CONCORD — A federal judge said he’ll likely decide by the end of the week whether to block the start of construction of Eversource’s $84 million transmission line that would cross the sensitive Little Bay estuary on the Seacoast.
The Conservation Law Foundation filed a two-count lawsuit contesting the U.S. Army Corps of Engineers permit for the project that seeks to improve power reliability with a 115-kilovolt line from Madbury to Portsmouth.
The focus of the environmental organization’s objection is a one-mile stretch of transmission line that would be layed across the bottom of Little Bay.
CLF asked the court to issue a preliminary injunction against the project and to order Eversource to commission an environmental impact statement, which would likely delay construction for 12 to 18 months.
At the close of four hours of oral arguments Wednesday, Judge Joseph Laplante said project opponents face a heavy burden.
“The court is loathe to enjoin a project that has been approved by two sovereigns,” Laplante said, referring to the sanctioning of the project by the Army Corps and the New Hampshire Site Evaluation Committee.
“I cannot substitute my judgment for the Corps, but if i find there is a reasonable likelihood of success on the merits then I will so rule. That’s a difficult question,” the judge said.
The crux of the suit is the CLF claim that use of a jet plow to clear a path for the cable will suspend 1,500 tons of sediment in the water, causing high suspended-solid concentrations that will release pathogens, contaminants and nutrients into the estuary.
CLF officials claim the work could damage the nearly two dozen commercial oyster beds in the area.
“This is a fragile ecosystem even today particularly as it has rebounded over the years,” said CLF lawyer Jeremy Eggleton.
“A small change could have a serious effect,” he said.
But Eversource lawyers said a trial using the jet plow earlier this month did not cause any dramatic harm to the area where the line would be installed.
“CLF wanted this trial. They got what they wanted and now they are ignoring the report entirely,” said Wilbur Glahn, a Manchester lawyer representing Eversource. “All of this data we did is accurate and any attempt to suggest otherwise is absolutely false.”
CLF lawyers said the federal agency failed to do its job with an environmental assessment because it did not require Eversource to demonstrate how alternative routes for this project would be too expensive.
“There is just no evidence they did that at all,” Eggleton said. “I think it is a fatal problem.”
Lawyers for Eversource counter that there were more than just cost reasons why other alternative routes for this project were rejected.
One alternate route to the north would have to cross two rivers and go into Maine before ending in Portsmouth, another to the south was seven miles longer than the preferred route and would require digging up the busy Portsmouth Traffic Circle, they said.
“If you determine the alternatives are not practicable, then a detailed analysis is not required,” argued James Banks, a Washington lawyer also representing Eversource.
Laplante said he found this case “frustrating” because he couldn’t find any other project elsewhere in the U.S. using this jet plow technology in an area like this one with tidal flats.
But as a result, Laplante said CLF has a more difficult task proving that it would cause environmental harm.
“It seems like you are asking me to stop a project approved by the state and approved by the federal government based on a, we don’t know,” Laplante said.
Eversource officials said they pursued this project after a 2012 report from ISO-New England, the non-profit regional transmission cooperative, that concluded the NH Seacoast area needed more power capacity and in the future would be more prone to power problems.
They recommended an upgrade like this Seacoast Reliability Project should occur in the region by 2020.
Utility officials maintain they have worked with stakeholders over nearly a five-year planning process to ensure that removing an old power cable and replacing it with this new transmission line would not harm the ecosystem.