shows a ―highly controversial‖ project in a city of over 40,000 people. Nat. Parks & 

Conservation Ass’n, 241 F.3d at 763 (finding that the Parks Service had received 450 comments, approximately 

85% of which were in opposition to the project).

Also, this discussion begs the question about whether the Plaintiffs themselves can generate their own 

controversy within the meaning of the regulation. There is no doubt that the Plaintiffs vigorously oppose the 

Northwest Bypass, but whether by that opposition alone they meet the ―highly controversial‖ element of federal 

regulation is another matter. 

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City of Concord, and the Interveners. The Court DENIES Plaintiffs‘ Motion for Summary 

Judgment (Docket # 143) and GRANTS (1) Federal Defendants Motion for Summary Judgment 

(Docket # 142); (2) Defendant City of Concord‘s Motion for Summary Judgment (Docket # 

136); and (3) Intervenor‘s Motion for Summary Judgment (Docket # 138).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 22nd day of April, 2008

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