# Appendix — City of New Haven v. Marsh

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 848

## Text

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

-102a

.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

- la-

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

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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.

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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]

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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.

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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

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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.

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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.

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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

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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.

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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

- 3la -

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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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the two water bodies. Both functions can
be adequately served without compromising
the retention function. The habitat
value gained will be worthwhile.

dad. Conne

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1979%3A2. Public record. Not legal advice.