By NANCY WEST, InDepthNH.org
CONCORD – The Conservation Law Foundation argued in federal court Wednesday that the Seacoast Reliability Project should be stopped because the U.S. Army Corps of Engineers didn’t do what is required by federal environmental laws before issuing a permit.
CLF attorney Jeremy Eggleton argued that Eversource shouldn’t be allowed to begin construction next week because the U.S. Army Corps of Engineers didn’t do a rigorous analysis on two alternative routes to the $84 million, 13-mile selected route from Madbury to Portsmouth.
The project has been controversial on a number of fronts, but mainly that it will be buried in Little Bay, a fragile estuary that local towns have been working to clean up for years and spending millions in the process.
There has been concern, too, for the oyster beds and eel grass. The Site Evaluation Committee has granted the project a construction permit.
Eggleton also argued that an environmental impact statement should have been completed and pointed out that the Corps took only three months before issuing a permit and there was no public hearing.
Eggleton said although two other potential routes were identified – one to the north and the other to the south of the selected route – they were deemed too expensive by Eversource. Eggleton pointed out to U.S. District Court Judge Joseph Laplante that there are no cost estimates for either of the other two lines.
“Why is it the Corps’ burden, not yours?” Laplante asked Eggleton.
The U.S. Army Corps of Engineers should not have simply taken the word of the developer, but should have done its own research into what the other lines would have cost to determine whether they were in fact more expensive, Eggleton said.
Attorney Devon McCune, representing the Corps, said her department took into account the voluminous records from the state Site Evaluation Committee, which granted the project a certificate to build, and records of other agencies.
Tom Irwin, CLF’s New Hampshire director, said, “The administrative record of the Army Corps of Engineers shows there really was not sufficient analysis of alternative routes other than going through Little Bay and the Clean Water Act makes it very clear there needs to be a meaningful analysis of alternatives.”
Eversource attorneys said there are sworn statements testifying to the fact that the two alternative routes would have been more expensive and said that cost was not the only consideration in ruling them out.
Eversource attorney James Banks said delaying the project would be a major problem as the conservation group is seeking a preliminary injunction to stop construction until the full lawsuit can be heard.
Banks said ISO-NE, which operates the region’s power system, has deemed the project a reliability project, which means it is necessary to meet the Seacoast area’s electricity needs.
Banks said ISO-NE’s deadline when it made the determination for completion of the project was the year 2020. Delay could cause equipment damage, power outages and pose risks to public safety, Banks said.
Eggleton argued that the Corps violated the Clean Water Act and the National Environmental Policy Act.
Last month, Judge Laplante denied CLF’s motion for preliminary injunction to stop Eversource from holding a trial run on the jet plow method of burying the cable along the one-mile length of Little Bay. That test has been conducted.
Judge Laplante said he would likely rule Friday or no later than Monday on the preliminary injunction. He said he would be “loathe to enjoin a project” that has been approved by the the Corps and the Site Evaluation Committee, but said he would do so if he finds it is likely CLF would prevail on the merits of their lawsuit.