Updated, 1:38 p.m.: Comment from attorney. Update, 7:17 a.m.: Copy edits
NORWALK, Conn. – Both sides in the Walk Bridge court dispute said Tuesday that a federal judge should summarily rule in their favor.
The lawsuit was filed by Harbor Keeper, a non-profit citizens group, against the Connecticut Department of Transportation and the Federal Transportation Authority, and seeks to halt the project on the basis that the State has not adequately established the need for a bridge that opens instead of a fixed bridge, which could be much cheaper. In dueling legal briefs, each side has filed a motion for summary judgment – a request for the court to rule that the other party has no case, according to lawyers.com.
Harbor Keeper has produced a December 2016 letter from the State’s Office of Policy Management accusing ConnDOT of changing the “purpose of need” for the massive project so that it would include keeping the Norwalk River navigable, which is the key justification for the controversial choice of a lift bridge to replace the aged swing railroad bridge over the Norwalk River.
“In sifting through thousands of pages of official documents on the project, Norwalk Harbor Keeper discovered that Connecticut DOT ignored the advice and guidance of the state’s Office of Policy and Management,” a Tuesday press release from Harbor Keeper said. “Norwalk Harbor Keeper is using these documents as part of its lawsuit, first filed in United States District Court for the District of Connecticut on January 17th, 2018, to throw out the decision to build a new lift bridge over the Norwalk River, rather than a less costly track level fixed bridge.”
The defendants have committed a “substantial blunder: imposing without adequate review, a less resilient movable bridge on one of the nation’s most heavily traveled public rail lines — all to preserve upriver access for a few privately-owned sailboats,” Tuesday’s filing states.
ConnDOT believes Harbor Keeper’s lawsuit should be dismissed because the group has failed to show that ConnDOT’s decision to choose a lift bridge was “arbitrary, capricious, or not in accordance with the law,” attorneys representing ConnDOT Commissioner James Redeker wrote in ConnDOT’s motion for summary judgement.
The Federal Transit Authority did more than was necessary in considering options, and “exceeded its obligation to take a ‘hard look’ at environmental consequences,” U.S. Attorney John H. Durham wrote. He noted that the Environmental Assessment (EA) was incorporated into the Finding of No Significant Impact (FONSI) after much public input, in satisfaction of the National Environmental Policy Act (NEPA).
OPM concerns in November 2016 inspired further investigation by ConnDOT, with the United States Coast Guard informing ConnDOT that “only Congress has the authority to declassify a waterway as non-navigable,” Durham wrote.
Harbor Keeper in its press release calls upon gubernatorial candidates Ned Lamont and Bob Stefanowski to pledge a full review of the controversial project.
Harbor Keeper calls the $1 billion Walk Bridge project “costly, disruptive, non-resilient, and wasteful” and asks in its court complaint that ConnDOT “consider reasonable alternatives.”
The judge could rule on the requests for summary judgment “any time from January 2019 to midsummer,” Attorney Devin McDougall of Sive, Paget & Riesel said in a Wednesday email. “There can be a lot of variation in how long a judge takes, based on the case and the judge’s overall workload.”
“This latest brief reveals yet another example of DOT’s arrogance in ignoring the community, the law, and, it turns out, the highest branches of state government by bulling ahead with an ill-advised and unwanted plan for a lift bridge across the Norwalk River,” Fred Krupp, a member of Norwalk Harbor Keeper and an individual plaintiff in the lawsuit, is quoted as saying in the press release.
“State DOT failed to ever study boat traffic north of Walk Bridge, instead erroneously relying on marine traffic statistics for the whole harbor. It has ignored the numerous comments against the lift bridge plan from the Norwalk community. It kept secret the discovery of historic Native American ruins at the construction site. And now, it turns out, it has completely ignored the advice of the Connecticut Office of Policy and Management, the office charged with minimizing wasteful spending by the state.”
Former Norwalk Mayor Bill Collins is also quoted in the release. “DOT’s arrogance in ignoring everyone from the citizens of Norwalk to the federal government, and now the Governor’s own budget and policy staff, is stunning,” Collins is quoted as saying. “This is an example of government out of control, not acting in the best interests of the people let alone obeying the law. It is time for the candidates for Governor to pledge a thorough review of the projects and alternatives and tell us how they intend to rein in wasteful spending.”
OPM sent ConnDOT a letter in March 2015 requesting that a fixed bridge be considered for the replacement project, the press release said.
“The OPM Comment Letter noted that studying a fixed bridge design as part of the environmental review could provide a better understanding of the costs of mitigating the effects of a fixed bridge for upriver businesses and provide an ability to compare those costs to the costs of constructing a moveable bridge,” the release said.
Jonathan Cohen, media consultant for Harbor Keeper, provided NancyOnNorwalk with the December 2016 OPM letter.
ConnDOT considered fixed bridge replacement options but dismissed them because they would not allow for marine traffic, when instead ConnDOT could have considered mitigating the impacts of not allowing marine traffic, given that navigability of the river was not originally a concern, OPM states in the letter.
“Please explain why CTDOT decided to modify the project purpose and need after the public scoping period to include the clause about maintaining and improving navigational capacity and dependability for marine traffic in the Norwalk River, instead of proceeding as OPM suggested in its scoping comments,” the letter states. “Doing so not only raises procedural concerns; it also seems to inappropriately elevate marine navigation to a status higher than other things that could be impacted by the project. A moveable bridge, furthermore, would likely reduce future rail service reliability, which is contrary to a basic goal of this project.”
Repairing the bridge or making it a fixed bridge would cost considerably less, “even after compensating those affected by the loss of maritime navigation capacity,” OPM states. “…Although the EIE presents what appears to be a thorough review of movable bridge design options, OPM is of the opinion that it does not sufficiently consider and evaluate other project alternatives that many people appear to consider prudent and feasible.”
FTA’s motion for summary judgment says that OPM concerns were considered and addressed, and OPM in July 2017 determined that the Walk Bridge EA/EIE satisfied legal requirements.
“The fact that CTDOT continued to explore the navigation issue and the low-level fixed bridge option after the publication of the EA/EIE and before issuing the FONSI demonstrates that CTDOT and FTA took a hard look at the reasonableness and effect of including navigability in the Purpose and Need Statement,” Durham wrote.
The record shows “substantial evidence” that the Purpose and Need Statement was developed “in good faith based on reasoned analysis of public and agency comments during initial scoping,” he wrote. “The fact that CTDOT added navigability to the Purpose and Need Statement after extensive public comment, research, and consideration, demonstrates that CTDOT took a hard look at the issue and had a good-faith rational basis for its decision to include navigability in the Purpose and Need Statement…. Contrary to Plaintiffs’ claim, the inclusion of navigability in the Purpose and Need Statement did not prevent CTDOT and FTA from considering a low-level fixed bridge alternative.”