Appendix — City of New Haven v. Marsh

gg-1°

(2)

No. 88-

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1988

City OF NEW HAVEN, CONNECTICUT,

Petitioner,

Wi

JOHN O. MARSH, JR., SECRETARY OF

THE ARMY, et al.

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NEIL T. PROTO

Counsel of Record

KELLEY DRYE & WARREN

Suite 600

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 463-8333

Special Counsel

City of New Haven, CT

BRIAN MURPHY

Corporation Counsel

City of New Haven

770 Chapel Street

New Haven, CT 06510

(203) 787-8232

SNS ET LIE POOLE PSTN I EINER I SA OH NA Hy ET AE

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

APPENDIX

TABLE OF CONTENTS

APPENDIX A: Court of Appeals

Denial of Rehearing Order,

Dated April 7, 1988.

APPENDIX B: Court of

Appeals Opinion,

Dated March ll, 1988

APPENDIX C: Court of

Appeals Judgment,

Dated March ll, 1988

APPENDIX D: District Court Memo-

randum and Order, Dated

September 8, 1987. .... .

APPENDIX E: District Court Memo-

randum and Order, Dated

ae

APPENDIX F: Excerpts,

Record of Decision,

Dated November 15, 1984.

APPENDIX G: Letter from Divi-

sion Engineer to Mall

Properties, Inc., Dated

August 20, 1985. .

APPENDIX H: Record of Decision,

Dated August 20, 1985.

3a

24a

25a

. 85a

93a

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.104a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 87-1827

MALL PROPERTIES, INC.,

Plaintiff, Appellee,

Vv.

JOHN O. MARSH, JR., ETC., ET AL.,

Defendants, Appellees,

CITY OF NEW HAVEN,

Intervenor-Defendant, Appellant.

Before

CAMPBELL, Chief Judge, COFFIN,

BOWNES, BREYER, TORRUELLA

and SELYA, Circuit Judges.

ORDER OF COURT

Entered: April 7, 1988

The panel of judges that rendered

the decision in this case having

mitted by the City of New Haven and its

suggestion for the holding of a rehearing

en banc having been carefully considered

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by the judges of the court in regular

active service and a majority of said

judges not having voted to order that the

appeal be heard or reheard by the Court

en banc,

It is ordered that the petition for

rehearing and the suggestion for rehear-

ing be both denied.

By the Court:

4/8//

Clerk.

[cc: Messrs. Lawson, Proto, Cochran,

Richmond, Shelley, Robinson, Fried-

man, Tripp and Dewey]

- 2a-

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 87-1827

MALL PROPERTIES, INC.,

Plaintiff, Appellee,

v.

JOHN O. MARSH, JR., ETC.; ET AL.,

Defendants, Appellees,

CITY OF NEW HAVEN,

Intervenor-Defendant-Appellant.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Coffin, Bownes and Breyer,

03 it gutaas,

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Kathleen 2. Dewey, Appellate

Section, Land and Natural Resources

Division, Department of Justice, for

federal appellees’ motion to dismiss.

Alice Richmond, Hemenway & Barnes,

Daniel Riesel, and Sive, Paget & Riesel,

P.C., On memoranda in support of motion

to dismiss for appellee Mall Properties,

Inc.

Edward F,. Lawson, and Weston. Patrick.

Willard & Redding on memoranda in

opposition to motion to dismiss for

appellant City of New Haven.

MARCH 11, 1988

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Per Curiam. The government has

filed a motion to dismiss, joined in by

appellee Mall Properties, Inc., contend-

ing that a district court order remanding

to the Corps of Engineers for further

proceedings is not a final appealable

order and hence the present appeal should

be dismissed. Appellant City of New

Haven opposes the motion to dismiss. We

reject the City’s argument that the mo-

tion to dismiss was untimely. Jurisdic-

tional defects are noticeable at any

time. We turn, then, to the background.

Plaintif&é Mall Properties, Inc.,

applied to the Corps of Engineers for

permits to fill wetlands so that plain-

tiff might build a 1.1 million square

foot, two story shopping mall in North

Haven, Connecticut. The Corps denied the

permit. Amo the factors the Corps con-

sidered in concluding the project was

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Ps

contrary to the public interest was,

first, the City of New Haven's opposition

to the mall on the ground that a North

Haven mall would adversely impact New

Haven's economic development and, second,

the Governor of Connecticut's statement

at a July 1985 meeting that building the

North Haven Mall was not worth the risk

to New Haven. The district court +

concluded that the Corps had exceeded its

authority (1) by basing the permit denial

on socio-economic harms not proximately

related to changes in the physical en-

vironment and (2) by not following its

regulations which required that Mall

l. Though plaintiff Mall Properties is

a New York corporation and the mall is

proposed to be built in Connecticut,

venue in Massachusetts of the present

action was premised on 28 U.S.C. §

1391(e)(1) as one of the federal defen-

dants, the Divisional Engineer of the New

England Division of the Army Corps of

Engineers, resides in Massachusetts.

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Properties be provided notice of an op-

portunity to rebut the objection made by

the Governor of Connecticut. According-

ly, the court remanded the case to the

Corps for further proceedings consistent

with its opinion. The question, then, is

whether this remand order is now appeal-

able.

New Haven argues that the district

court entirely disposed of the matter

before it -- Mall Properties’ petition

for review -- and granted Mall Properties

the relief requested -- a remand to the

Corps. Hence, New Haven contends, the

judgment is a final one. We disagree.

Ultimately, Mall Properties wants’ the

proper permits themselves and, in the

event of a judicial challenge to the per-

mit, a judgment adjudicating Mall'‘’s en-

titlement to the permits. Indeed, orig-

inally Mall‘s complaint asked the court

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to direct the Corps to issue Mall the

permits (though Mall subsequently acknow-

ledged that a remand would be the proper

remedy were it to prevail). Thus, the

district court's remand order does not

grant Mall ultimately what Mall wants.

Rather, the court's order is but one in-

terim step in the process towards Mall's

obtaining its ultimate goal. Consequent-

ly, we do not view the remand order as

meeting the traditional definition of a

final judgment, that is, one which “ends

the litigation on the merits and leaves

nothing for the court to do but execute

the judgment.” Catlin v. United States,

324 U.S. 229, 233 (1945). The litigation

has not ended. It simply has gone to

another forum and may well return again.

Cf£. In re Abdallah, 778 F.2d 75 (lst Cir.

1985)(district court order remanding case

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to bankruptcy court for further proceed-

ings not final appealable order), cert.

denied, 106 S. Ct. 1973 (1986); Giordano

v. Roudebush, 565 F.2d 1015 (8th Cir.

1977) (district court order ruling that

plaintiff was not entitled to ae full

trial type procedure but remanding to

agency for further consideration of

plaintiff's arguments neither granted nor

denied the ultimate relief plaintiff

wanted -- reinstatement and back pay --

and was not a final appealable order);

St. Louis-San Francisco Ry. Co., 419 F.2d

933, 935 (8th Cir.)(district court order

which neither enforced nor denied en-

forcement of Board's award, but rather

decided some issues and remanded for fur-

ther proceedings, made no final determi-

nation of the entire merits of the con-

troversy and is not appealable), cert

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denied, 400 U.S. 818 (1970). The order

is not final in the usual sense.

This court and others have said that

generally orders remanding to an adminis-

trative agency are not final, immediately

appealable orders. See, e.g., Pauls v.

Secretary of Air Force, 457 F.2d 294,

297-298 (lst Cir. 1972)(order remanding

to Air Force Board for the Correction of

Military Records directing discovery and

detailed fact findings not appeal-

able);* Memorial Hospital System v.

Heckler, 769 F.2d 1043 (5th Cir. 1985)

(hospital appeal from order remanding for

further proceedings relating to Medicare

Re New Haven seeks to distinguish Pauls

on the ground that there the district

court remanded but retained jurisdiction

to review the final determination of the

Secretary of the Air Force. The

retention of jurisdiction was not the

basis for our determination that the

remand order was not appealable. .

- 10a -

} ;

reimbursement dismissed); Howell Vv.

Schweiker, 699 F.2d 524 (llth Cir. 1983)

(claimant may not appeal from order re-

manding to Secretary for further proceed-

ings); Eluska v. Andrus, 587 F.2d 996,

999-1001 (9th Cir. 1978)({order remanding

to Board of Land Appeals so that plain-

tiff may exhaust administrative remedies

not appealable even though once such

remedies are exhausted it may not be pos-

sible to review exhaustion order). See

also 15 C. Wright, A. Miller, E. Cooper,

Federal Practice and Procedure §§. 3914 at

pp. 551-553 (1976).

Exceptions have been recognized in

some cases, however, and appeals have

been allowed from orders remanding to an

administrative agency for further pro-

ceedings. See, e.g., United States v.

Alcon Laboratories, 636 F.2d 876, 884-885

(lst Cir.)(remand order putting in issue

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order in which agency enforcement action

should proceed appealable under Cohen

collateral order doctrine), cert. denied,

451 U.S. 1017 (1981); Gueory v. Hampton,

510 F.2d 1222 (D.C. Cir. 1975)(Chairman's

appeal from order remanding to Civil

Service Commission allowed); Paluso v.

Mathews, 573 F.2d 4 (10th Cir. 1978)

(Secretary's appeal from order remanding

for further proceedings with respect to

coal miner's application for benefits);

Citizens to Preserve Overton Park Vv.

Brinegar, 494 F.2d 1212 (6th Cir. 1974)

(no discussion of appealability), cert

denied, 421 U.S. 991 (1975).

Trying to make order out of the case

law, the City of New Haven argues that

whereas remands for factual development

may not be appealable orders, under a

practical conception of finality, dis-

trict court orders which determine an

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important legal issue, announce a new

standard, and impose a new legal standard

or procedural requirements upon the

agency in the remand proceeding should be

considered final and immediately appeal-

able. Indeed, citing a number of cases,

the City argues that that is in fact the

distinction the case law has drawn.

In particular New Haven relies heav-

ily on Bender v. Clark, 744 F.2d 1424

(10th Cir. 1984). There, a crucial issue

was whether a particular tract of land

contained a known geologic structure

(KGS). If it did, petitioner's noncon-

petitive oil and gas lease offer for the

land would have to be rejected and the

land could only be leased by competitive

bidding. The Interior Board of Land Ap-

peals determined that the government had

made a prima facie case of the existence

of a KGS and that petitioner had failed

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to show by “clear and definite evidence”

that the government had erred. Petition-

er sough? judicial review. The district

court concluded the Board had imposed too

high a standard of proof on petitioner.

Rather than “clear and definite" evi-

dence, petitioner need only prove govern-

ment error by a preponderance of the evi-

dence. Consequently, the district court

remanded to the Board for further pro-

ceedings applying the correct burden of

proof. The government appealed. In

determining whether the remand order was

immediately appealable, the Tenth Circuit

stated that “(t]he critical inquiry is

whether the danger of injustice by delay-

ing appellate review outweighs the incon-

venience and costs of piecemeal review.”

Id. at 1427. The court decided the mat-

ter in favor of immediate appeal stating

two reasons. First was the fact that the

- 14a -

——

standard of proof issue was a serious and

unsettled one. But second, “and perhaps

most important,” the court said, was that

the government had no avenue for obtain-

ing judicial review of its own adminis-

trative decisions and thus well might be

foreclosed from appealing the district

court's burden of proof ruling at a later

stage of proceedings.

In contrast to Bender, in the pres-

ent case the government has not appeal-

ed. In other words, the government is

not challenging the district court's rul-

ing (1) that the ‘Corps of Engineers may

not deny permits on the basis of socio-

economic harms unrelated to physical en-

vironmental changes and (2) that’ the

Corps violated its regulation in not giv-

ing Mall Properties an opportunity to

rebut the governor's opposition. Many of

the other cases on which the City of New

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aii |

Haven relies, see, e.g., Stone v. Heck-

ler, 722 F.2d 464, 467 (9th Cir. 1983)

(district court order ruling that Secre-

tary could not apply grid but rather must

use VE to enumerate specific jobs avail-

able and remanding for further proceed-

ings is immediately appealable by govern-

ment since, were the application of the

district court's legal standard to lead

to benefits being awarded on remand, the

Secretary would not be able to appeal);

Gueory v. Hampton, 510 F.2d 1222, 1225

(D.C. Cir. 1975)(unless review allowed

government probably never would be able

to test district court ruling); Gold v.

Weinberger, 473 F.2d 1376 (5th Cir. 1973)

(unless Secretary allowed to appeal re-

mand order, Secretary will not obtain

review of district court ruling that VE

required to interview claimant), are

similar to Bender in that an appeal from

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a remand order was allowed by the govern-

ment or government agency unlikely there-

after to be able to obtain review. In-

deed, we think the crucial distinction in

these cases is not -- as New Haven would

contend -- simply the fact that the dis-

trict court imposed a new or unsettled

legal standard on the agency, but rather

that unless review were accorded immedi-

ately, the agency likely would not be

able to obtain review.

The City of New Haven argues, how-

ever, that it is similarly situated to

the governmental agencies whose appeals

from remand orders were allowed for, the

City says, denying it review now is

tantamount to foreclosing any effective

review at all. That is because, the City

maintains, the district court decision

precluding the Corps from considering

socio-economic factors has removed from

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|

the Corps’ consideration the economic

interests at the heart of the City's op-

position to the permits and has effec-

tively terminated the City’s participa-

tion. The City is wrong. The City has

not been foreclosed from participating in

the proceedings on remand. Presumably,

it can urge environmental reasons why the

permits should be denied. If, after re-

mand, the permits are granted, the City

can seek judicial review and if the dis-

trict court upholds the grant, the City

can appeal to this court and both argue

that the original permit denial based on

New Haven's socio-economic developmental

interests was proper and present any

other challenges arising from the remand

proceedings it may have. Thus, review of

the socio-economic issue the City now

wants to present, is not denied; it is

- 18a -

simply delayed. 2 For this reason, the

remand order is not appealable under the

Cohen collateral order doctrine as the

third requisite for collateral order

appealability -- a right incapable of

vindication on appeal from final judgment

-- gee Boreri v. Fiat §.P.A., 763 F.2d

17, 21 (lst Cir. 1985) -- is not met.

3. The City’s argument that the dis-

trict court judgment may have res judi-

cata affect is wrong. A prerequisite to

the application of res judicata prin-

Ciples is a final judgment, Restatement

(Second) Judgments § 13 (1980), but, as

we conclude here, the district court

judgment remanding to the agency is not a

final judgment. Nor does the City’s

argument that on a petition for review

following remand the district court may

refuse to reconsider the socio-economic

issue persuade us otherwise. Under law

of the case principles that may indeed

happen. Nevertheless, the City will be

able to challenge on appeal the district

court's original (September 4&8, 1987)

decision.

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Moreover, contrary to the City's

argument, we think allowance of an imme-

diate appeal would violate the efficiency

concerns behind the policy against piece-

meal appeals. Were this court now to

order briefing on the socio-economic is-

sue, decide that issue and affirm the

district court, the case would be re-

manded and the Corps once again would

decide whether to issue the permit.

Likely another appeal would follow,

necessitating another round of briefs,

another familiarization with the record,

and another opinion. Our decision on the

socio-economic issue might turn out to

have been superfluous were the Corps on

remand to deny the permits on independent

proper grounds. More efficient and

quicker, in the long run, would have been

to delay review and consider all issues

at one time. Alternatively, were review

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granted now and were we to conclude the

district court erred, an unnecessary

administrative proceeding could be

avertes). 4 But this alone is insuffi-

cient ‘season to permit review. As the

Third Circuit observed in Bachowski v.

Usery, 545 F.2d 363, 373 (3d Cir. 1976)

when dismissing an appeal from a district

court order remanding to the Secretary of

Labor for further proceedings, “the wis-

dom of the final judgment rule lies in

its insistence that we focus on systemic,

4. However, according to the district

court opinion, Mall Properties had

several other arguments for vacating the

Corps’ order which the district court

found unnecessary to address since it was

remanding on other grounds; hence,

further proceedings in the district court

on these issues followed by another

appeal might result even if we were not

to rule in New Haven's favor on both the

socio-economic issue and procedural issue

concerning failure to afford Mall

Properties an opportunity to rebut the

governor's opposition.

- 2la -

as well as particularistic impacts." To

reach out to decide the merits of an in-

terlocutory order just because reversal

of an ‘erroneous interlocutory ruling

would expedite a particular litigants’

case would, in the long run, undermine

the final judgment rule and open the door

to piecemeal litigation and its concomi-

tant delay, costs, and burdens. See also

1i§ Cc. Weight, A. Miiier, 8. Cooper,

Federal Practice and Procedure § 3914 at

pp. 552-553 (strong showing of unusual

reason for avoiding the burden of further

administrative proceedings should be re-

quired before a remand order is treated

as final).

New Haven asks that if the remand

order is not a final appealable order we

construe New Haven's notice of appeal as

a petition for mandamus. We see no ex-

traordinary circumstances warranting the

exercise of mandamus jurisdiction.

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The request for oral argument on the

motion to dismiss is denied and the ap-

peal is dismissed for lack of jurisdic-

tion.

Since this appeal has been dismissed

on jurisdictional grounds, the motion of

North Haven League of Women Voters and

Stop the Mall/Connecticut Citizen Action

Group to file an amicus brief is denied.

Adm. Office, U.S. Courts --

Blanchard Press, Inc., Boston, Mass.

- 23a -

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 87-1827

MALL PROPERTIES, INC.,

Plaintiff, Appellee,

Vv.

JOHN O. MARSH, JR., ETC., ET AL.,

Defendants, Appellees,

CITY OF NEW HAVEN,

Intervenor-Defendant-Appellant.

JUDGMENT

Entered: March 1l, 1988

This cause was submitted on briefs

on appeal from the United States District

Court for the District of Massachusetts.

Upon consideration whereof, It is

now here ordered, adjudged and decreed as

follows: The appeal is dismissed.

By the Court:

4/s//

Clerk.

[cc: Messrs. Dewey, Richmond and Proto]

- 24a -

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MALL PROPERTIES, INC.,)

Plaintiff, )

)

Fi ) C.A. No. 85-4038-W

)

JOHN V. MARSH, )

Defendant. )

MEMORANDUM AND ORDER

WOLF, D.J. September 8, 1987

Mall Properties, Inc., a developer

of shopping malls, brought this action,

seeking an order vacating the denial by

the U.S. Aruy Corps of Engineers (the

“Corps") of an application for a permit .

under Section 10 of the Rivers and Har-

bors Act and Section 404 of the Clean

Water Act, 33 U.S.C. §§ 403 and 1344

(1982). The permit is required for the

development of a proposed mall on a site

in the Town of North Haven, Connecticut.

- 25a -

The court finds that the Corps’

order denying the permit must be vacated

because its decision was not made in ac-

cordance with law. Rather, the Corps

exceeded its authority (1) by basing its

a

denial of the permit on socio-economic

harms that are not proximately related to

changes in the physical environment and

(2) by not following its regulations

which required that Mall Properties be

provided notice and an opportunity to

attempt to reverse or rebut an objection

to the construction of the proposed mall

made by the Governor. of Connecticut.

These errors require a remand of the case

to the Corps.

I. BACKGROUND

Mall Properties is an organization

which for many years has sought to devel-

op a shopping mall in the Town of North

Haven, Connecticut. North Haven is a

- 26a -

Mai

suburb about ten miles from New Haven,

Connecticut.

As the proposed development would

involve the filling of certain wetlands

and open waters, Mall Properties must

obtain a permit from the Corps pursuant

to Section 404 of the Clean Water Act, 33

U.S.C. § 1344 ("Section 404") and Section

10 of the Rivers and Harbor Act, 33

U.S.C. § 403 ("Section 10”). Although

“the Corps administers a dual permit sys-

tem under two different statutes ... to

regulate dredge and fill activities,"

United Stat “er : —— Pe

Farms, C.A. No. 86-1983 (lst Cir. Aug.

18, 1987), the procedures and standards

utilized by the Corps, and in dispute in

the instant case, are equally applicable

to both acts. See 33 C.F.R. § 320 (1986).

The City of New Haven has consis-

tently opposed development of the mall.

- 27a -

It claims that a North Haven mall will

jeopardize the fragile economy of New

Haven, which all levels of government

have long been seeking to revitalize.

New Haven has actively participated in

proceedings before the Corps and in this

litigation.2”

As required by law, 33 C.F.R. §

320.4(a), the Corps conducted a public

interest review in connection with decid-

ing whether to issue Mall Properties the

requested permit. Acting for the Corps

in this matter was Colonel Carl B. Sciple.

1/The court allowed New Haven to inter-

vene as a defendant in this action under

F.R.Civ.P. 24. See Memorandum and Order,

May 12, 1986. Three environmental groups

-- the Connecticut Fund for the Environ-

ment, the Environmental Defense Fund, and

the Conservation Law Foundation -- were

denied leave to intervene, but allowed to

inform the court of their views as amicus

curiae. Id. These groups may also pre-

sent their arguments to the Corps in the

proceedings which must be conducted pur-

suant to the remand of this case.

- 28a -

On August 25, 1985, Colonel Sciple

denied Mall Properties’ request for a

permit. In the Record of Decision

("ROD") providing the explanation for the

denial, Colonel Sciple concluded by sum-

marizing the relative roles of various

factors in his decision. He wrote:

I have considered many factors

in my public interest review of

the applicant's proposal. Land

use is one of those factors,

and I recognize that the deci-

sion of state and local govern-

ment is conclusive as to that

factor. In the matter under

consideration, the views of the

state and the local government

about the proposed project are

different. While the land may

be used for a shopping mall

under North Haven's zoning reg-

ulations, the Office of Policy

and Management, Comprehensive

Planning Division, of the State

of Connecticut has taken the

position that the development

of a shopping mall at North

Haven is inconsistent with the

state's conservation and devel-

opment policies. But even

where state and local author-

ities give zoning or other land

use approval, a person conduct-

ing a public interest review

- 29a -

must make a thorough objective

evaluation of an application in

full compliance with applicable

laws and regulations (See 49 FR

39478 and 39479).

Therefore, in my public inter-

est review I considered factors

other than land _ use. Those

factors, where applicable, are

listed in 33 Code of Federal

Regulations Section 320.4(a),

namely, conservation, econom-

ics, aesthetics, general en-

vironmental concerns, wetlands,

cultural values, flood hazards,

flood plain values, navigation,

shore erosion and accretion,

recreation, water supply and

conservation, water quality,

energy needs, safety, flood and

fiber production, mineral

needs, considerations of prop-

erty ownership, and, in gener-

al, the needs and welfare of

the people.

The resubmission2’ presented

on-site wetland mitigation to

compensate for the most impor-

tant wetlands lost. Portions

of parking areas would be

raised, and additional flood

2/z

proposed Final Order denying

permit was issued on November 24,

Properties subsequently submitted

Mall

proposed modifications

agreed to consider.

- 30a -

the

1984.

which the Corps

ee

storage was proposed to lessen

previous flooding impacts.

Socio-economic impacts to New

Haven were proposed to be miti-

gated by the opening of three

anchor stores in 1987, delaying

until 1991 the opening of the

fourth anchor store, contribut-

ing $100,000 in job training

funds to the city of New Haven,

and petitioning the transit

authority to provide bus serv-

ice for potential mall employ-

ees of New Haven.

[The Colonel found that] al-

though there is still a net

loss in wetland resources, the

proposed on-site wetland crea-

tion, if successfully devel-

oped, would substantially com-

pensate for lost value of the

most important seven acres of

wood swamp and freshwater

marsh. Flooding impacts, al-

though lessened further and not

major, are nonetheless trouble-

some to me when viewed against

the policies of the flood plain

executive order and one of the

Corps basic missions of provid-

ing flood protection.

Still] ighi i]

however, is my concern for the

~ " - ' thi

project would have on the city

of New Haven. I had encouraged

the applicant to meet with the

Mayor of New Haven with the

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lita

hope that they would find com-

mon ground. Even though they

met, it was to no avail. While

the applicant has made propos-

als to mitigate socio-economic

impacts, including the most

recent one described above, he

has not, in my view, gone far

enough.

The Hartford regional office US

Department of Housing and Urban

Development has expressed con-

cerns about the mall from a

national and Federal perspec-

tive. (Recently there has been

an indication that these views

might be tempered at its Wash-

ington level.) Local elected

leaders have differing views on

the Mall. The First Selectman

of North Haven favors the Mall,

the Mayor of New Haven is op-

posed to the Mall. At the

State level, the Connecticut

Office of Policy and Manage-

ment, Comprehensive Planning

Division has stated that the

Mall is contrary to state urban

policies. Also. during my July

. I

have therefore concluded, that

this project is contrary to the

public interest and the permit

is denied.

ROD pages 45 to 47. (Emphasis added).

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Mall Properties subsequently filed

this action requesting that the order

denying the permit be vacated. In the

course of this case Mall Properties with-

drew its initial request for injunctive

relief in the form of an order requiring

issuance of the permit. Thus, it is not

disputed that remand to the Corps is the

sole appropriate remedy if Mall Proper-

ties prevails in this action.

Mall Properties requests that the

order denying its permit be vacated pri-

marily on the ground that the Corps im-

properly relief on the effect that the

North Haven mall would have on the econo-

my of New Haven in reaching its deci-

sion. Mall Properties also contends that

the Corps acted illegally in receiving

and relying upon an objection to the mall

by the Governor of Connecticut which it

- 33a -

was not afforded an opportunity to ad-

dress.2” The defendants assert’ that

Mall Properties’ claims are incorrect as

matters of law.

The parties filed cross-motions for

summary judgment. They agree that the

material facts are not in dispute. A

hearing was held on the cross-motions.

Thus, the case is ripe to be decided.

Il. THE STANDARD OF REVIEW

The standard of review to be applied

in this case is established by the Ad-

ministrative Procedure Act, 5 U.S.C. §

706(2) (A) (D) (1982). “The applicable

scope of review calls for determination

3/Mall Properties’ complaint also al-

leges several other grounds for vacating

the Corps’ order which, because the case

is being remanded, it is not necessary to

address.

- 34a -

of whether the Corps’ action was ‘arbi-

trary, capricious, an abuse of discre-

tion, or otherwise not in accordance with

law’ or ‘without observance of procedure

required by law.'”* Hough v. Marsh, 557

F. Supp. 74, 79 (D.Mass. 1982) (quoting

from 5 U.S.C. § 706(2)(A)(D)). See gen-

erally Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402 (1971).

III. CONCLUSIONS OF LAW

A. The Corps’ Reliance On The

Socio-Economic Impacts On New

Haven Was Not In Accordance With

Section 404, Section 10, or The

Corps’ Public Interest Review

Regulations.

AS the ROD states, the factor

“weighing most heavily” in the Corps’

decision to deny Mall Properties a permit

was the “concern for the socio-economic

impacts this project would have on the

City of New Haven.” ROD at 46. The

record reveals that these impacts would

- 35a -

it aeantnneiatttieelll

not result from any effect the mall would

have on the physical environment general-

ly or wetlands particularly. Rather, it

is the economic competition for New Haven

which would result from the mere exis-

tence of a mall anywhere in North Haven

which was the most significant factor in

the Corps' decision to deny the permit.

The Corps did find that there was no al-

ternative site for the mall in North

Haven. This, however, does not alter the

fact that there is in this case no proxi-

mate causal relationship between the im-

pact of the proposed development on the

natural environment and the economic harm

to New Haven which the Corps deemed most

significant in denying the permit.

Mali Properties contends that while

certain economic factors may properly be

considered by the Corps in deciding

whether to grant a permit, the Corps has

- 36a -

not been empowered generally to regulate

economic competition between communities

and to make political decisions as to

which community's economic interests

ought to be preferred.

The defendants contend that’ the

Corps has the unqualified right and re-

sponsibility to consider economics in

deciding whether to issue a permit. They

note that the relevant Corps regulations

state that the Corps review has “evolved

from one that protects navigation only to

one that considers the full public inter-

eet -54:,* 33: C.P.R §- 320.it6). See

generally, Power, The Fox in the Chicken

Coop; The Regulatory Program of the U.S.

Army Corps of Engineers, 63 Va. L. Rev.

503, 526-29 (1977)(describing evolution

of Corps jurisdiction from the manageable

job “of determining whether proposed

structure impedes maritime traffic to

- 37a -

public interest balancing."); Rodgers,

Environmental Law Air and Water 205

(1986)("Here is the corps famed ‘public

interest' review that reads like a parody

of standardless administrative choice.");

1902 Atlantic Ltd. v. Hudson, 574 F.

Supp. 1381, 1398 n. 16 (E.D.Va. 1983).

As explained below, consideration of

the purposes of Section 404 and Section

10, the relevant provisions of those

laws, the “public interest” review regu-

lations of the Corps, and the pertinent

case law persuades the court that the

Corps' action in this case was not in

accordance with law. More specifically,

the court concludes that in deciding

whether to grant a permit the Corps may

consider economic effects which are prox-

imately related to changes in the physi-

cal environment. The Corps may not, how-

ever, properly consider and give signifi-

cant weight to economic effects unrelated

- 38a -

to the impact which a proposed project

will have on the environment. Thus, the

Corps exceeded its authority in this case.

Section 404 (33 U.S.C. § 1344)

states:

(a) The Secretary [of the

Army] may issue permits, after

notice and opportunity for pub-

lic hearings for the discharge

of dredged or fill material

into the navigable waters at

specified sites.

(b) Subject to subsection (c)

of this section, each disposal

site shall be specified for

each such permit by the Secre-

tary (1) through the applica-

tion of guidelines ... which

..- Shall be based upon crite-

ria comparable to the criteria

applicable to the territorial

seas, the contiguous zone, and

the ocean under section 1343(c)

of this title, and (2) in any

case where such guidelines un-

der clause (1) alone would pro-

hibit the specification of a

site, through the application

additionally of the economic

impact of the site on naviga-

tion and anchorage.

- 39a -

The Secretary's authority to act under

this provision has been delegated to the

Corps. 33 ¢.F.R. -§°320.2(€).

Section 10 of the Rivers and Harbors

Act of 1899, 33 U.S.C. § 403 states:

[I]t shall not be lawful to

excavate or fill, or in any

manner to alter or modify the

course, location, condition, or

Capacity of ... any navigable

water of the United States,

unless the work has been recom-

mended by the Chief of Engi-

neers and authorized by the

Secretary of the Army prior to

beginning the same.

The Secretary's authority under this pro-

vision has also been delegated to the

Corps. -See 33 C.F.R. § 322.5.

In making its economic analysis in

this case, the Corps relied on the public

interest review regulation expressly ap-

plicable to both Section 404 and Section

10. That regulation, 33 C.F.R. §

320.4(a), provides that in deciding

whether to issue a permit the Corps must

- 40a -

- = sce enc

conduct a public interest review balanc-

ing the

benefits which reasonably may

be expected to accrue from the

proposal ... against its rea-

sonabl foreseeable detri-

ments.4% ... Among [the fac-

tors to be considered] are

conservation, economics, aes-

thetics, general environmental

concerns, wetlands, cultural

values, fish and wildlife

values, flood hazards, flood-

plain values, land use, naviga-

tion, shore erosion and accre-

tion, recreation, water supply

and conservation, water qual-

ity, energy needs, safety, food

and fiber production, mineral

needs, considerations of prop-

erty ownership, and in general,

the needs and welfare of the

people.

33 C.F.R. § 320.4(a).

The scope of the economic analysis

to be conducted by the Corps is not di-

rectly addressed in the regulations.

4/These provisions explicitly apply to

both the Clean Water Act and the Rivers

and Harbors Act.

- 4la -

Rather, although “economics has been in-

cluded in the Corps’ list of public in-

terest factors since 1970 .... there has

never been a specific policy on economics

in the regulations.” 5l Fed. Reg. 41207

(1986).

Therefore, the court in this case is

called upon to discern the scope of the

authority to consider economic factors

which has been delegated to, and exer-

cised by, the Corps. It is axiomatic

that this decision must take into account

the legislative intent reflected by the

stated purposes and policies of the rele-

5/

vant statutes. More specifically, as

3/As Justice Felix Frankfurter said:

Legislation has an aim; it seeks

to obviate some mischief, to

supply an inadequacy, to effect

a change of policy, to formulate

a plan of government. That aim,

FOOTNOTE CONTINUED

- 42a -

Pee eee era ne

rep > Paes

the Supreme Court has stated in ad-

dressing the effects which may be proper-

ly considered in deciding whether an En-

vironmental Impact Statement ("EIS") is

required under the National Environmental

Policy Act ("NEPA"), 42 U.S.C. § 4321, et

seq., courts must in cases such as this

consider the underlying policies of the

relevant statute in deciding whether an

actor should be held responsible under

that statute for certain effects of his

actions. Metropolitan Edison Co. v.

People Against Nuclear Energy et al., 460

FOOTNOTE 5/ CONTINUED:

that policy is not drawn, like

nitrogen, out of the air; it is

evinced in the language of the

statute, as read in the light of

other external manifestations of

purpose. That is what the judge

must seek and effectuate ....

F. Frankfurter, "The Reading of

Statutes,” in Of Law and Men 60 (1956).

- 43a -

U.S. 766, 774 n. 7 (1983)("In the context

of both tort law and NEPA, courts must

look to the underlying policies or legis-

lative intent in order to draw a manage-

able line between those causal changes

that may make an actor responsible for an

effect and those that do not.”).

"Section 404 of the Clean Water Act

was enacted ‘to restore and maintain the

chemical, physical, and biological integ-

rity of the Nation's waters.' 33 U.S.C.

§ 1251(a)(1976)(section entitled ‘Con-

gressional declaration of goals and pol-

icy')." Buttrey v. United States, 690

F.2d 1170, 1180 (5th Cir. 1982), cert.

denied, 461 U.S. 927 (1983). The plain

statement of legislative purpose con-

tained in § 125l(a) is echoed in the

legislative history which indicates that

Section 404 was enacted “to protect the

quality of water and to protect critical

- 44a -

wetlands ...." 3 Legislative History of

the Clean Water Act of 1977, 95th Con-

gress 2d Sess. at 532 (1978). Thus, the

purpose of Section 404 suggests that the

scope of economic inquiry which the Corps

has been authorized to conduct is con-

fined to consideration of effects related

to alterations in the physical environ-

ment.

The pertinent provisions of the

Clean Waters Act and the related regula-

tions reinforce the view that Section 404

only authorizes the Corps to weigh eco-

nomic effects related to changes in -the

physical environment. The statutory pro-

vision concerning permits for dredged or

fill material under which the Corps was

acting in this case is 33 U.S.C. § 1344.

Section 1344(b)(1) provides that Corps'

permit decisions must be governed by

guidelines based upon “criteria compara-

ble to the criteria applicable to the

- 45a -

territorial seas, the contiguouS zone,

and the ocean under [33 U.S.C. § 1343(c)]

-++-" The regulations developed to im-

plement § 1343(c) indicate that the

Corps, in implementing its authority

under § 1344(b), should consider “the

mature and extent of present and poten-

tial recreational and commercial use of

areas which might be affected by the

proposed dumping,” and the “presence in

the material of any constituents which

might significantly affect living marine

resources of recreational or commercial

value.” 40 C.F.R. § 227.18(a) and (h).

The example provided by the regulations

of what should be considered is the “re-

duction in use days of recreational

areas, or dollars lost in commercial

fishery profits or the profitability of

other commercial enterprises.“ 40 C.F.R.

- 46a -

:

;

{

§ 227.19. Thus, § 1344(b)(1), as imple-

mented by the relevant regulations, indi-

cates that the proper scope of the Corps’

public interest inquiry is limited to the

effects of impacts on the physical envi-

ronment, such as the commercial or recre-

ational value of areas directly affected

by a change in the environment.

Section 1344(b)(2) also illuminates

the proper focus of the Corps’ economic

inquiry. Section 1344(b)(2) provides

that the Corps may issue a permit “in any

case where [its] guidelines under §

1344(b) (1) alone would prohibit the

{granting of a permit], through the ap-

plication additionally of the economic

impact of the site on navigation and

anchorage.” This provision has been in-

terpreted “as justifying the Corps’ ap-

proval of discharges at a site if envi-

ronmentally preferable alternatives are

- 47a -

prohibitively expensive or pose a serious

impediment to navigation." Rodgers, En-

vironmental Law 406 (1977).

Section 1344(b)(2) has two pertinent

implications. First, § 1344(b)(2) does

not authorize denial of permits because

of economic harms; it only authorizes

issuance of permits because of economic

benefits that override environmental

harms. Rogers, supra at 202. Second,

and perhaps more importantly, the terms

of § 1344(b)(2) again indicate that the

relevant economic considerations are

those directly linked to the physical

environment, such as navigation and

anchorage.

The statutory language, legislative

history, and regulations concerning Sec-

tion 10 of the Rivers and Harbors Act

reinforce the view reached by the court

in analyzing Section 404. Indeed, as

- 48a -

Section 10 has evolved, it incorporates

the public review standards applicable to

Section 404, including the same limited

authority to ‘consider certain economic

factors.

Section 10 does not expressly pro-

vide for a public interest review or list

“economics” as a permissible criterion.

Section 10 of the Rivers and Harbors Act

of 1899 indicates that it was enacted to

protect the federal government's interest

in regulating the navigability of the

ccuntry’s waterways. See e.g. United

States v. Logan & Craig Charter Service,

Inc., 676 F.2d 1216 (8th Cir. 1982). The

major concern of the legislation was ob-

structions in navigable waters that would

interfere with interstate commerce on the

waterways. California v. Sierra Club,

451 U.S. 287 (1981). Thus, the economic

effects initially addressed by the

- 49a -

statute are those which relate directly

to changes in the physical environment.

The subsequent evolution of Section

10 does not suggest an intention to

authorize consideration of economic fac-

tors with a more attenuated relationship

to changes in the physical environment.

In the late 1960s, increased concern

about protecting the natural environment

led to an expansion by regulation in the

Corps’ review under Section 10. Deltona

Corp, v. United States, 657 F.2d 1184,

1187 (Ct.Cl. 1981), cert. denied, 455

U.S. 1017 (1982); Power, supra, at 510.

In 1968, the Corps revised its regula-

tions to include “public interest re-

view." Deltona, 637 F.2d at 1187.

Public interest review included consider-

ation of fish and wildlife, conservation,

pollution, aesthetics, ecology, and the

general public interest. Id. The March

- 50a -

4

:

SSD SL te ine. el RIGS EER

:

17, 1970 report of the House Committee on

Government Operations explained this ex-

pansion:

The [Corps] which is charged by

Congress with the duty to pro-

tect the nation's navigable

waters, should, when consider-

ing whether to approve applica-

tions for landfills, dredging

and other work in navigable

waters, increase its considera-

tion of the effects which the

proposed work will have, not

only on navigation, but also on

conservation of natural re-

sources, fish and wildlife, air

and, water quality, aesthetics,

scenic view, historic. sites,

ecology, and other public in-

terest aspects of the waterway.

H. R. Rep. No. 917, 91st Cong., 2d Sess.

at 5 (1970).

This report indicates that although

the interests to be considered under Sec-

tion 10 are no longer limited to naviga-

tion, they are all directly related to

impacts on the affected waterway.

In 1974, in order to “incorporate

the requirements of new federal legisla-

tion” including Section 404, Deltona, 657

- 5la -

F.2d at 1187, the Corps’ responsibility

to conduct a public interest review under

Section 10, among other provisions, was

expanded to include “economics; historic

values; flood damage prevention; land use

Classification; recreation; water supply

and water quality.” Id. See also Jent-

gen _v. United States, 657 F.2d 1210,

1211-12 (CtCl. 1981)(sic), cert. denied,

455 U.S. 1017 (1982). Thus, since 1974,

the Corps' public interest review under

Both Section 10 and Section 404 have been

governed by the same regulation which is

now 33 C.F.R. § 320.4. As described

earlier, analysis of Section 404 indi-

cates that the scope of the economic in-

quiry under 33 C.F.R. § 320.4 is limited

to effects proximately caused by changes

in the physical evironment. (sic) The

foregoing analysis of Section 10 suggests

the same conclusion.

- 52a -

a

iid ines Roh lis ala i

ee ee

.

:

%

4

|

A

2

a

q

5

The court*s conclusion that in de-

ciding whether to issue a permit the

Corps may not properly consider economic

factors unrelated to impacts on_ the

physical environment is consistent with

the rulings and dicta in the few reported

cases addressing the economic component

of the Corps’ public interest review.

The case most directly on point is the

Court of Appeals for the Fifth Circuit's

decision in Buttrey, 690 F.2d 1170. In

Buttrey a developer of residential homes

was denied a dredge and fill permit under

Section 404 to channelize a half-mile

stream in Louisiana. The plaintiff

argued that the Corps should have con-

sidered the public benefit that would

have flowed from about three million dol-

lars in jobs to build the houses. The

Court of Appeals, however, found that

- 53a -

“this is not the kind of ‘economic’ bene-

fit the Corps’ public interest review is

supposed to consider.” Id. at 1180.

Although contrary to defendants’

contentions, the relevant dicta in Hough

v. Marsh, 557 F. Supp. 74 (D.Mass. 1982)

is compatible with the decision in But-

trey. Hough involved the Corps‘ issuance

of a permit to build two houses and a

tennis court on wetlands adjacent to

Edgartown Harbor on Martha's Vineyard.

The court found that the proposed con-

struction would obscure, but not elimi-

nate, the view of the nearby Edgartown

lighthouse, an attraction on sightseeing

bus routes. Id. at 86 and 87. After

deciding a remand was necessary because

the developer had not demonstrated the

absence of practicable alternatives, the

court addressed the question of econom-

ics. It stated:

- 54a -

To complete the discussion of

the Clean Water Act, the court

notes ... additional factors

that the Corps failed to ad-

dress properly in connection

with the public interest review

mandated by 33 C.F .R. §

320.4(a) .... With respect to

[economics] ... the Corps did

mention the positive antici-

pated impact of the proposal on

jobs and municipal taxes but it

sidestepped any consideration

of adverse economic effects --

particularly ... the “elimina-

tion of an attraction (the

Edgartown lighthouse) on the

itinerary of sightseeing buses."

Id. at 86.

Thus, in Hough the court noted that

construction on the particular property

which implicated the Corps’ jurisdiction

would alter the physical environment,

obstruct a scenic view and, as a result,

have a cognizable economic effect on

Sightseeing bus operators. In contrast,

in the present case the economic effects

which the Corps deemed significant re-

sulted from the mere existence of a mall

- 55a -

anywhere in North Haven. These effects

did not derive from the potential impact

of development on the physical environ-

ment which triggered the Corps’ public

interest review. Thus, Hough is factual-

ly distinguishable from the present

case. The discussion of economic harms

in Hough is, however, also compatible

with the decision in Buttrey and this

court's conclusion that only § socio-

economic harms proximately related to

changes in the physical environment may

be properly considered by the Corps in

deciding whether.to issue a permit.

This court's. conclusion is rein-

forced by the reasoning and results of

analogous cases involving NEPA. See

Metropolitan Edison, 460 U.S. at 774;

Sierra Club v. Marsh, 769 F.2d 868 (lst

Cir. 1985).

In Metropolitan Edison the Supreme

- 56a -

ore hails

Court addressed the question whether the

Nuclear Regulatory Commission complied

with NEPA when it did not consider the

potential psychological health effects

caused by activating a nuclear reactor at

Three Mile Island. Although the case

involved NEPA rather than Section 404,

and the harm addressed was psychological

rather than economic, the Supreme Court's

reasoning and result is persuasive in the

present case.

In Metropolitan Edison the Supreme

Court explained by way of background that:

All the parties agree that ef-

fects on human health can be

cognizable under NEPA, and that

human health may include psy-

chological health. The Court

of Appeals thought these. propo-

sitions were enough to complete

a syllogism that disposes of

the case: NEPA requires agen-

cies to consider effects on

health. An effect on psycho-

logical health is an effect on

health. Therefore, NEPA re-

quires agencies to consider the

- 57a -

effects on psychological health

asserted by [Metropolitan

Edison].

Metropolitan Edison, 460 U.S. at 771.

Then the Supreme Court wrote in reversing

the Court of Appeals: "Although these

arguments are appealing at first glance,

we believe they skip over an essential

first step in the analysis. They do not

consider the closeness of the relation-

ship between the change in the environ-

ment and the ‘effect’ at issue.“ Id. at

772.

In explaining its decision the

Supreme Court emphasized that NEPA was

“designed to promote human welfare by

alerting governmental actors to the ef-

fect of their proposed action on the

physical environment.” Id. Thus, the

Court found “[tJo determine whether

[NEPA] requires consideration of a par-

ticular effect, we must look at the rela-

tionship between that effect and the

- 58a -

change in the physical environment caused

by the... federal action.” Id. at 773.

The Supreme Court indicated, however,

that not even all “effects that are

‘caused by’ a change in the physical en-

vironment in the sense of ‘but for’ cau-

sation [need be considered] ... because

the causal chain [may be] too attenu-

ated.” Rather, the Court found that NEPA

“included a requirement of a reasonably

close causal relationship between a

change in the physical environment and

the effect at issue.” Id. at 774,9/

If not every effect resulting from a

change in the physical environment is

§/The Corps' public interest regula-

tions themselves contain language famil-

iar to proximate cause analysis. 33

C.F.R. § 320.4(2)(1) states “the benefits

which reasonably may be expected to ac-

crue from the proposal must be balanced

against its reasonably foreseeable detri-

ments.”

- 59a -

cognizable under NEPA, Metropolitan

Edison makes it evident that effects un-

related to changes in the physical envi-

ronment may not be considered under NEPA.

The present case is analogous to

Metropolitan Edison. As discussed

earlier, Section 404 and Section 10 are,

like NEPA, concerned with the physical

environment. When there is a reasonably

close causal relationship between a

change in the physical environment and

economic factors, the Corps may consider

those factors in its public interest re-

view. Metropolitan Edison, however, in-

dicates that the Corps may not properly

consider and give significant weight to

other economic factors in deciding

whether to issue a permit pursuant to

Section 404 or Section 10.

Similarly, onmce again contrary to

Gefendants’ contentions, the Court of

- 60a -

—

;

:

:

:

}

:

'

Appeals for the First Circuit decision in

Sierra Club v. Marsh, 769 F.2d 868 (lst

Cir. 1985), is also compatible with the

conclusion that economic factors are cog-

nizable by the Corps only if they are

adequately related to impacts on _ the

physical environment.

Sierra Club involved the question

whether a cargo port and a causeway that

Main planned to build at Sears Island

would “significantly affect the environ-

ment" and, therefore, under NEPA, require

an EIS. Id. at 870. The First Circuit

found a “serious omission” in the Corps‘

decision not to require an WIS, namely

the “failure to consider adequately the

fact that building a port and causeway

may lead to the further industrial devel-

opment of Sears Island, ang that further

development will significantly affect the

- 6la -

environment.” Id. at 877 (emphasis add-

ed). As the Court of Appeals later elab-

orated, the Corps had before it evidence

that industrial development of the island

would lead to "2,750 new jobs in a town

with a population of under 2,500 ... in-

creased traffic ... additional lost scal-

lop beds and clam flats, more soil

erosion and aesthetic harm, a need for

additional waste disposal and water sup-

ply, an added threat to water quality

-" Id. at 880. Thus, in Sierra Club

the evidence indicated that construction

causing a change in the environment would

cause industrial development which would

further impact the environment in signi-

ficant respects. It was not an economic

impact alone -- but rather its relation-

ship to the environment -- which the

Corps was directed to consider.

Thus Sierra Club, like Metropolitan

- 62a -

——————

* Atm lhl

i

-

Edison, suggests that there must be a

reasonably close link between economic

factors and the physical environment for

the Corps to be legitimately concerned

about those economic factors in perform-

ing its function under NEPA. Once again,

a comparable conclusion is required when

the Corps is operating under Section 404

or Section 10.

As described previously, the pur-

poses and policies of Section 404 and

Section 10, the relevant provisions of

the statutes and regulaticns, and the

case law all indicate that the Corps may

not rely upon economic factors which are

not proximately related to changes in the

physical environment in denying a dredge

or fill permit. Therefore, because the

Corps gave significant weight to economic

factors not related to changes in the

physical environment in this case, its

- 63a -

decision was not in accordance with Sec-

tion 404 or Section 10.

B. The Corp's (sic) Action is Not

Authorized by NEPA,

The defendants contend that even if

Section 404 or Section 10 does. not

authorize the Corps to give significant

weight to the economic effect which a

North Haven mall would have on New Haven

in the context of this case, the NEPA

statute itself provides the necessary

authority. This contention, however, is

incorrect.

Defendants’ claim concerning NEPA

relies primarily on two arguments.

First, defendants rely on § 105 of NEPA,

42 U.S.C. § 4335 which states that “the

policies and goals set forth in this Act

are supplementary to those set forth in

existing authorizations of Federal Agen-

cies." See also Rodgers, vironmen

- 64a -

OS Sa, - SS Aer

Law Air and Water 204 (it is “clear that

the Corps’ Section 10 authority was sup-

plemented in some uncertain way by

[NEPA]."). NEPA, however, “does not ex-

pand the jurisdiction of an agency beyond

that set forth in its organic statute ...

and the Supreme’ Court has characterized

‘its mandate to the agencies [as] essen-

tially procedural.'" Cape May Greene v.

Warren, 698 F.2d 179, 188 (3d Cir. 1983)

(quoting Yermont Yankee Nuclear Power

Corp, v. Natural Resources Defense Coun-

cil, 435 U.S. 519, 558 (1978)); see also,

Olmstead Citi ; Bet! : x

vy. United States, 793 F.2d 201, 304 (8th

Cir. 1986)("(NEPA], while embodying sub-

stantive goals for the preservation of

our physical environment, imposes basic-

ally procedural obligations in pursuit of

these goals.").

In any event, it is not necessary to

- 65a -

decide whether, or to what extent, NEPA

enlarges the economic inquiry permitted

the Corps because NEPA clearly does not

authorize the reliance on the _ socio-

economic impacts given significant weight

by the Corps in this case. Metropolitan

Edison was a NEPA case. As described

earlier, it construed NEPA to authorize

consideration only of harms proximately

related to a change in the physical en-

vironment. That requirement is not met

in this case.

The Supreme Court's decision in

Metropolitan Edison also substantially .

Gisposes of defendants’ second argument

regarding the Corps’ authority under

NEPA. Defendants cite a series of pre-

Metropolitan Edison NEPA cases which

stated that: "When an action will have a

primary impact on the natural environ-

ment, secondary socio-economic effects

- 66a -

item

SR hy OER W fie a at

may also be considered." Image of Gr.

San Antonio, Texas _v. Brown, 570 F.2d

Si7?, S22 (Sth Circ. 1978). See also

Breckenridge v. Rumsfield, 537 F.2d 864,

866 (10th Cir. 1976); cert. denied, 429

U.S. 1061 (1977); Hanly v. Mitchell, 460

F.2d 640 (2d Cir. 1972), cert. denied,

409 U.S. 990 (1972); Como-Falcon Coali-

¥.26 2342, “246 “(6th Cir. 1979) cert.

denied, 446 U.S. 936 (1980); Nucleus of

w : 2 Vv » 524

F.2d 225 (7th Cir. 1975) cert. denied,

424 U.S. 936 (1980).

In Olmstead the Court of Appeals for

the Eighth Circuit addressed the con-

tinued vitality of such cases. 793 F.2d

at 206. Olmstead involved the proposed

conversion of a mental hospital campus

into a federal prison. As in this case,

the proposed action would not have had

- 67a -

significant impacts on the physical en-

vironment. Id. at 206. In addressing

the “oft -- quoted passage,” stating that

socio-economic effects are to be con-

sidered when the “action at issue has a

primary impact on the natural environ-

ment,” id., the Eighth Circuit stated:

[21%.-448 unlikely that such a

distinction survives the recent

Supreme Court holding in Metro-

politan Edison. That decision

-..- Was based on congressional

intent, and there is no sugges-

tion that Congress contemplated

that the process it designed to

make agencies aware of the con-

sequences of their actions with

regard to the physical environ-

ment would be converted into a

process for airing general pol-

icy objections anytime the

physical environment was impli-

cated. Such a rule would di-

vert agency resources away from

the primary statutory goal of

protecting the physical envi-

ronment and natural resources,

just as in Metropolitan Edi-

son. See 460 U.S. at 776, 103

S.Ct. at 1562. Furthermore,

courts even before Metropolitan

Edison had commented on the

anomaly of requiring that an

agency consider impacts not

- 68a -

sufficient to trigger prepara-

tion of an ecological statement

just because such a statement

was required for other unre-

lated reasons. E.g., Citizens

Route 675 v. Lewis, 542 F.Supp.

496, 534 (S.D.Ohio 1982)..

Olmstead Citizens' concerns

with crime and property values

would exist regardless of any

physical changes to the former

mental hospital campus.

Id. The Eighth Circuit's reasoning is

equally compelling in the instant case.

In addition, even if it were per-

missible for the Corps to consider unre-

lated socio-economic effects if the pro-

posed project has a primary impact on the

the natural environment, such considera-

tion would not be appropriate in this

case. Here, as in Qlmstead, the primary

impacts which concerned the Corps did not

involve the physical environment.

Rather, the Corps candidly stated that

socio-economic effects “weighed most

heavily" in its decision. ROD at 46.

- 69a -

Thus, the cases on which defendants sub-

stantially rely are inapposite even if

their persuasive value is not, as the

court finds, eliminated by Metropolitan

Edison.

Finally, the court has particularly

considered two cases upon which the de-

fendants rely heavily. The first is

Hanly in which the Second Circuit ex-

plained that the:

National Environmental Policy

Act contains no exhaustive list

of so-called “environmental

considerations,” but without

question its aims extend beyond

sewage and garbage and even

beyond water and air pollution

--.- The act must be construed

to include protection of the

quality of life for city resi-

dents.

460 F.2d at 647. In Hanly, the Court of

Appeals found that placement of a jail in

a marrow urban area directly across the

street from two large apartment houses

presented problems of noise, fears of

- 70a -

disturbances, traffic problems and other

“environmental considerations" within

NEPA. The court then found the General

Services Administration did not give ade-

quate consideration to the factors relat-

ing to the quality of city life.

Although Metropolitan Edison appar-

ently qualifies at least parts of the

Hanly ruling, particularly the reliamce

on fears of disturbances, the close prox-

imity of iris jail to the apartment

houses, and the court's focus on noise,

traffic problems and other “environmental

considerations" suggests that many of the

harms in Hanly were proximately related

to the change in the physical environment

which would be caused by the construction

of the jail. Thus, Hanly is factually

distinguishable from the instant case.

The other case heavily relied on by

the defendants is Dalsis v. Hills, 424 F.

- 7la -

Supp. 784 (W.D.N.Y. 1976). Dalsis in-

volved the construction of an enclosed

shopping mall in Olean, New York. The

U.S. Department of Housing and Urban

Development ("HUD") had funded demolition

of substandard buildings on the proposed

site and approved the mall.

Although the court found there was

no need for an EIS, in reaching that con-

clusion the court engaged in an environ-

mental analysis that involved socio-

economic considerations similar to those

presented in the instant case. The court

indicated that the harm to the environ-

ment would be “that excessive competition

from retail stores in the mall would lead

to blight and decay” in the form of

boarded up stores driven out of busi-

ness. Id. at 792. It appears that this

harm might be too attenuated to be cog-

nizable under Metropolitan Edison.

- 72a -

Nevertheless, there is another major dif-

ference between Dalsis and the instant

case: the agency involved in Dalsis was

HUD, while the agency involved in the

instant case is the Corps. As the plain-

tiff states, “HUD's consideration of

downtown business interests was necessi-

tated by the dictates of its implementing

statute; NEPA alone did not require such

a result.” Memorandum of Plaintiffs in

Opposition to Defendant's Motion for Sum-

mary Judgment at 30. The court finds

this distinction persuasive, although it

recognizes the distinction is implicit

rather than explicit in the district

court's opinion in Dalsis. Drawing this

distinction is consistent with the

Supreme Court's conclusion in Metropoli-

tan Edison that “the scope of the agen-

cy's inquiries must remain manageable if

- 73a -

NEPA's goal of ‘insur{ing] a fully in- |

formed and well-considered decision’ is

to be accomplished.” 460 U.S. at 776.

C. Conclusion Concerning Economic

Considerations

As set forth previously, the most

significant factor in the Corps’ decision

to deny Mall Properties its permits was

the socio-economic harm to New Haven

which the Corps perceived would result

from a mall anywhere in North Haven.

This harm was not proximately related to

any impact the development would have on

the natural environment. Thus, the

Corps’ decision was not in sccordance

with law.

It is elementary, but appropriate to

note, that in our system of government,

decisions concerning which competing con-

stituency’'s economic interests ought to

be preferred are traditionally made by

- 74a -

NT eT

democratically accountable officials.

The Corps seemed to recognize this when

it concluded its lengthy review process

by consulting the Governor of Connecticut

concerning whether building a mall in

North Haven was worth the risk to the

economy of New Haven.

The statutes implicated in this case

were enacted to protect the natural envi-

ronment. Apparently the Corps was given

a central role in this process because of

its expertise in matters relating to our

nation’s waterways. There is no sugges-

tion that it was perceived by those

enacting the relevant statutes to have

expertise concerning whether the economic

interests of aging cities or their newer

suburbs should as a matter of public pol-

icy be preferred.

This court is not now called upon to

determine whether the delegation to a

- 75a -

group of military engineers of such

broad, discretionary authority to deter-

mine public policy would be legally per-

missible, reasonable, or desireable.

Rather, the court is called upon to dis-

cern statutory intent. As the Supreme

Court noted in Metropolitan Edison, how-

ever, a broad grant of authority to the

Corps to decide general public policy

issues would require an agency to seek to

develop expertise “not otherwise relevant

to [its] congressionally assigned func-

tion." 460 U.S. at 776. This could

cause “the available resources [to] be

spread so thin that [the Corps in this

case would be] unable adequately to pur-

sue protection of the physical environ-

ment and natural resources." Id. In

Metropoiitan Edison the Supreme Court

found it could not “attribute to Congress

the intention to ... open the door to

- 76a -

such obvious incongruities and undesire-

able possibilities." Id. (quoting United

States v. Dowd, 357 U.S. 17, 25 (1958)).

This court reaches the same conclu-

sion in this case. The relevant statutes

do not reveal an intention to empower the

Corps to decide whether to issue permits

based upon an assessment of economic ef-

fects unrelated to impacts on the natural

environment. Nor do the relevant regula-

tions reflect an intention to attempt to

exercise such power. In the circum-

stances of this case the court will not

attribute to Congress and the President .

the Amention to delegate to the Corps

the power to deny Mall Properties a per-

mit because a mall anywhere in North

Haven would, in its view, unduly injure

the economy of New Haven while benefit-

ting North Haven. Here, as in Metropoli-

tan Edison, “the political process, and

- 778 -

not [Corps proceedings] provides the ap-

propriate forum in which to air [such]

policy disagreements.” Id. at 777.

D. The Meeting with the Governor

The plaintiffs contend that’ the

Corps did not act in accordance with law,

but rather acted without observance of

procedure required by law, when it failed

to follow the procedures established by

the relevant regulations relating to a

meeting with the Governor of Connecti-

cut. The Court agrees that the Corps did

not follow the legally. required proce-

dures relating to the meeting. This too

necessitates a remand.

On July 19, 1985 Colonel Sciple and

William F. Lawless, Chief of the Regula-

tory Branch of the Corps, met with the

Governor of Connecticut to discuss the

position of the Governor on the construc-

tion of the mall. At that meeting the

- 78a -

ee ee I eee

ae een ee

}

Governor “indicated that he felt it was

not worth the risk to New Haven of build-

ing the North Haven Mall.“ ROD at 47.

On August 25, 1985, the Colonel issued

his decision. The reference to the posi-

tion of the Governor, expressed at their

recent meeting, is the last factor men-

tioned before the Colonel stated that, "I

have therefore concluded, that this pro-

ject is contrary to the public interest

and the permit is denied.” Id.

The meeting between the Corps and

the Governor was not itself prohibited as

an ex. parte contact. 3s: Gra: Ss

320.4(j)(3) provides that: “[a] proposed

activity may result in conflicting com-

ments from several agencies within the

Same state. Where a state has not desig-

nated a single responsible coordinating

agency, district engineers will ask the

- 79a -

Governor to express his views or to des-

ignate one state agency to represent the

official state position.” Thus, the

meeting itself was not improper.

An issue in this case, however, is

generated by 33 C.F.R. § 325.2(a)(3),

which states: "At the earliest practic-

able time, the applicant must be given

the opportunity to furnish the district

engineer his proposed resolution or re-

buttal to all objections from other Gov-

ernment agencies.” It is evident that

the Colonel construed the Governor's com-

ments as an objection to the proposed

mall. It is undisputed that Mall Proper-

ties was not informed of the meeting or

of the Governor's objection until after

the final Record of Decision was issued.

See Federal Defendant's Cross-Motion for

Summary Judgment at 6l.

The defendants claim, however, that

- 80a -

no notification was necessary because the.

Governor merely reiterated a position

which the state, through the Office of

Policy and Management, had previously

expressed. Defendants claim the Governor

provided the Corps with no new factual

information. At most, they argue, the

Corp's(sic) failure to notify Mall Prop-

erties of the meeting was harmless error.

It is not certain at this point pre-

cisely dint the Governor told the Corps

and whether any of it was new in sub-

stance. The regulation, however, does

not Siecteestss “tetween new and old in-

formation. It states the “applicant must

be given the opportunity to furnish the

district engineer his iced” teéolution

or rebuttal to all objections ... before

final decision will be made on the appli-

eation.” 33 ¢C.F.R. § 325.2(a) (3).

Nor can it be credibly claimed that

- 8la -

the Governor's comments were immaterial.

The most important issue emerging from

the Corps’ lengthy public interest review

was whether New Haven's interests ought

to be preferred over North Haven's inter-

ests. As indicated earlier, this is the

type of political decision traditionally

made by a Governor of Connecticut. The

Corps has no special expertise in this

area. The Governor's position, even if

only a reiteration of the Office of Pol-

icy and Management's position, might un-

derstandably carry special weight with

the Corps...’

The Corps’ decision was announced a

month after it received the Governor's

views and it followed them. The refer-

ence to the Governor's opinion in the

penultimate sentence of the ROD indicates

that the Governor had the last word and

suggests that his objection to the mall

was influential, *£ not decisive.

~ 82a -

The relevant regulations required

that Mall Properties receive notice of

the Governor's objection so it could at-

tempt to persuade him to revise his views

or attempt to rebut any enduring objec-

tion. The Corps' failure to provide the

legally required notice of the Governor's

objection was not a harmless error.

E. Necessity for Remand

As indicated earlier, in denying

Mall propettiba a permit the Corps (1)

improperly considered and gave the most

significant weight to economic effects

not proximately related to impacts on ine

physical environment and (2) improperly

failed to give Mall Properties notice o

the Governor's objection to the proposed

mall. Each of these errors could have

materially affected the Corps’ decision

whether to issue the permit. It is un-

certain, however, whether the requested

- 83a -

permit would have been issued in the ab-

sence of either or both errors. In the

course of this case Mall Properties

agreed that remand to the Corps, rather

than an injunction ordering issuance of a

permit, would be the appropriate remedy

if it prevailed. Remand to the Corps is

now necessary - and appropriate. See

generally Faulker Hospital Corp. v.

Schwieker, 537 F. Supp. 1058, 1071 (D.

Mass. 1982), aff'd, 702 F.2d 22 (lst Cir.

1983); Quincy Oil, Inc, v. FEA, 468 F.

Supp. 383, 387-88 (D. Mass. 1979).

III. ORDER

For the foregoing reasons, this ec-

tion is hereby REMANDED to the United

States Army Corps of Engineers for fur-

ther proceedings consistent with this

decision.

September 8, 1987 //s//

UNITED STATES

DISTRICT JUDGE

- 84a -

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MALL PROPERTIES )

Paganecace, )

)

Vv. ) CIVIL ACTION NO.

) 85-4038-W

MARSH ET AL., )

Defendants. )

MEMORANDUM AND ORDER

WOLF, D.J. May 12, 1986

Mall Properties ("plaintiff"), 4

developer of shopping malls, brought this

action, seeking an order vacating the

denial by the Army Corps of Engineers

: (the “Corps") of an application for per-

| mits under Section 10 and 404 of the

Clean Water Act, 33 U.S.C. §§ 403 and

1344. The permits are required for the

development of the proposed mall on a

site in the town of North Haven, Con-

nites J ci tbctarcertts taebuinit las i

,

necticut located 10 miles north of the

City of New Haven, Connecticut. The

- 85a -

ee eete eee eee ee

is iain

plaintiff requests the order be vacated

primarily on the ground that the Corps

improperly considered economic factors in

reaching the decision to deny issuance of

the permits.

Three environmental groups -- the

Connecticut Fund for the Environment, the

Environmental Defense Fund, and the Con-

servation Law Foundation -- have brought

a joint motion to intervene as defendants

under Rule 24(a) or 24(b) of the Federal

Rules of Civil Procedure. The City of

New Haven has also brought a motion to

intervene as a defendant under Rule 24.

For the reasons stated below, the court

hereby denies the environmental groups’

joint motion to intervene and hereby

grants the City of New Haven's motion to

intervene.

The First Circuit requires that four

- 86a -

eee

conditions be met to satisfy a Rule 24(a)

motion to intervene:

To intervene of right under

Rule 24(a)(2), the prospective

intervenor must establish four

conditions: (1) the motion was

timely, (2) it has the requi-

site interest relating to the

property or transaction which

is the subject of the action,

(3) the action may as a practi-

cal matter impair or impede its

ability to protect that inter-

est, and (4) its interest is

not adequately represented by

existing parties. Moosehead

lips Corp., 610 F.2d 49, 52

(lst Cir. 1979).

United Nuclear Corp, v. Cannon, 696 F.2d

141, 142-43 (lst Cir. 1982).

The court finds that the environmen-

tal groups have not satisfied the re-

quirements for intervention of right,

because they have failed to show that the

environmental interests they allege would

be impaired or impeded by refusal to

grant intervention. In the present ac-

tion, the court will determine whether

- 87a -

the Corps exceeded its statutory author-

ity by improperly considering economic

factors in the decision. On this claim,

the court could either affirm the Corps’

decision or the court could remand the

case to the agency .+”

In either case,

the environmental interests which the

proposed intervenors seek to protect

would neither be impaired nor impeded.

If the court affirms the denial, the

environmental concerns would not be an

issue. If the court remands, the envi-

ronmental groups may present the environ-

mental arguments to the Corps. Such

argument will not be affected by the

court’s ruling on the “economics” issue

1/ plaintiff has withdrawn its request

for injunctive relief seeking issuance of

the permit. Therefore, remand would be

the appropriate remedy should the court

find for plaintiff.

- 88a -

ee ae et ee

in this case. Thus, the court finds that

the environmental groups have no right to

intervene under Rule 24(a). See Wade v.

Goldschmidt, 673 F.2d 182, 186 (7th Cir,

1982).

The environmental groups have pre-

sented an alternative request for permis-

sive interventon(sic) under Rule 24(b).

Permissive intervention is within’ the

court's discretion. Rule 24(b) provides:

In exercising its discretion

the court shall consider

whether the intervention will

unduly delay or prejudice the

adjudication of the rights of

the original parties.

These proposed intervenors seek to raise

a cross-claim alleging that the Corps

improperly considered environmental al-

ternatives. This claim raises a complex

question which would not otherwise be at

issue in this action. The claim would

become moot if the court were to affirm

- 89a -

the denial of the permits. Therefore,

the court finds that were intervention to

be allowed, the resolution of the orig-

inal controversy would be unnecessarily

complicated. For this reason, the court

denies the environmental groups motion to

intervene. See United States Vv.

Massachusetts Maritime Academy, 76 F.R.D.

595, 598 (D. Mass. 1977).*”

The court finds that the City of New

Haven has met the requirements for inter-

vention of right. The City of New Haven

seeks to intervene under Rule 24 primari-

ly to protect the economic interests the

Corps allegedly relied upon in denying

the permit. Therefore, unlike the envi-

ronmental groups, the City of New Haven

2/, The court invites the environmentai

groups to participate in this case as

amicus curiae on the issues raised by

parties to this action.

- 90a -

nee |

is directly interested in the “economics”

question which plaintiff has raised by

this action. An adverse ruling by the

court on this issue would limit’ the

City's ability to protect its interests

on remand.

Plaintiff argues that the Corps ade-

quately represents the City's interests

in this action. The City replies that

the government may not represent its in-

terest adequately, arguing that the gov-

ernment has a duty to protect the public

interest, while the City seeks to protect

its unique interests. The City has also

outlined the history of disagreements

between the Corps and the City which have

arisen during the permit litigation be-

fore the Corps. The court also notes

- 9la -

that the Corps does not object to the

City's intervention in this case.

In ‘Trbovich v. Mine Workers, 404

U.S. 528 (1972), the Supreme Court found:

The requirement of [Rule 24(a)]

is satisfied if the applicant

shows that representation of

his interest “may be" inade-

quate; and the burden of making

that showing should be treated

as minimal.

404 U.S. at 538 n. 10. The court finds

that the City of New Haven has made this

minimal showing. Therefore, the City of

New Haven's application to intervene must

be allowed under Rule 24(a).

For the reasons stated above, the

environmental groups' joint motion to

intervene is hereby DENIED and the City

of New Haven's motion to intervene is

hereby GRANTED.

May 12, 1986 Llsll

UNITED STATES DISTRICT

JUDGE

- 92a -

RECORD OF DECISION

SUBJECT: Application for a Department of

the Army Permit (No. 13-79-561) by Mall

Properties, Inc. to place fill in back-

waters and wetlands adjacent to the Quin-

nipiac River in the Town of North Haven,

Connecticut, in order to construct a re-

gional shopping center, North Haven Mall.

U.S. ARMY CORPS OF ENGINEERS INVOLVE-

MENT: The filling of approximately 31

acres of wetlands and open water areas,

some of which is tidal, triggers the in-

volvement of the U.S. Army Corps of En-

gineers' Regulatory Program requiring

authorization under Section 10 of the

Rivers and Harbors Act of 1899 and Sec-

tion 404 of the Clean Water Act.

BASIS OF DECISION: While Army involve-

ment results from the proposed filling of

- 93a -

waters and wetlands, the decision is

based upon a consideration of all factors

affecting the public interest.

PURPOSE OF THE RECORD OF DECISION (ROD):

The purpose of this ROD is to provide a

summarized record of the information used

in this permit action.

Ke Ne.ne Of Applicant: Mall Properties

Application No.: 13-79-561

yo Purpose, location and character of

the proposed mall:

a. The applicant's purpose for the .

proposed 1.1 million square foot, two

floor, North Haven Mall, containing four

major department stores (Figure 1), is to

promote private sector business engaged

in providing goods_ or services for

profit. The public purpose of the

proposal is to satisfy a need in the

metropolitan New Haven area for retail

- 94a -

hiew

shopping that provides a concentration,

variety and depth of shopper's’ goods,

department store-type merchandise,

apparel, and home furnishings, as well as

a number of services and entertainment

opportunities. The mall's principal mar-

ket area would include the cities and

towns of North Haven, New Haven, Walling-

ford, Hamden, North Branford, East Haven,

Bethany, Woodbridge, Orange, West Haven,

Branford, Guilford, Madison, Durham,

Middlefield, Meriden and Cheshire. The

applicant's proposal seeks to serve this

unserved need by developing the North

Haven Mall to provide a combination of

eachox shores and a diversity of special-

ty stores.

b. The project site lies along the

eastern bank of the Quinnipiac River in

the north central portion of North Haven,

Connecticut about 8 miles north of the

- 95a -

City of New Haven (Figures 2-5). It is

located near interchanges to Interstate

91 (I-91) and the Wilbur Cross Parkway

(CT Route 15), and lies directly adjacent

to Valley Service Road and the Amtrak

railroad line. Approach road alterations

will involve another 6 acres of land.

- 96a -

Ee ee es

PORTION OF ROD

INTENTIONALLY OMITTED

- 97a -

13. Conclusions:

a. Throughout our review of this

project it has been apparent that a major

concern is related to socio-economic im-

pacts, in particular, those affecting the

city of New Haven. There is no question

that New Haven provides services and an

environment for a community with a size-

able low to moderate income population.

This population is less able to travel to

reach services at other locations. It is

more dependent upon a vibrant, viable

city to provide services and a healthy,

safe and desirable environment.

b. New Haven had been on the de-

cline. Now however, there is a renewed

confidence in New Haven as evidenced by

the current major construction and re-

habilitation projects and a continued

committment (sic) by the United States

Department of Housing and Urban Develop-

ment to improve the Social and Economic

- 98a -

climate in the city. The city is experi-

encing a resurgence and private investors

are making and fulfilling committments.

(sic) This turnaround and upswing is

still fragile, though the degree of this

fragility is subject to varying opin-

ions. The construction of the North

Haven Mall has the potential for drawing

away some of the existing downtown busi-

nesses, but more significantly, those in

the future that are important to the

city’s continued positive trend.

c. We acknowledge the demand for a

facility such as the North Haven Mall to

meet the desires of the market area.

More Mobile shoppers would have a more

convenient facility, the applicant would

realize a profit and the town of North

Haven would gain increased revenues. At

the same time negative impacts on the

quality of life in North Haven is an out-

come some forsee. (sic)

- 99a -

dad. A second important factor upon

which this decision is based is the irre-

trievable loss of 25 acres of wetlands, 7

acres of which are particularly valuable

in providing good wildlife habitat and

food chain production.

e. A third factor is the cummual-

tive(sic) impact from other past, present

and reasonably forseable(sic) future ac-

tions affecting wetlands, floodplains and

flooding.

14. I have considered all factors af-

fecting the public interest, and after

weighing favorable and unfavorable ef-

fects as discussed in this record of de-

cision, I conclude that a greater public

interest would be served by allowing New

Haven to continue its revitalization

without the inherent risk posed by the

applicant's proposed mall. I therefore,

- 100a -

find it in the public interest, to deny

this permit.

15 Nov. ‘84 4/8//

- ‘Ola -

DEPARTMENT OF THE ARMY

NEW ENGLAND DIVISION CORPS OF ENGINEERS

424 TRAPPLO ROAD

WALTHAM, MASSACHUSETTS 02254

REPLY TO August 20, 1985

ATTENTION OF

REGULATORY BRANCH

Mall Properties, Inc.

ATTN: Mr. Richard Steinberg

635 Madison Avenue

New York City, New York 10022

Dear Mr. Steinberg:

This refers to your application for

a Department of the Army permit to place

fill in waters and wetlands adjacent to

the Quinnipiac River in North Haven, Con-

necticut for the proposed North Haven

Mall.

This permit is being denied under

Authority delegated to me by the Secre-

tary of the Army and Chief of Engineers

by Title 33, Code of Federal Regulations,

Part 325.8 pursuant to Section 10 of the

- 102a -

Rivers and Harbors Act of 1899 and Sec-

tion 404 of the Clean Water Act.

I have determined that the project

is contrary to the public interest. In

summary, I feel that the proposed mall

would lead to adverse socio-economic im-

pacts to the City of New Haven and

contribute to flooding impacts. The en-

closed Record of Decision provides the

basis for my decision.

Sincerely,

4/8/7/

Carl B. Sciple

Colonel, Corps of Engineers

Division Engineer

Enclosure

Copy furnished:

Mark Chertok

Sive, Paget & Riesel

425 Park AVenue

New York City, NY 10022

- 103a -

RECORD OF DECISION

SUBJECT: application for a Department of

the Army Permit (No. 13-79-561) by Mall

Properties, Inc. to place fill in back-

waters and wetlands adjacent to the Quin-

nipiac River in the Town of North Haven,

Connecticut, in order to construct a re-

gional shopping center, North Haven Mall.

U.S. ARMY CORPS OF ENGINEERS INVOLVE-

MENT: The filling of approximately 31

acres of wetlands and open water areas,

some of which is tidal, triggers the in- .

volvement of the U.S. Army Corps of En-

gineers' Regulatory Program requiring

authorization under Section 10 of the

Rivers and Harbors Act of 1899 and Sec-

tion 404 of the Clean Water Act.

BASIS OF DECISION: While Army involve-

ment results from the proposed filling of

- 104a -

fe ee ee ee ew

waters and wetlands, the decision is

based upon a consideration of all factors

affecting the public interest.

PURPOSE OF THE RECORD OF DECISION (ROD):

The purpose of this ROD is to provide a

summarized record of the information used

in this permit action.

i. Name of Applicant: Mall Properties

Application No.: 13-79-561

2. Purpose, location and character of

the proposed mall:

a. The applicant's purpose for the

proposed 1.1 million square foot, two

floor, North Haven Mall, containing four

major department stores (Figure 1), is to

promote private sector business engaged

in providing goods or services’ for

profit. The public purpose of the

proposal is to satisfy a need in the

metropolitan New Haven area for retail

~ 105a -

FIGURE 1

SITE PLAN OF PROPOSED MALL

North Haven Mall

Valley Service Road

North Haven, Connecticut

- 106a -

shopping that provides a concentration,

variety and depth of shopper's’ goods,

department store-type merchandise,

apparel, and home furnishings, as well as

a number of services and entertainment

opportunities. The mall's principal mar-

ket area would include the cities and

towns of North Haven, New Haven, Walling-

ford, Hamden, North Branford, East Haven,

Bethany, Woodbridge, Orange, West Haven,

Branford, Guilford, Madison, Durham,

Middlefield, Meriden and Cheshire. The

applicant's proposal seeks to serve this

unserved need by developing the North

Haven Mall to provide a combination of

anchor stores and a diversity of special-

ty stores.

b. The project site lies along the

eastern bank of the Quinnipiac River in

the north central portion of North Haven,

Connecticut about 8 miles north of the

- 1078 -

City of New Haven (Figures 2-5). It is

located near interchanges to Interstate

91 (I-91) and the Wilbur Cross Parkway

(CT Route 15), and lies directly adjacent

to Valley Service Road and the Amtrak

railroad line. Approach road alterations

will involve another 6 acres of land.

c. The proposed North Haven Mall is

planned for construction on approximately

76 acres of a 118 acre site. It will

require the filling of approximately 25.2

acres of freshwater wetland and 6 acres

of open water (Figure 6). The following

table presents a summary of the construc-

tion impacts by site characteristic and

acres:

Total Impacted Avoided

Mall Site 118 76 42

Upland 66 46 20

Wetland 42 25 17

Open Water 10 6 4

- 108a -

se:

FIGURE 2

REGIONAL LOCATION

North Haven Mall

Valley Service Road

North Haven, Connecticut

- 109a -

FIGURE 3

SITE LOCATION

iL” © Z2sage"

North Haven Mall

Valley Service Road

North Haven, Connecticut

- 110a -

FIGURE 4

AERIAL VIEW OF SITE

1* #» 1.425"

North Haven Mall

Valley Service Road

North Haven, Connecticut

- llla -

FIGURE 5

CLOSE-UP AERIAL VIEW OF SITE

North Haven Mall

Valley Service Road

North Haven, Connecticut

- ll2a -

CE AEE SD ORE Cs me PE BORE Rs ot rs

FIGURE 6

WETLANDS-SITE PLAN OVERLAY

North Haven Mall

North Haven, Connecticut

- 113a -

The wetlands to be filled are comprised

of wooded swamp (7.2 acres), shrub swamp

(17 acres), and marsh (1 acre). The

shrub swamp, marsh, and open water areas

are man made, the result of quarrying,

mining operations, and the creation of a

drainage ditch. An additional 21 acres

of wetlands and open water areas will

remain unaltered. Wetland filling will

Support portions of the mall, parking

areas and roadways. Fill will be clean

material taken from the construction of

an on-site detention pond and trucked in

from other upland sources.

3. Applicable statutory authorities and

regulations: Section 10 of the River and

Harbor Act of 1899 (33 U.S.C. 403) and

Section 404 of the Clean Water Act (33

U.S.C. 1344) as published in Title 33 CFR

Parts 320-330 dated 22 July 1982 and CFR

Parts 320, 323, 325 and 330 dated 5 Octo-

ber 1984.

- 1l4a -

4. Other Federal, State and Local

authorizations obtained, required or

pending:

a. Federal: A National Pollutant

Discharge Elimination System (NPDES) per-

mit is required for the stormwater being

directly discharged into the river. This

Federal permit process is administered by

the Connecticut Department of Environmen-

tal Protection (CTDEP) on behalf of the

Environmental Protection Agency (EPA).

On 17 November 1982, CTDEP decided to

approve the applicant's plans. If the

stormwater treatement(sic) system is con-

structed in full compliance with the 1982

approval, CTDEP intends to issue a final

NPDES permit.

b. State:

1) Water Quality Certification

-~ A water quality certification is neces-

sary for the discharge of fill material

- 115a -

under the provisions of Section 401 of

the Clean Water Act. The certifying

agency in this case is CTDEP. Though

they were informed of the project in

1979, CTDEP made a determination in the

fall of 1983 that they did not have a

valid request for such a certification.

The applicant filed a formal request with

CTDEP on 23 February 1984. Section 401

provides for a waiver of the certifica-

tion requirement if the State refuses or

fails to act on a request for certifica-

tion within a reasonable time. Our regu-

lations, Title 33 CFR, Section

325.2(6)(1)(ii), provide that the waiver

will be deemed to occur sixty days after

receipt of such a request unless we

determine a longer period is reasonable.

On 18 April 1984, we granted CTDEP on

extension until 31 August 1984 to com-

plete their water quality certification

- 1l6a -

oo mw

action. This was later extended until 17

September 1984 due to processing delays

encountered by CTDEP. Subsequent to our

April action, the applicant filed suit

against us demanding that the required

certification be considered waived. This

was filed in Federal District Court for

the Southern District of New York, Mall

Properties, Inc. v. John O. Marsh, No. 84

Civ. 2910 (CBM). A Water Quality Certi-

fication was issued by CTDEP on 17 Sep-

tember 1984.

2) Certificate of Operations -

Construction of the mall's access roads

will impact state highways through minor

alterations and increased traffic.

Therefore, authorization in the form of a

traffic certification is still required

from the Connecticut Department of Trans-

portation (CTDOT) State Traffic Commis-

sion. Their application was made on 8

September 1978.

- 117a -

3) Indirect Source Permit - When

plans for the North Haven Mall were first

formulated, the Indirect Source Permit

Program to assess air quality impacts

then applied to shopping malls. Such a

permit was granted by CTDEP Air Compli-

ance Unit on 9 August 1976. The program

now applies only to highways and airports.

c. Local:

1) Inland Wetlands Permit - A

permit was issued for the mall on 19 Sep-

tember 1974 by the North Haven Inland

Wetlands Commission. Following plan re-

visions, another permit was granted on 4

December 1978. On 26 February 1982 we

received a further endorsement for the

project from the Commission.

2) Site Plan Approval - The

North Haven Planning and Zoning Commis-

sion must still review the specific site

plans to determine their compliance with

- 118a -

tne town’s reguiations. tuvuuwiiy au puo-

lic hearing on 13 November 1974, North

Haven made numerous changes in their zon-

ing regulations ** provide for develop-

ment of a regionai shopping center.

3) Borrow Bank Approval -

Sources of the fill material to be hauled

to the site have not yet been deter-

mined. If there is a proposal to create

a borrow bank within the Town boundaries,

it will require Planning and Zoning Conm-

mission approval, a process that includes

a public hearing and designation of haul

roads and working hours.

4) Other - Other local approv-

als, such as a Building Permit and Subdi-

vision Approval, will be required once a

site plan is approved and construction is

ready to begin.

gd. Other:

1) In addition to approval by

the State Traffic Commission, the Mall

- 119a -

Drive underpass will require the approval

of Amtrak. In 1974, the Connecticut Pub-

lic Utilities Commission approved the

Town's application to construct the un-

derpass. The plans were submitted to

Amtrak in 1980 for review, but final ap-

proval has not been given.

$. Dates of application, public notice

and public hearing and summary of objec-

tions:

a. Upon notification of Corps jur-

isdiction, an application was received

from Mall Properties on 16 November 1979.

b. On 17 December 1979, we issued a

public notice adequately describing the

proposal and indicating that we had made

a preliminary determination that an Envi-

ronmental Impact Statement (EIS) was re-

quired.

c. In March 1980, we determined

that an EIS was necessary and on 8 April

- 120a -

1980 we issued a Notice of Intent in the

Federal Register notifying the public of

our intent to prepare and issue a Draft

EIS (DEIS).

d. Notice of the issuance of our

DEIS was published in the Federal Regis-

ter on 12 February 1982.

e. We conducted a public hearing on

16 March 1982 in North Haven to hear com-

ments on the permit application and the

DEIS. The hearing lasted two nights and

approximately 1500 people attended.

f. Notice of the issuance of our

Final EIS (FEIS) was published in the

Federal Register on 26 August 1983.

g. Our public involvement process

in this case, which began with our noti-

fication of the proposed project on 2l

March 1979, has been both extensive and

exhaustive. Over 9,200 comments, for and

against, have been received in the form

- l2la -

of letters, post cards, form letters and

petitions. Over 300 people attended sev-

eral EIS scoping meetings we conducted in

1980 and 108 people spoke at our 1982

public hearing. We also participated in

a radio talk and call-in show in New

Haven in September 1983. In addition to

being the subject ot numerous television

and radio newcasts,(sic) this project has

been discussed in national retail

magazines and hundreds of newspaper

articles. On 9 September 1982, the U.S.

House of Representatives’ Environment,

Energy, and Natural Resources Subcommit-

tee held a hearing in Washington on our

role in the preparation of the EIS and

our review of the application/under Sec-

tion 404. In addition to the above, we

have corresponded and/or met with many

groups including Stop the Mall/Connecti-

cut Citizen Action Group, North Haven

- 122a -

League of Women Voters, Connecticut Fund

for the Environment, Environmental De-

fense Fund, the Conservation Foundation,

Connecticut Audubon Society, New Haven

Downtown Council, New Haven Legal Assis-

tance Associates, and numerous. elected

and appointed local, state and congres-

sional officials. All comments received

on the DEIS have been included, with re-

sponses, in the FEIS.

h. As a result of the numerous op-

portunities for area residents, govern-

ment agencies, and the general public to

express their views, we have received

many objections to the proposed project.

The major areas of concern are:

1) The effect the proposed

fill would have on flooding.

2) The impacts associated with

the loss of wetlands and open water areas.

3) Whether a mall is needed or

- 123a -

wanted, and how a mall would affect North

Haven's character and social structure.

4) The increase in local traf-

fic in some residential areas and conges-

tion on access roads and at intersections.

5) The mall's potential eco-

nomic effect on surrounding communities

(particularly New Haven) if it is suc-

cessful. This would include the impacts

associated with the reduction in retail

sales at other major retail areas such as

the loss of jobs and taxable property and

revenues collected.

6) The practicability of al-

ternative sites and configurations.

7) Water quality impacts’ re-

lating to the proposed detention pond.

8) The potential impacts’ to

archaeological sites.

A discussion of these comments and

areas of concern is contained in the

paragraph below.

- 124a -

eh ee

i. An additional area of contro-

versy is the relationship of the prepara-

tion of our EIS and the proposed widening

of nearby Bishop Street by CTDOT. This

street has historical value and much mall

related traffic would pass over it.

Groups including the City of New Haven,

Stop the Mall and the League of Woman

Voters and many local residents’ have

claimed that the Bishop Street improve-

ments are necessary only to carry mall

related traffic and that the expenditure

of funds for widening is a decision

favoring the mall over. the historic

values. Hence, they feel that we should

have fully addressed the impacts related

to the roadway widening through our EIS

process.

Based on early coordination with the

lead Federal agency, Federal Highway Ad-

ministration (FHWA), and CTDOT, we deter-

mined that the Bishop Street project was

- 125a -

independent of the mall proposal. These

agencies indicated that considerations to

improve the street predated the planned

mall and that modifications are needed

even without the mall's presence.

Through their own environmental review

process, FHWA and CTDOT determined that

the roadway improvements would not have a

Significant impact on the environment,

hence, an EIS was not done. However, a

review of the impacts associated with the

Bishop Street project is discussed in the

following:

- Environmental Assessment for

the Proposed Widening of Routes 22

(Bishop Street) and S.R. 725 dated Febru-

ary 1980.

- Final Section 4(f) statement

for the widening of Bishop Street and the

Hartford Turnpike dated May 1983 approved

by FHWA June 1983.

- 1264 -

EE , _ gee

- Environmental Assessment and

Finding of No Significant Impact for the

widening of Bishop Street (Route 22)

dated August 1983.

These documents were prepared joint-

ly by FHWA and CTDOT. Under their juris-

diction and with their expertise, these

agencies have developed the rationale to

support decisions for conducting Environ-

mental Assessments instead of EIS‘'s. We

find that they have adequately addressed

the impacts of the roadway improvements

and we see no reason to question their

decision not to do an EIS. Nor did we

find it necessary to develop a Supple-

mental EIS for this matter. Subsequent-

ly, CT DOT reported that their final

Environmental Assessment and Findings of

No Significant Impact dated August 1984

(a revision of the 1983 document) was

approved by FHWA in September 1984.

- 127a -

In March 1984, the City of New Haven

formally requested that the Council on

Environmental Quality (CEQ) intervene in

this matter pursuant to the regulations

implementing the National Environmental

Policy Act (NEPA) which determine which

agency should be designated as “lead

agency” for preparation of EIS’s. CEQ

responded concluding that their involve-

ment would not be appropriate. They were

concerned with both the timing and pro-

priety of the City's request to appoint a

lead agency. Section 1501.5 of the CEQ

NEPA regulations was written to. provide

for the swift and fair resolution of a

dispute among agencies over which one of

them must take the lead in preparing an

EIS for a particular proposal. CEQ noted

that neither we nor FHWA had indicated a

need for a joint EIS covering both the

mall and the Bishop Street projects.

- 128a -

ee Te ey

They indicated that Section 1501.5 of the

CEQ regulations was not written to pro-

vide a means of resolving questions as to

whether an EIS should be prepared, what

the scope of a particular EIS should be,

Or similar questions. CEQ felt that in

this particular instance, New Haven was

asking the Council to intervene after two

agencies had pursued the NEPA process at

some length for two separate proposals,

and to require them to do a joint NEPA

review on the assumption that the two

proposals are integrally related. The

regulation in question does not envision

such after-the-fact determinations’ on

CEQ's part. It does provide for a means

of early resolution of an interagency

dispute. In this case, CEQ noted that it

was not early and there is no interagency

dispute.

- 129a -

6. Views of other Federal Agencies:

a. Environmental Protection Agency

(EPA) - During the scoping process and

our preparation of the EIS, EPA cooper-

ated in the review of information related

to a number of technical issues. These

included surface water resources and

water quality; storm water management;

sediment and erosion control; ground

water resources; air quality; noise im-

pacts; vegetation, wildlife and wetlands;

and alternatives.

EPA reviewed both our EIS and origi-

nal public notice on the permit applica-

tion in accordance with Section 309 of

the Clean Air Act, the National Environ-

mental Policy Act (NEPA) and Section 404

of the Clean Water Act. In a letter

dated 26 September 1983, they indicated

that, although a reduced scale mall and

the no action alternative were clearly

- 130a -

et ee

Ae ate te Sie ip eit ails a, Ata ila ec a A Ay Calla a a a

environmentally preferable, the project

as proposed would not cause unacceptable

environmental impacts and that it, in

their opinion, would comply with the

404(b)(1) Guidelines.

b. The Department of the Interior,

U.S. Fish and Wildlife Service (F&WS) -

1) F&WS was involved with us

in the preparation of the EIS as a coop-

erating agency in the areas of vegeta-

tion, wildlife and wetlands impacts, and

the assessment of alternatives. Their

Habitat Evaluation Procedures (HEP) Re-

port for the project site was included as

an appendix to the EIS.

2) Through a letter dated 31

March 1982 from the Dept. of the Interi-

or, F&WS expressed its opposition to the

project based on information in the DEIS

and Section 404 (b)(1) Review. They

- l3la -

questioned whether there was a clear dem-

onstration that no less damaging alterna-

tives were available. They felt that the

discharge of fill into the site's wet-

lands and waters will significantly af-

fect aquatic ecosystem diversity, produc-

tivity, and stability by eliminating

these values. They felt that additional

mitigation is necessary to compensate for

habitat losses. Subsequently, in July

1982, F&WS indicated that if we issued

the permit over their objection they may

seek elevation of the matter under our

1982 Memorandum of Agreement. The appli-

cant, F&WS and ourselves continued to

coordinate in the pursuit of additional

on or off-site wetland mitigation al-

though none was found at that time. A

further discussion of mitigation is pre-

sented below. F&WS did not submit any

additional comments on our Final EIS.

- 132a -

c. Department of Commerce, National

Marine Fisheries Service (NMFS) - By let-

ter dated 16 September 1983, NMFS indi-

cated, after a review of the FEIS, that

they have no comments since the proposed

project should not significantly affect

resources for which they have a responsi-

bility.

dad. Department of Housing and Urban

Development (HUD) -

1) Prior to our receipt of an

application, HUD requested that we pre-

pare an EIS because of the potential im-

pacts to the quality of the urban envi-

ronment and the economic and _ social

health of the New Haven area. They of-

fered to assist us in the EIS preparation

and the review of the permit application.

2) Primarily, this assistance

came in the form of a 1980 Community Im-

pact Analysis prepared by HUD‘s consul-

tant, Rivkin Associates. This study,

- 133a -

included as Appendix R of the EIS, was

done under former President Carter’s Com-

munity Conservation Guidance program.

This program was subsequently deauthor-

ized by President Reagan. The study

found that the permit should be denied

because the adverse impacts to the region

would outweigh the benefits of the mall

to the region. However, it was noted in

the document that its information was

limited to that available as of April

1980. It did not consider the necessary

analysis of retail sales inflows and out-

flows to the market area. Accordingly,

this preliminary analysis recommended

that our EIS give further consideration

to the mall's potential to reduce New

Haven's retail sales. Our EIS acknow-

ledges that there will be a substantial

impact to the city's downtown retail core.

- 134a -

3) On 25 March 1982, in re-

sponse to our DEIS, HUD stated that our

study had considered and taken into ac-

count the specific findings and conclu-

sions of their Community Impact Analysis.

4) In the Housing and Communi-

ty Development Act of 1974, as amended,

Congress declared it the policy of the

United States that, among other things:

"the future welfare of the Na-

tion and the well-being of its

citizens depend on the estab-

lishment and maintenance of

viable urban communities as

social, economic and political

entities, and require -- sys-

tematic and sustained action by

Federal, State and local Gov-

ernments to eliminate blight,

to conserve and renew older

urban areas, to improve the

living envioment(SIC) of low-

and moderate-income families;

and to develop new centers of

population growth and economic

activity;”"

Congress also stated that the “primary

objective [of this Act] is the develop-

ment of viable urban communities by pro-

viding decent housing and suitable living

- 135a -

environment and expanding economic oppor-

tunities, principally for persons of low

and moderate income”. Consistent with

the primary object, Congress declared

that Federal assistance should be di-

rected toward the following objectives,

among others:

"a more rational utilization of

land and other natural re-

sources and the better arrange-

ment of residential, commer-

cial, industrial, recreational

and other needed activity cen-

ters; and the reduction of the

isolation of income groups

within communities and geo-

graphic areas...”

An important mechanism for meeting these

objectives is the Urban Development Ac-

tion Grant (UDAG) which HUD may make “on-

ly to cities and urban counties which

have.... demonstrated results in provid-

ing housing for low- and moderate-income

persons and in providing equal opportuni-

ty in housing and employment for low- and

- 136a -

_— ane

so Sic lo en Iara

moderate-income persons and members of

minority groups.“ Its aim is to “create

permanent private sector jobs for low and

moderate income persons, tax base for the

community, and leverage private sector

investment."

5) New Haven is the seventh

poorest city (those over 100,000 popula-

tion) in the United States based on the

percentage of population below the pover-

ty line. 23% of its housing stock is

state or federally subsidized. HUD main-

tains a list of distressed urban cities

and counties to determine funding eligi-

bility and to assist them in prioritizing

the funding allocations. HUD considered

New Haven to be one of the most dis-

tressed small cities on their list of

distressed communities and they indicated

that New Haven competes well for fund-

ing. Of the approximate 800 urban cities

- 137a -

and counties eligible for funding consid-

eration, 413 pass the threshold as being

considered distressed. New Haven is the

36th most distressed out of the 413 based

on factors such as population below the

poverty line, age of housing stock and

population growth. For example, 23.5% of

its population is at or below the poverty

line, whereas, the average for other dis-

tressed communities is 16%; 52% of New

Haven's housing stock was built prior to

1940, whereas, the average is 37%; and

their population growth since 1960 has

declined by 17% while the other dis-

tressed cities have increased by 9.5%.

6) In a letter dated 5 Decem-

ber 1984, HUD presented us with a general

overview of their grant programs in New

Haven and their thoughts on the mall's

impact:

- 138a -

a) They indicated that

since the inception of the Community De-

velopment Block Grant Program in 1975 and

subsequent UDAGs, over $108 million in

grants have been awarded to New Haven to

assist in its social economic revitaliza-

tion efforts. These two major funding

programs have continued New Haven's pro-

gress initiated under the former Urban

Renewal Program during which over 300

million dollars was used for acquisition,

new construction and revitalization ef-

forts on a city-wide basis. HUD feels

that a degree of economic stability has

]

economic, social and [fiscal] difficul-

been realized but New Haven still [

ties. Revitalization activities are be-

ing continually expanded in an effort to

strengthen its social-economic well being

which is tied directly to a viable resi-

dential amd retail environment reflecting

- 139a -

a balanced racial and economic mix. HUD

notes that success will be ultimately

realized as long as investment continues

to surpass disinvestment.

b) HUD stated that’ the

mall would have a major impact on New

Haven's still fragile economic revitali-

zation with all federal efforts being

jeopardized by substantial and long last-

ing effects. They feel that the most

direct and profound effects would be that

on retail trade, employment, social ex-

change and the quality of physical ap-

pearance in New Haven'‘s Central Business

District and supporting neighborhood com-

merical(sic) and service centers. Such

diversion of both customers and tenants

away from their current locations would

create a slow growth condition and make

replacement difficult and more often im-

possible. The resulting vacancies sus-

tained over an extended time would very

- 140a -

likely accelerate deterioration in physi-

cal appearance and maintenance, further

loss of business, more vacancies and a

blighting influence on New Haven and sur-

rounding communities. Finally, HUD feels

that the “ripple effect” throughout New

Haven's economy could reduce the tax base

and its capacity to provide essential

services, subsequently increase tax

rates, further depress property values

and set back revitalizations efforts to

the early 1950 levels.

7) Currently, it appears that

private sector investment, with Federal

assistance through the UDAG program, is

the primary means for New Haven to con-

tinue to revitalize its urban base and

provide adequate public services. Their

continued willingness to provide funds,

demonstrates HUD's commitment to improve

the social and economic climate of New

Haven.

- 14la -

e. Federal Emergency Management

Agency (FEMA) -

1) FEMA has been involved with

this permit application as a cooperating

Federal agency Since early 1981 to

assess flooding related issues. In re-

sponse to our DEIS, they stated they had

no major objections to the techniques

used or the results presented in the doc-

ument to address the effects of the pro-

ject itself on flooding, relating to both

reduction of conveyance and the effects

of loss of valley flood storage volume.

However, FEMA noted that the reduction of

flood plain storage volume should be

avoided where possible. They felt that

even if the mall could be shown to have

no measurable impact on flooding, the

cumulative impact of reduction of storage

could increase flood peak discharges and

flood levels throughout the river basin.

- 142a -

ae.

They concluded that we should examine

alternative plans that would reduce the

flood plain fill. A further discussion

of the flooding issue is presented below.

2) Flooding information in the

DEIS was based on data and findings de-

termined under FEMA's Flood Insurance

Study for North Haven. On 6 June 1982,

the North Haven area experienced serious

flooding along the Quinnipiac River, in-

cluding the proposed mall site. We anal-

yzed this flood event and found some de-

viation from the previously calculated

flood elevations determined under the

FEMA study. Our analysis indicated that

previous flood levels were underestimated

by approximately 2.5 feet. Following a

review of our analysis, FEMA indicated

that the Flood Insurance Studies for all

affected communities along the Quinnipiac

should be revised using the updated sta-

tistical data. This was done, and in

- 143a -

November 1983, FEMA issued a proposed

revised Flood Insurance Study for North

Haven. The relationship of the results

of this study to the mall project are

discussed below. The site again experi-

enced flooding in late May 1984. This

event was analyzed and is also discussed

below.

f. U.S. Department of Agriculture,

Soil Conservation Service (SCS) - SCS was

asked to review the erosion and sediment

control plan for the project and other

information for the EIS such as impacts

related to geology, groundwater, soils

and topography. They felt that the final

detailed control plan should be coordi-

nated with themselves and the New Haven

County Soil and Water Conservation Dis-

trict and that similar plans should be

developed for borrow areas. Generally,

they indicated that if these measures

- 144a -

were worked out and properly implemented,

there should be no serious sediment and

erosion problems as a result of the pro-

ject.

g. U.S. Department of Transporta-

tion, Federal Highway Administration

(FHWA) - In addition to our coordination

over the Bishop Street project as noted

above, FHWA compared our DEIS’- with

CTDOT’'s Environmental Assessment. FHWA

found a good correlation between the two

documents and concluded that construction

of the mall would not have a significant

adverse impact on proposed Federal-aid

highway projects in the area.

h. Advisory Council for Historic

Preservation (ACHP) and National Park

Service, Keeper of the National Register

(Keeper) - During the preparation of the

DEIS, we determined that three archaeo-

logical sites in the permit area were

- 145a -

eligible for listing in the National

Register of Historic Places. We also

determined that they would be adversely

affected by mall construction. The

Keeper concurred with our eligibility

determination and the ACHP agreed with

our determination of effect. Both agen-

cies recommended recovery of any arti-

facts. A full discussion of this issue

is contained below.

i. Congressional Interests -

Throughout our process there has been

involvement with the Congressional inter-

ests representing Connecticut. This was

highlighted by former Connecticut Con-

gressman Tobey Moffett's 9 September 1982

hearing before the Environment, Energy,

and Natural Resources Subcommittee of the

House Committee on Government Opera-

tions. The purpose of this hearing was

to hear testimony on our role in the per-

mitting of the mall. Representatives of

- 146a -

the Army's Office of the Chief of Engi-

neers, Mr. Curtis Clark and Mr. Lance

Wood, attended the hearing. After indi-

cating that the Assistant Secretary of

the Army (Civil Works), Mr. William

Gianelli, had concerns with the poten-

tially serious legal difficulties of a

Congressional hearing on a pending permit

action, we participated in a discussion

of such issues as:

1) Our committment (sic) to

uphold the provisions of Sec 404 of the

Clean Water Act - We clearly stated that

we are fully committed to carry out the

letter and spirit of the regulations that

govern 404 permit actions.

2) Our procedures to indepen-

dently evaluate studies submitted by the

applicant for our EIS and our responsi-

bility to provide our own judgement(sic)

of whether a permit is in the public in-

terest - This was a significant area of

- 147a -

controversy with views presented by Sub-

committee members and our own representa-

tives. It was agreed that is our re-

ponsibility(sic) to provide a full

independent analysis of the technical

studies submitted to us by the appli-

cant's consultants. During the hearing,

statements we had prepared previously

regarding this issue were submitted for

discussion. We indicated that we had

taken che sonmemsindises to exercise care

in the review and evaluation of any data

submitted by the applicant. We agreed

that we had to ensure that the informa-

tion was accurate and valid and we were

sensitive to the possibility of biased

information. To assist us in obtaining

information and conducting our indepen-

dent review, we used our own internal

experts and solicited the aid of private

contractors and other cooperating agen-

cies who possessed the expertise or

- 148a -

jurisdication in appropriate areas of

concern. For example, we used our

hydrology/hydraulics elements and FEMA to

consider ponding and flooding; HUD and

private consultants to consider socio-

economic impacts; EPA to consider air/

water quality and wetland issues; and

F&WS to consider ecological impacts and

to provide the Habitat Evaluation Re-

port. Information received from mall

opponents was considered and used when it

was substantive and could be verified and

referenced for public review. When crit-

ical comments were submitted by the op-

ponents, our staff, or other Federal

State and local agencies, we considered

them on their merit and requested addi-

tions and/or clarification from the ap-

plicant when it was necessary.

3) The relationship of the EIS

and the North Haven Mall permit decision

- 149a -

- We explained that the EIS is not a de-

cision document. In reaching a decision

on an application, the EIS is considered

as one body of information among many.

It is not intended to be the only factor

considered in the review, nor is it the

determining factor. The decision on is-

suance of a permit is based on the full

public interest review contained in the

ROD.

The entire record of this hearing is

contained in the administrative file for

this decision.

Fe Views of State Authorities:

a. By letter of 9 March 1982, Gov-

ernor William A. O'Neill advised us that

his various state agencies would review

our EIS and comment in their particular

areas of responsibility and expertise.

Though the Governor has taken no position

for or against the mall, he did indicate

- 150a -

during a meeting with us in July 1985

that he felt it was not worth the risk to

New Haven of authorizing the mall.

b. Connecticut Legislators - We

have received correspondence from Senator

Robertson and Representatives Luppi and

Abercrombi in support of the mall. Sena-

tor Daniels and Representatives Berman,

Thorp, McCluskey, Mushinsky, and Strol-

berg have all expressed their concerns

over the project relating to flooding,

social and economic impacts.

c. Connecticut Department of Envi-

ronmental Protection (CTDEP) -

1) CTDEP limited its comments

to environmental impacts; however, they

noted that the economic impacts appeared

to be more significant than any to the

natural environment. In m letter dated

30 March 1982, they indicated that no

major adverse environmental impacts

- 15la -

should occur. Also, as noted above, a

NPDES permit and WQC are required from

CTDEP. At the time, they stated that

these two applications would be processed

concurrently, and that preliminary anal-

ysis showed that the mall would have no

Significant impacts to water quality in

the lower Quinnipiac.

2) They questioned the design

of the stormwater detention pond and its

dual role as providing a spawning area

for anadromous fish. We responded that

the proposed culverts have been sized and

located to permit normal flows between

the pond and the river. Under flooding

conditions, however, they will detain

flows entering the pond and cause reten-

tion of some floodwaters. Also, the

placement of the culverts through the

berm will permit flow between the river

and the pond under normal water eleva-

tions, allowing passage for fish between

- 152a -

the two water bodies. Both functions can

be adequately served without compromising

the retention function. The habitat

value gained will be worthwhile.

dad. Connecticut Office of Policy and

Management, Comprehensive Planning Divi-

sion (CTCPD) -

1) In response to both the

Draft and Final EIS, CTCPD indicated that

mall construction is inconsistent with

policies and/or plans contained in:

a) Executive Order 20

issued by Governor Ella Grasso on March

9, 1978 - This order defines the priority

urban goals of the State. CTCPD feels

that the project would contravene the

order's first goal which is to “revital-

ize the economic base of our urban areas

by rebuilding older commercial and indus-

trial area, and encouraging new enter-

prises to locate in the central cities in

- 153a -

order to protect existing jobs, and

create new job opportunities needed to

provide meaningful economic opportunity

for our inner city residents.”

b) 1982-1985 Conservation

and Development Policies Plan - This ad-

vises that new retail centers should be

developed only where justified by popula-

tion and sales growth and in areas not

already served by existing centers with

Similar variety and scale of stores.

They feel that several existing retail

centers when taken together provide the

proposed level of services. They also

related this project to guidelines for

state or state supported development

which discourage construction in flood

fringe areas.

2) CTCPD in conclusion found

that the mall was contrary to State urban

policies and the permit should be denied.

- 154a -

e. Connecticut Council on Environ-

mental Quality (CTCEQ) - In its role as a

“watchdog” and “Ombudsman” for environ-

mental protection concerns, CTCEQ pro-

vides advice to various state agencies.

As early as May 1979, this council asked

us to prepare an EIS. They have monitor-

ed the progress since and they indicated

that the economic issues had been given

too much weight in our deliberations.

They felt that such issues as energy con-

sumption and impacts to the Quinnipiac

needed further attention. Following pub-

lication of the FEIS, CTCEQ reiterated

their previous concerns indicating that

our study was lacking in its discussion

of impacts to wetlands, groundwater,

water quality and vegetative diversity.

They felt we understated the economic and

transportation impacts, and that we did

not fully address the no-action alterna-

tive.

- 155a -

f. Connecticut Department of Health

Services - This Department is concerned

about the addition of new sources of air

pollution in the project area. Though

new sources of air pollution are being

added, air quality standards are expected

to be maintained. Air quality impacts

are discussed below and more fully in our

EIS. They also felt that siltation

should be controlled and that, if it is

needed, a sewer pumping station should be

built above the 100 year flood level.

g. Connecticut Department of Agri-

culture - Aquaculture Division - In Janu-

ary 1980, this Department recommended

that the permit be denied because of the

potential degradation of water quality

with its resulting adverse impacts’ to

oyster seed beds downstream in New Haven

Harbor. In response to the DEIS, they

reiterated their concerns and asked that

- 156a -

.|

4

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3

5

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_

an adequate sedimentation and erosion

control plan be implemented and that no

work be performed in the Quinnipiac

watershed area between 1 June and 30 Sep-

tember to protect spawning shellfish.

This project will be subjected to an ade-

quate control plan. Since there is no

work in the river to significantly stir

sediments and cause increased suspended

solids, there does not seem to be any

need to require seasonal constraints.

h) State Historic Preservation

Officer (SHPO) - In response to our 1979

public notice, the SHPO noted the poten-

tial for the existence of archaeological

sites within the mall permit area. They

requested that a reconnaissance survey be

done. As a result, three sites of sig-

nificance were discovered and found to be

eligible for National Register listing.

On 24 October 1983, following a review of

- 157a -

a draft plan for the mitigation of these

three sites, the SHPO indicated that we

would meet our responsibilities in accor-

dance with the National Historic Preser-

vation Act, provided the plan is under-

taken.

i) Connecticut Department of

Transportation (CTDOT) - As noted above,

CTDOT has stated that the proposed widen-

ing of Bishop Street, Route 22, is inde-

pendent of the proposed mall develop-

ment. Their studies have shown that

widening is required tc accommodate fu-

ture development in the area even if the

mall is not built. They had no specific

comments on the proposed mall itself.

8. Views of Local Authorities:

a. Town of North Haven - From the

start of our involvement, North Haven

elected officials and agencies have con-

sistently supported the North Haven

- 158a -

Mall. The strongest endorsements have

come from the %ffice of First Selectman,

Walter Gawrych. Other local authorities

which have supported this project include:

1)

2)

3)

4)

5)

6)

7)

8)

9)

10)

Board of Finance

Engineering Department

Planning and Zoning Commis-

sion

Fire Chief

Economic Development Com-

mission

Department of Parks and

Recreation

Inland Wetlands Commission

Conservation Commission

Police Chief

Tax Assessor

No known local permits have been

denied for this project, though minority

opposition opinions have been expressed

by members of the Board of Selectmen,

- 159a -

Inland Wetlands Commission, Conservation

Commission, and Board of Finance.

b. City of New Haven - Just as

North Haven officials have consistently

endorsed the project, they City of New

Haven has been relentless in its total

opposition. Their opposition has been

led by the Mayor's Office (currently,

Mayor Biagio DiLieto) from initially in-

Sisting that we conduct an EIS to them

stating that our EIS process was inade-

quate. The City, through the Development

Administrator, Board of Aldermen, Office

of Economic Development, Office of Down-

town and Harbor Development, and the New

Haven Downtown Council, has raised numer-

ous concerns and has presented us with

much valuable information to assist in

our review process. Most of their con-

cern centers around the issue of economic

impacts. They feel that the mall would

- 160a -

Fett ee i eile)

be a devastating blow to the revitaliza-

tion of downtown New Haven, the historic

retail and cultural center for the re-

gion. Through continued coordination

with us,t he city has presented numerous

concerned opinions such as:

1) Downtown New Haven is a

viable alternative over a regional shop-

ping mall in North Haven for the provi-

sion of retail services.

2) Impacts to the minority

residents in New Haven.

3) If businesses close, there

will be a growing influx of retail stores

catering to a lower income population,

thereby throwing off the downtown social

balance.

4) That New Haven, as the re-

gional focal point, would be crippled by

the mall, and its capacity to provide the

facilities and services for the whole

region would be undermined.

~ 16la -

5) The mall would lead to a

transfer of 16-20% of sales from downtown

New Haven and an immediate closing of 20%

of the stores in downtown New Haven as

well as Sears in Hamden and many smaller

stores in Hamden, Wallingford, and other

established centers. This transfer of

sales will seriously undermine the tax

and employment base of hard-pressed com-

munities. New Haven could lose up to l.l

million dollars per year. Moreover, the

proposed Mall would produce no net gain

in regional employment or in tax revenues.

6) This proposal would not

only foreclose forever opportunities to

maintain and revitalize existing centers,

it will set off a cycle of decline which

cities and towns will be powerless to

reverse.

7) The economic impact created

by this proposal would seriously reduce

- 162a -

the attractiveness of the entire region

as a location for new office and indus-

trial development.

The majority of the city's concerns

are addressed in the discussion of vari-

ous factors below.

c. Other Municipalities - Several

other surrounding communities have com-

mented on the project such as:

1) Town of North Branford -

The Mayor of North Branford indicated his

support of the mall's construction at our

hearing.

2) Town of Guilford - The

First Selectman and Economic Development

Commission expressed neither support or

opposition, but indicated at our hearing

that North Haven residents should be able

to direct their own future without out-

side interference.

3) Town of Woodbridge -_ By

- 163a -

letter of 23 March 1982, the First

Selectman suggested that our decision

should not be affected by economic and

emotional fears.

4) Town of Wallingford - By

letter of March 25, 1982, the Wallingford

Conservation Commission stated their op-

position to the mall because of impacts

to flooding, wetlands, green space and

water quality.

5) Town of Hamden - The town

did not take a position for or against

the mall because they believe it to be

inappropriate for one community to seek

to influence potential economic competi-

tion in another. However, their Economic

Development Commission did present sever-

al comments regarding the economic stud-

ies in our EIS. The Hamden Office of the

Legislative Council recommended that we

deny the permit because the mall would be

- 164a -

an economic and ecological disaster.

9. Views concerning probable effects of

the proposed work on:

a. Navigation:

1) Based on our Navigability

Study of the Quinnipiac River, the river

is considered navigable and tidal to mile

13.5. The mall site is located at mile

12.11, hence, under our jurisdiction pur-

Suant to Section 10 of the River and Har-

bor Act.

2) In the traditional sense,

the Quinnipiac at this point does not

serve as a navigable waterway. Only

small craft such as canoes would be able

to traverse this waterbody. Since no

work will take place within the river,

there will be no impacts to its capacity

to support small recreational boats.

b. Flooding:

1) Early in our process we

- 165a -

became aware that flooding would be one

of the significant issues surrounding our

review. Hence, it has been studied to a

great degree. The majority of the pro-

ject site, located in the Quinnipiac

River floodplain, is within a Special

Flood Hazard Area inundated by a 100-year

flood event. Therefore, the applicant

has designed his project in an effort to

minimize flooding impacts.

2) The applicant's site plan

and our initial review in the DEIS was

based upon data and findings determined

under FEMA's 1980 Flood Insurance Study.

It indicated that the 100-year flood ele-

vation would be 12.7 NGVD at the mall

site. For our DEIS we used a more con-

servative estimate of 13.6° based on po-

tential developable land and tidal influ-

ences not accounted for by FEMA. The

first floor elevations for the mall

- 166a -

, 7 e ee ee Oe ae ee le eo ep ee ee

buildings are planned for 16'. As noted

above, we performed a hydrologic analysis

of the June 1982 flood, an event when

most of the site was flooded. Our anal-

ysis indicated that this storm approxi-

mated a 200-year event and that the 100-

year flood elevation would be more nearly

16' under normal tide conditions and up

to 17' NGVD if the 100 yr. discharge were

to occur coincident with a Long Island

Sound storm tide. Subsequently, FEMA has

published a preliminary revised Flood

Insurance Study, dated November 1983,

which showed that the 100-year flood ele-

vation was just under 15'. This study is

still undergoing internal agency review,

hence, FEMA has not published their final

flood elevations. Our 100-year level is

higher, primarily because we allowed for

normal tidal effect in our calculations.

FEMA agreed with our discharge frequency

~- 167a -

calculations at the site and our designa-

tion of the 1982 flood as a 200-year

event. The comparative flood studies,

reported in Appendix F of our EIS, were

also performed using 2, 10, 50 and 100-

year frequency floods based on FEMA's

1980 Flood Insurance Study. using our

post 1982 flood frequency update, includ-

ing a partial duration analysis, the

former 2-year flood is more nearly an

annual event, the 10-year more nearly a

5-year, the 50-year more nearly a 10-

year, and the former 100-year more nearly

a present day 50-year flood.. Though the

test floods are more frequent then(sic)

originally indicated, the comparative

flood studie:; remain relevant.

3) For our analysis of the

1982 event, we performed a review of peak

discharge frequencies on the river using

the then available 52 years of flow data

- 168a -

recorded by the U.S. Geological Survey at

Wallingford, CT. The annual peak flows

were statistically analyzed using a Log

Pearson Type III distribution and a fre-

quency curve was developed for the Wal-

lingford gage which indicated a l percent

chance (100 - year) flow of 7,000 cubic

feet per second (cfs). In late May 1984,

another moderately high flow was experi-

enced on the Quinnipiac. Therefore, we

did another review of the discharge fre-

quencies at the Wallingford gage. We

used the same Log Pearson Type III sta-

tistical analysis for a 54-year period

with a peak flow of 3,870 cfs for 1983

and the 31 May experienced flow of 3,670

cfs for 1984. The updated curve was

nearly identical to the previously devel-

oped 1982 curve. The 1 percent (100-

year), 2 percent (50-year) and 10 percent

(10-year) frequency floodflows at’ the

- 169a -

gage remain 7,000, 6,000, and 4,000 cfs,

respectively. The late May 1984 freshlet

flow on the Quinnipiac was not the result

of high intensity rainfall but a persis-

tent storm extending over a 4-day peri-

od. This storm was widespread resulting

in a major flood event on the lower main-

stem of the Connecticut River, but in

general was of less severity on the smal-

ler streams. The experienced 31 May peak

flow of 3,670 cfs on the Quinnipiac at

Wallingford represents a flow with an

estimated 12 percent (8-year) annual

chance of occurrence. River levels in

the vicinity of the North Haven Mall site

during this recent event reportedly

ranged from 11.9 to 12.7 feet NGCD. This

elevation is in agreement with the eleva-

tion discharge relationship developed for

the site in,the past June 1982 flood re-

view.

- 170a -

eS ae Se eee eee tt ni ————w os

4) Impacts discussed in our

FEIS and these findings are based on our,

more conservative 100-year flood eleva-

tion of 16°. However, as past analyses

illustrate, the 1 percent (100-year)

flood level is not necessarily constant

with time, nor is its determination an

exact science. The statistical determi-

nation of the 100-year discharge becomes

more refined with increasing numbers of

years of flow records, but peak discharge

rates can also change with time due to

changing runoff conditions in a water-

shed. Further, the hydraulic capacity

characteristics of a natural river chan-

nel can vary with time resulting in

either an increase or decrease in flood

levels, and the extent of debris build up

in a channel is a highly unpredictable

nemesis that can affect flood levels for

any given high flew event. Lastly it is

- ifla -

noted that the 1 percent chance (100-

year) flood has no particular signifi-

cance as an appropriate regulatory flood

level except that it has been widely

adopted and issued in the National Flood

Insurance Program as the minimum level of

flooding to be used by communities for

flood plain management regulations.

5) The mall's impacts on

flooding can be viewed in two ways:

a) The potential impact

of the project on flooding in the river

and the surrounding flood plain - Mall

construction would cause a net loss of

volume of temporary onsite storage of

floodwaters of up to 291 acre-feet for a

100-year flood. Our analysis shows that

this loss of volume would not increase

peak flood flows in the river because of

the small volume of storage available at

the site relative to the total volume of

- 172a -

the flood. It also shows that the mall

would have no reassurable impact on

- flooding in the river, not only because

of the sites relatively small storage

Capacity, but because of the earthen berm

along the river. This berm, which sep-

arates the mall site from the river chan-

nel, or conveyance way for floodwaters,

is higher than the 16° elevation. There-

fore, the site continues to be a back-

water area during floods and not a con-

veyance way that would be blocked by

filling. The capacity of the Quin-

nipiac's conveyance way will remain the

same with or without the mall.

b) The potential impact

of flooding on the mall itself - Lower-

level parking lots in the site's north-

west and southeast quadrants would have

more extensive flooding than originally

estimated. We found that a 10-year flood

- 173a -

event would begin to back water into some

of the lots and based on the frequency

and magnitude of high flows in recent

years, the threat of backwater ponding

could be expected almost annually. To

prevent damage to property and possible

personal injury, the applicant proposes

to implement a Flood Emergency Management

Plan to monitor potential flooding and

evacuate the lower lots when flooding is

probable. Details of this plan are con-

tained in the Appendix Supplement of the

FEIS. Floods greater than the 100-year

event could have a significant impact on

the mall, its inventory and operations

given the mall's present first floor de-

sign elevation. Based om our damage sur-

vey of a similar mall within New England,

recurring losses from a 200-year event

(such as the June 1982 flood) could be

expected to be in the $8-12 million

- 1744 -

range. Due to the infrequent nature o:

floods which would have an impact on th

mall itself, expected annual losses woul

approximate $40,000 to $60,000. Since

this mall would be constructed subsequen'

to the establishment of the Flood Insur:

ance Rate Map for North Haven, any floo

insurance under the National Flood Insur-

ance Program would be at actuarial o

true risk rates. There would be no fed.

eral subsidy for such policies.

6) With regard to stormwate

drainage, the proposed detention pon

would reduce the rate of flow currentl:

entering the river from the site and fro

areas draining through the site for al

but the smallest storms. River floodin

would not affect stormwater discharge

from the pond because the peak discharg

from the mall site would generally pre

cede the peak flow in the river.

- 175a -

7) In accordance with Execu-

tive Order 11988, we should avoid flood-

plain developments whenever practicable.

As demonstrated below and in our EIS,

practicable alternatives do not exist in

this case. To some extent, the impacts

of potential flooding on human health,

safety and welfare and the risks of flood

loses(sic) will be minimized through im-

plementation of the applicant's Flood

Emergency Management Plan. Also, through

the design of its detention pond and be-

cause of the site's minor flood starage

role, the beneficial values of flood-

plains will not be compromised. Whether

our or FEMA's elevations are used, the

effects from placing fill for the mall

would itself cause no measurable change

in flooding conditions. Although this

particular floodplain alteration may con-

stitute only a minor change, the cumula-

tive impact of such changes throughout a

- 176a -

river basin may result in a significant

degradation of floodplain values’ and

functions and in increased potential for

harm to upriver and downriver activi-

ties. There are no all-purpose rules

that can be applied regarding floodplain

alterations. However, aS a general pol-

icy and in accordance with the Executive

Order, we are opposed to the progressive

filling of floodplains. Though authori-

zation of a project in a floodplain could

be construed as setting a precedent for

unrestricted filling on a regional basis,

our policy is to review each case, not

only with regard to its potential hydro-

logic impacts, but its environmental,

social and economic trade-offs and im-

pacts as well. Since, we only have con-

trol/jurisdiction over those floodplain

activities that involve waterway or wet-

land filling, there is always the poten-

tial for floodplain alterations that

= 3?%a— ~

would not be subject to our public in-

terest review.

c. Fish and Wildlife:

1) Fish -

a) Placement of fill in

the existing ponds on site would result

in the mortality of some aquatic organ-

isms. No resource of significant human

Or economic value would be affected, nor

would the integrity of the resource be

affected in the region. The detention

pond has been designed to mitigate the

partial loss of some spawning area for

anadromous fish, such as herring, by al-

lowing for the free passage of fish to

and from the river. The river's aquatic

communities are not expected to be af-

fected by mall construction or opera-

tions. In particular, the identified

areas of soft-shelled clams and oysters

near the mouth of the Quinnipiac River

- 178a -

would not be affected by suspended solids

generated by the proposed development.

The implementation of the stormwater man-

agement plan and the sediment and erosion

control plan would result in fewer sus-

pended solids being contributed to the

river than occurs under existing condi-

tions.

b) With regard to the

proposed detention pond, anaerobic condi-

tions will develop in its deeper waters

resulting in generally poor habitat in

its lower depths and along the bottom.

The surface waters will remain oxygen-

ated, offering a greater volume of water

habitat than that provided by the exist-

ing ponds. Construction of the mall and

pond should not alter the reproduction

and growth of fish from the current con-

ditions.

2) Wildlife -

a) Vegetative diversity

is a significant factor in assessing

wildlife habitat impacts of the nine

vegetative communities found on the mall

site. Six of them, comprising 60% of the

site, only exhibit low diversity. The

remainder including upland forest, suces-

sional(sic) shrub, and wooded swamp wet-

land, exhibit relatively moderate divers-

ity. 24 of the 76 acres to be altered by

the project fall within these three vege-

tative categories. Suitable habitat for

a typical variety of wildlife species is

provided by these communities. A list of

observed species is contained in Appendix

B of our EIS.

b) During construction,

some wildlife mortality and displacement

will occur among less mobile groups of

animals, such as small mammals, reptiles,

‘- 180a -

and amphibians. For other species, such

as larger mammals and birds who may use

the area only for feeding and cover, the

displacement will be partial because

their home ranges are more extensive.

However, since other habitat areas that

they use could be at maximum carrying

Capacity, some losses of these larger

mammals or birds may occur. As portions

of the site revegetate after construc-

tion, some wildlife species, such as

small mammals and a variety of songbirds,

should reinhabit the . undeveloped = and

landscaped areas around the mall struc-

tures and parking areas.

c) Three uncommon spe-

cies, the great blue heron, osprey, and

common snipe, were observed one time each

during field surveys. They appear to be

transient in the project area, therefore,

impacts on them are expected to be min-

imal.

- 18la -

d) F&WS has developed a

list of endangered or threatened species

in Connecticut (no plant species have

been included). None of these species

have been recorded on the site, nor is it

likely any will be in the future, because

there is no suitable habitat in the vi-

cinity. Several Connecticut plant spe-

cies are considered rare, however, none

of these were found on the site.

dad. Wetlands:

1) The project will eliminate

7.2 acres of wood swamp, 17 acres of

shrub swamp, and 1 acre of marsh (see

Figure 6). This represents all of the

marsh and shrub swamp on the property and

29% of the wood swamp. Based on a 1972

inland wetlands map for the town, approx-

imately 2,100 acres of wetlands are lo-

cated in the town. Of this, approximate-

ly 900 acres or 43% occur along the

Quinnipiac River.

- 182a -

2) The wood swamp, that occurs

in the northern and southern portions of

the site, is the most diverse in terms of

plant species and diversity. They ex-

hibit well-defined vertical stratifica-

tion and good spatial diversity. The

wood swamp provides good food chain pro-

duction and good wildlife habitat. Shrub

swamp occurs in the central portion of

the site, primarily where gravel mining

occured. (sic) It has low plant diversi-

ty, but provides some foodchain produc-

tion and limited wildlife habitat. The

two areas of freshwater marsh to be lost

total 1 acre. One area is natural, has

good plant diversity, and because of its

position next to wood swamp, provides

good wildlife habitat. The other area

was created by gravel mining operations.

It is characterized by Phragmites and has

low value as wildlife habitat.

- 183a -

3) As discussed in our EIS,

the site's wetlands do not play a signif-

icant role in the area's overall drainage

patterns because most of the upland

drainage is diverted through the property

via a channel constructed through the

middle cf the site when I-91 was con-

structed. The drainage does not pass

through the majority of the wetland

areas. Therefore, the site's wetlands do

not effectively contribute to control of

sedimentation or flushing action, store

storm water, or purify water through fil-

tration. In addition, the groundwater

recharge potential of the site's wetlands

is limited because of the relatively slow

rate at which water passes through the

soils in these areas and the presence of

thick clay deposits beneath some of

them. Also, areas of low topography in

relation to surrounding topography tend

- 184a -

to be discharge areas for most of the

year. As a result, it is unlikely that

precipitation over the wetlands would

have the entry location, pathway, or suf-

ficient time to supply groundwater re-

serves before the river's influence would

carry runoff downstream.

4) Mitigation:

a) On-site - On-site wet-

land mitigation was investigated, partic-

ularly in the northwestern segment of the

site, beyond the fill area. This portion

of the site is presently composed of

wooded swamp, upland forest, successional

shrub, and old field vegetative community

types. As planned, this area will remain

untouched as part of the project's buffer

zone. As such, it maintains some of the

site's best vegetative and wildlife di-

versity. To convert the area to wetland

could reduce the diversity of the site.

- 185a -

For this reason, wetland creation in this

section is not logical. Wetland creation

to the southwest of the development area

is precluded by existing wetlands and the

propose detention pond.

b) Off-site

(1) Army policy on

off-site mitigation for wetland impacts

is that it will be sought on a case by

case basis as may be necessary to comply

with the 404(b)(1) guidelines or to

otherwise satisfy public interest re-

quirements. When there are significant

losses which are specifically identifi-

able, reasonably likely to occur, and of

importance to the human or aquatic envi-

ronment, and on-site mitigation is not

sufficient to bring the project into com-

pliance or satisfy the public interest,

off-site mitigation may be accomplished

where it is practicable and reasonably

- 186a -

enforceable. Off-site mitigation was

considered, but we felt it was not war-

ranted for this project when viewed

against the character of the wetlands

being filled, much of which are of low

value and impacted by gravel mining op-

erations.

(2) The applicant on

his own, however, decided to investigate

off-site wetland mitigation and has made

a considerable effort to seek, through a

variety of means, sites practicable for

either acquisition or the procurement of

conservation easements. The applicant's

consultants conferred with us and F&ws,

and other public officials and private

parties. They reviewed documents, under-

took numerous field visits and developed

mitigation plans for potential sites.

Several sites were considered (eight in

North Haven, cne in Hamden, anc Community

- 187a -

Lake in Wallingford), the most feasible

of which was located just north of the

mall site at Wharton Brook.

a) The appli-

cant's consultants met with representa-

tives of the owner of this site to dis-

cuss the possibility of acquisition or

conservation easements. The consultants

undertook field investigations of the

vegetation and wetlands on the site and

proposed alternative configurations to

facilitate mitigation. F&WS assisted the

applicant's consultant in preparing a

base line survey, using the same proce-

dures as the HEP done for the mall site,

to determine existing habitat values.

During further discussions with the Whar-

ton Brook site owners, the size of the

parcel available for acquisition was re-

duced from 30 to 21 acres. An additional

- 188a -

mitigation plan was then developed. Sub-

sequent discussions revealed other re-

strictions upon the proposed site. The

owners wanted to retain the right to con-

struct a railroad spur over a portion of

the site and he insisted that there be no

public access to the site. The spur

would cross the area which contains the

least diverse vegetation and which was to

be the location for a proposed pond. The

pond was to provide edge marsh and wet-

lands, the portion with the greatest HEP

potential. Finally, this mitigation site

became impracticable when the acquisition

and development costs exceeded $1 million.

b) A review of

the other nine sites indicated limited

opportunity to create or improve wetlands

and/or open water areas, and the values

of the parcels were such that improvement

of wildlife conditions would not meet the

- 189a -

AYR A UP) SPSS SRD MIWA, IRD SL UE ARS SNe BS BY ay

compensation suggested by the HEP pro-

cess. In addition, most of the parcels

were not contiguous to the Quinnipiac.

e. Water Quality:

1) Water quality in the Quin-

nipiac has been affected by a large popu-

lation and heavy commercial and indus-

trial activities located in the drainage

basin. It is presently designated as

Class C by CTDEP defined as having good

aesthetic value and being suitable for

fish and wildlife habitat, recreational

boating, and certain industrial pro-

cesses. The attainment goal is Class B,

and the objectives are administered

through the water quality certification

program.

2) The project will cause

slight increases in urban runoff contami-

nants, such as_ lead, cadmium, oils,

grease and chlorides within the river.

- 190a -

PAYEE WHINY PAGE CP Sgt ake SR) ad) ea yi Sad IG ey

or’

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As noted in our EIS, these increases

would be negligible in comparison to

existing base loads.

3) Of more concern is the po-

tential degradation of water quality

within the detention pond. The pond will

stratify during summer months because of

thermal and chemical differences between

the epilimnion (surface layer) and hypo-

limnion. This could produce low oxygen-

ated or anoxic bottom conditions. An

aeration system may be required to alle-

viate these conditions should they oc-

cur. We and the applicant have developed

a program to monitor this’7 situation.

This program would be a condition of our

permit if the mall is to be built. In

addition, monitoring of the pond's dis-

charge would be required under the

state's stormwater discharge permit and

Water Quality Certification to insure

- 19la -

compliance with State water quality stan-

dards.

£. Aesthetics:

1) Views of the site from sur-

rounding areas are restricted because the

site is situated away from the majority

of residential and commerical(sic) use

areas. The views to be affected by the

proposed mall are from residences to the

west of the site on the hillside beyond

the Wilbur Cross Parkway. The general

viewing areas are illustrated on Figure

7. The residences to be affected are 110

to 260 feet higher than the site and

2,000 to 4,000 feet from it. Therefore,

a view of the mall is possible from ap-

proximately 20 to 30 residences along

Kings Highway and the Hartford Turnpike.

Residences around Upper State Street are

Situated at lower elevations and do not

have horizon vistas of the existing

- 192a -

FIGURE 7

TOWN OF NORTH HAVEN ZONING MAP

AREAS WITH VIEWS OF THE SITE

1° = 2,250'

North Haven Mall

Service Road

North Haven, Connecticut

Source: Appendix M, Community and Visual

Quality

- 193a -

site. From these locations, the _ site

presently appears as a large, open and

generally green area during spring and

summer. The mall would change the site

to one characterized by a large complex

of white stone buildings and a blacktop

parking area. The mall would also be

seen from southbound lanes of I-91 and

the Amtrak railroad lines. This impact

would be of short duration (20 to 30

seconds) to passing cars and would not be

obtrusive or inconsistent with other

views. In addition, resident, primarily

west of the site, may be affected by an

increase in night sky brightness and glow

from the parking lot lights. Their dis-

tance and higher elevation should help

diminish these impacts. The applicant

plans to attach light shields to the fix-

tures to minimize light spillage, and to

reduce lighting by 75% after llpm.

- 194a -

2) There will be a definite

change in the site's visual characteris-

tics, particularly as viewed from the

residential areas to the west. Though

efforts can be taken to landscape the

mall area, it will be impossible to com-

pletely disguise its large-scale commer-

cial character.

g. Cultural and Historic Values:

1) No impacts on historic

structures are anticipated at the site as

a result of mall construction or in any

of the areas to be modified for traffic.

CTDOT's proposed Bishop Street widening,

which would accommodate mall-related

traffic, may impact the proposed North

Haven Bridge Historic District. As noted

above, this roadway project is justified

even without mall construction. CTDOT

has reviewed potential impacts to this

- 195a -

historic area. Traffic increases gener-

ated by the mall should not cause signif-

icant increases in air or noise pollution

along this historic street.

2) Archaelogical(sic) investi-

gations revealed three sites eligible for

listing in the National Register of His-

toric Places. They could provide signif-

icant information about local and region-

al prehistoric lifestyles. Development

of the mall could either damage artifacts

Or compact the soil enough to destroy

stratigraphic data at all three sites.

As detailed in our EIS, the location of

these sites preclude feasible alterna-

tives that would avoid adverse effects.

Two of them would be located under pro-

posed buildings and/or parking areas and

the third would be under an access road.

Therefore, we have made a finding that

there will be adverse impacts to these

archaelogical(sic) resources.

- 196a -

3) We contacted the Department

of the Interior regarding recovery and

they indicated that there are no funds

available in their program for such re-

covery. They indicated they seldom re-

ceive requests for such funding. Based

upon our assessment of impacts to archae-

Ological resources and concerns raised by

the CTSHPO(sic) and ACHP the applicant

volunteered to undertake a recovery pro-

gram. At the applicant's request we will

add a special condition to the permit to

recover artifacts in accordance with a

memorandum of agreement between the ap-

plicant, the Corps, the CTSHPD and the

ACHP. This plan basically calls for re-

covery of a representative sample of

material at each site with a resulting

analysis and report. The mall would in-

clude a public information display of

- 197a -

archaeological work in Connecticut in

general and specifically at the mall site.

h. Recreation:

1) According to the North

Haven Commission of Parks and Recreation,

the site has limited recreational value

in its use by target shooters and motor-

cyclists. The commission feels that they

have sufficient recreational areas to

serve the needs of the town and that the

mall site is not needed for outdoor rec-

reational purposes.

2) Nearby recreational areas,

including Wharton Brook State Park and

the Montowese and Blakeslee Fields, could

experience some reduction in air and

noise quality from mall-related traffi

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