Norwalk Harbor Keeper et al v. U.S. Dept of Transportation et al

Filing 61

ORDER denying 42 Motion for Summary Judgment; granting 43 Motion for Summary Judgment; granting 44 Motion for Summary Judgment. The Clerk shall enter judgment for the Defendants and close the case. Signed by Judge Stefan R Underhill on 7/8/2019. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

NORWALK HARBOR KEEPER, et al.,
Plaintiffs,

No. 3:18-cv-0091 (SRU)

v.
U.S. DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs, Norwalk Harbor Keeper and Fred Krupp (“Plaintiffs”), brought suit against the
U.S. Department of Transportation (“DOT”) and Elaine L. Chao in her official capacity as
Secretary of DOT; the Federal Transit Administration (“FTA”) and Matthew Welbes in his
official capacity as Executive Director of the FTA (together these defendants are referred to as
“Federal Defendants”), as well as the Connecticut Department of Transportation (“CTDOT”) and
James P. Redeker in his official capacity as Commissioner of the CTDOT (“State Defendants”)
(collectively, Federal Defendants and State Defendants will be referred to as “Defendants”).
Plaintiffs claim that Defendants’ environmental analysis pursuant to the National Environmental
Policy Act (“NEPA”) regarding the replacement of the Norwalk River Bridge in Norwalk,
Connecticut was inadequate.
Plaintiffs have filed a motion for summary judgment, arguing that “Defendants have not
complied with NEPA.” Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for
Summary Judgment (“Pls’ Memo”), Doc. No. 42-1, at 1. Federal Defendants have also moved
for summary judgment, arguing that Plaintiffs “failed to demonstrate FTA’s Finding of No
Significant Impact (‘FONSI’), which incorporates by reference the Environmental Assessment

(‘EA’), of the Walk Bridge Replacement Project was arbitrary, capricious, or not in accordance
with the law.” FTA Defendants’ Memorandum of Law in Support of Motion for Summary
Judgement (“Defs’ Memo”), Doc. No. 43-1, at 1-2.1
For the reasons set forth below, I hold that the Plaintiffs do not have standing to bring this
lawsuit. In the alternative, even if they do have standing to sue, summary judgment is granted in
favor of the Defendants on the merits.
I.

Standard of Review
A. Summary Judgment
Summary judgment is appropriate when the record demonstrates that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment).
When ruling on a summary judgment motion, the court must construe the facts of record
in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398
U.S. 144, 158–59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d
Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the
nonmoving party”). On cross-motions for summary judgment, “neither side is barred from

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State Defendants filed a brief adopting by reference the arguments set forth in Federal Defendants’ Motion for
Summary Judgment, Memorandum of Law in Support, and Local 56(a) Statement filed on October 16, 2018 (Doc.
No. 44) as well as Federal Defendants’ Brief in Opposition to Plaintiffs’ Motion for Summary Judgment (Doc. No.
51). Therefore, all Defendants’ claims are considered together.

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asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of
law, against it.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). When, as
here, both parties seek summary judgment, “a district court is not required to grant judgment as a
matter of law for one side or the other.” Id. “Rather, the court must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration.” Id. (internal citations and quotation marks
omitted).
“Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving
party submits evidence that is “merely colorable,” or is not “significantly probative,” summary
judgment may be granted. Anderson, 477 U.S. at 249–50.
The mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact. As to materiality,
the substantive law will identify which facts are material. Only disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247–48. To present a “genuine” issue of material fact, there must be contradictory
evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at
248.
If the nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an essential element of the
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nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23; accord
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s
burden satisfied if he can point to an absence of evidence to support an essential element of
nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary
judgment may enter. Celotex, 477 U.S. at 323.
B. NEPA
NEPA creates no private right of action. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882
(1990). Thus, challenges to compliance with NEPA are usually brought pursuant to the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. Id.
Although a court’s review under the APA should “be searching and careful,” it is not de
novo. Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989). Review of an agency’s
decision under NEPA is controlled by the “arbitrary and capricious” standard of the APA. Nat’l
Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997); see 5 U.S.C. § 706(2)(A). The arbitrary
and capricious standard prohibits a court from “substitut[ing] its judgment for that of the agency
as to the environmental consequences of its actions.” Kleppe v. Sierra Club, 427 U.S. 390, 410
n.21 (1976). In conducting its review, the district court is “relegated to affirming the agency’s
decision so long as a rational basis is presented for the decision reached.” Sierra Club v. U.S.
Army Corps of Eng'rs, 772 F.2d 1043, 1050 (2d Cir. 1985).
Under NEPA, plaintiffs are limited to challenging, and the court to reviewing, the
agency’s decision making process, not the agency’s decision. See Kleppe, 427 U.S. at 410 n.21
(“Neither the statute nor its legislative history contemplates that a court should substitute its
judgment for that of the agency as to the environmental consequences of its actions.”); Strycker's
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Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980) (court “cannot interject
itself into the area of [agency] discretion”). “The court’s role is to ensure that NEPA’s procedural
requirements have been satisfied….” Fund for Animals v. Kempthorne, 538 F.3d 124, 137 (2d
Cir. 2008) (citing Kleppe, 427 U.S. at 410 n.21) (holding that court’s role is to ensure agency
took a hard look at environmental consequences)).
When reviewing factual determinations by an agency under NEPA, a court “must
generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Nat’l Res. Def. Council, Inc.,
462 U.S. 87, 103 (1983); see also Nat’l Audubon Soc’y, 132 F.3d at 19 (role of reviewing court
is to ensure NEPA compliance without infringing upon the agency’s decisions in areas where it
has expertise); WildEarth Guardians v. Jewell, 738 F.3d 298, 312 (D.C. Cir. 2013) (because the
NEPA process “involves an almost endless series of judgment calls ... the line drawing decisions
... are vested in the agencies, not the courts”) (quoting Duncan’s Point Lot Owners Ass’n, Inc. v.
F.E.R.C., 522 F.3d 371, 376 (D.C. Cir. 2008)).
“A court is not to ask whether a regulatory decision is the best one possible or even
whether it is better than the alternatives.” F.E.R.C. v. Elec. Power Supply Ass’n, 136 S. Ct. 760,
782 (2016). Rather, a court evaluates “whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” Friends of
Ompompanoosuc v. F.E.R.C., 968 F.2d 1549, 1553 (2d Cir. 1992) (internal citation and
quotation omitted). “NEPA merely prohibits uninformed - rather than unwise - agency action.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
The District of Connecticut has stated that its “[j]udicial review is guided by the ‘rule of
reason,’ which assesses whether NEPA review ‘has been compiled in good faith and sets forth
sufficient information to enable the decision-maker to consider fully the environmental factors
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involved and to make a reasoned decision after balancing the risks of harm to the environment
against the benefits to be derived from the proposed action, as well as to make a reasoned choice
between alternatives.’” Nat’l Post Office Collaborate v. Donahoe, 2014 WL 6686691, at *7 (D.
Conn. Nov. 26, 2014) (quoting Suffolk Cnty v. Sec’y of Interior, 562 F.2d 1368, 1375 (2d Cir.
1977)).
II.

Background
The following facts are drawn primarily from Plaintiffs’ Local Rule 56(a)1 Statement of

Undisputed Material Facts (“Undisputed Facts”), Doc. No. 42-2, and Defendants’ Local Rule
56(a)2 Statement (“Disputed Facts”) and Local 56(a)3 Statement of Additional Material Facts
(“Additional Facts”), Doc. No. 50-1.2
The bridge at issue (the “Walk Bridge”) is a movable railroad bridge that was constructed
in 1896. It was designed and constructed to allow upriver access, which, at the time, was a hub of
industry and maritime commerce called the “Upriver Shoreline.” The Walk Bridge carries rail
traffic across the Norwalk River for Amtrak and the New Haven line of Metro-North Railroad,
the most heavily trafficked commuter line in the United States. The bridge is surrounded by
wetlands on both sides. There are two 235-foot towers, one on each side of the river, which
support high voltage power transmission lines used by the utility company Eversource, as well as
by Metro-North as communication lines.

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Defendants filed a separate Rule 56(a)(1) Statement of Undisputed Facts, Doc. No. 43-2, and Plaintiffs responded,
Doc. No. 48-1. Defendants’ Statement includes a background section regarding NEPA’s requirements, which is
summarized in the Standard of Review section of this opinion, as well as details explaining meetings and
discussions that took place throughout the NEPA review process, which are cited throughout this opinion rather than
compiled in an additional factual summary of the case.

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The Walk Bridge separates the Upriver Shoreline section of the Norwalk River from
Norwalk Harbor, and the Upriver Shoreline is navigable for approximately one mile. There is
little industry along the Upriver Shoreline. Industry has been replaced primarily by riverfront
housing. Marine traffic in Norwalk Harbor has generally declined since 2008. When the Walk
Bridge is closed, at mean high water there is approximately 16 feet of vertical clearance for
vessels on the river to pass underneath. At mean low water, there is approximately 23 feet of
vertical clearance.
On February 3, 2015, CTDOT published a Notice of Scoping, entitled “Replacement of
the Norwalk River Railroad Bridge”, explaining the basic goals of the bridge replacement
project, which is the subject of this lawsuit. CTDOT invited the public to comment on the project
and the scope of issues that should be addressed in the project’s environmental review. At the
time that the Notice of Scoping was released, the stated purpose of the project did not include
preserving and enhancing maritime navigation.
Approximately two months later, on March 5, 2015, at an inter-agency meeting about the
project, Connecticut’s Office of Policy Management (“CTOPM”) asked whether CTDOT had
considered replacing the Walk Bridge with a fixed bridge design rather than a movable bridge
design. CTDOT responded that the agency had decided to go forward with a movable bridge
design. On a website created for the Walk Bride Project, language stated that “[t]he new or
rehabilitated Walk Bridge will improve maritime navigation of the Norwalk River.” Undisputed
Facts at ¶ 16. On March 10, 2015, CTOPM issued a comment letter to CTDOT responding to
CTDOT’s Notice of Scoping, noting that the project purpose in the Notice of Scoping referred
only to constructing “a resilient bridge structure which will enhance the safety and reliability of
commuter and intercity passenger rail service” and did not include a proposed purpose of
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improving maritime navigation. CTOPM suggested that CTDOT consider a fixed bridge
alternative because maintaining maritime navigation did not appear to be an essential element of
the Walk Bridge Project. CTOPM also suggested that CTDOT consider whether the benefits of a
fixed bridge might outweigh the loss of navigability for boats that were too large to pass
underneath the bridge.
In May 2015, CTDOT completed a Conceptual Engineering Report, which considered
options for replacing the Walk Bridge, and which was a “precursor” to a more complete
navigational analysis that would be part of an application to the U.S. Coast Guard for a permit to
reconstruct the Walk Bridge. The Conceptual Engineering Report identified two primary
commercial interests that interact with the Walk Bridge and require an opening of the bridge to
reach their final destinations: barges and tugs serviced by Devine Brothers and tall-mast sail
boats maintained by United Marine.
Defendants issued an Environmental Assessment (“EA”) for the Walk Bridge
Replacement Project, as required by NEPA, on August 26, 2016. In the EA, the project’s purpose
included “maintaining or improving navigational capacity and dependability for marine traffic in
the Norwalk River.” Undisputed Facts at ¶ 27. The parties disagree whether the primary purpose
of the project is simply to restore or replace the Walk Bridge for rail transit or whether the
broader purpose is “to rectify the existing deficiencies of the existing bridge, including its age
and deterioration, decreasing reliability, safety standards, and difficulty of maintenance [and
incorporate] federal and state transportation goals for the New Haven Line/Northeast Corridor
(NHL/NEC).” Disputed Facts at ¶ 28. The parties agree that the purpose relating to maintaining
or improving navigational capacity is a secondary purpose of the project. A fixed bridge built at

8

approximately the current height of the existing Walk Bridge would meet all Project Purpose and
Need criteria except for maintaining upriver navigation.
Plaintiffs contend that the EA did not assess a number of potential factors for the Existing
Level Fixed Bridge option, including: (1) the potential resiliency benefits; (2) potential railroad
safety and reliability benefits; (3) balancing the needs of rail and waterborne transport; (4) the
potential impact of navigational access; (5) potential change to marine commerce in Norwalk
Harbor; (6) the actual present navigational needs to access the area of Norwalk River north of the
Walk Bridge; and (7) what is fully required to meet a United States Coast Guard (“USCG”)
navigational clearance determination before issuing an EA, Record of Decision (“ROD”), or
Finding of No Significant Impact (“FONSI”). Defendants counter that the EA assessed the
potential resiliency benefits, potential railroad safety and reliability benefits, balanced the needs
of rail and waterborne transport, assessed the navigational impact of each Fixed Bridge
Alternative, and considered actual and future marine commerce.
The Norwalk Harbor Keeper submitted public comments criticizing the EA’s study of
upriver navigational needs and arguing it failed to study a fixed bridge alternative, among other
alleged defects. The EA stated that removing the High Towers adjacent to the Walk Bridge,
relocating the high voltage transmission line for Eversource, and the relocation of the MetroNorth communication line, would all be necessary to construct the movable bridge alternative.
The EA acknowledged that the Eversource Transmission Line relocation would be a secondary
impact of the Walk Bridge Replacement Project.
In June 2017, CTDOT issued a ROD containing a final determination regarding the
environmental review of the Walk Bridge Replacement Project. The ROD selected a movable
bridge design for the project. The Fixed Bridge Alternative Issue Paper CTDOT attached to the
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ROD noted that CTDOT considered four fixed bridge alternatives at the conceptual level.
Benefits of a fixed bridge included that it would be safe, resilient, and less expensive to construct
than the preferred alternative. However, there were also deficiencies with the fixed bridge
option: it would prohibit all current navigation traffic that required an opening of the existing
Walk Bridge and would lengthen the construction period. Specifically, the construction period
for a movable bridge would take approximately 40 months to complete, but construction for a
fixed bridge alternative would take between 52 and 64 months. For a movable bridge, there
would be only two complete channel outages during the construction period, compared to the
construction of a fixed bridge alternative, during which “multiple complete channel closures
would be required.” Additional Facts at ¶¶ 2-3.
On July 6, 2017, CTOPM issued a letter concluding that the EA satisfied the
requirements of NEPA. CTOPM’s letter, which challenged the decision to elevate maritime
access above other economic and social considerations, still approved the project because the
costs and benefits of a movable bridge justified other local impacts. CTOPM also stated that
DOT would need to “make every effort to mitigate such impacts.” OPM Review Letter, App’x
C-3 to Final ROD, Doc. No. 30-1 at 852, RECORD0023384.
On July 17, 2017, FTA issued a FONSI on the environment for the project. The FONSI
determined that the EA satisfied NEPA’s requirements and no further NEPA review was
required unless the project’s specifications changed, or new information or environmental
concerns arose.

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III.

Discussion
In their motion for summary judgment, Plaintiffs argue: (1) that Norwalk Harbor Keeper

and Fred Krupp have standing to sue; (2) that the EA failed to study a reasonable range of
alternative bridge designs; (3) that Defendants failed to meaningfully respond to Norwalk Harbor
Keeper’s Comments on the EA; and (4) that Defendants unlawfully segmented the project.
In Defendants’ cross motion for summary judgment, Defendants argue: (1) the Walk
Bridge Project decision-making process was not arbitrary and capricious under NEPA because
the agency properly and adequately framed the Purpose and Need statement, properly and
adequately considered alternatives that satisfied the Walk Bridge Replacement Project’s Purpose
and Need, and properly and adequately provided opportunity for public comment on the project;
and (2) the project was not improperly segmented.
For the reasons that follow, summary judgment is granted in favor of Defendants.
1. Standing
Plaintiffs do not sue to stop the Walk Bridge replacement project. At oral argument,
Plaintiffs’ counsel disclaimed any intent to bring the project to a halt. Plaintiffs do not even
claim that an Environmental Impact Statement is required before the project can proceed. Their
complaint only seeks to enjoin the disbursement of federal funds “until an adequate EA is
completed.” Compl., Doc. No. 1, Prayer for Relief, at 25. Plaintiffs complain that the selection
of a movable bridge design will cause “needlessly protracted disruption to the recreational and
aesthetic value of the Norwalk River.” Id. at ¶ 15. The question is whether the Plaintiffs have
standing to raise their procedural challenge that the EA inadequately considered the possibility of
a fixed bridge design. I conclude that they do not.
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To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (internal citation omitted); see also Bldg. & Const. Trades Council of
Buffalo & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir. 2006). Ordinarily,
environmental plaintiffs need not allege injury to the environment to have standing; instead,
they “adequately allege injury in fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the
challenged activity.” Friends of the Earth, Inc., 528 U.S. at 183 (internal citation omitted).
Here the challenged activity is not the bridge reconstruction; if it were, Plaintiffs’
recreational and aesthetic interests might be sufficient to support standing.3 Rather, Plaintiffs
allege that the disruption to the recreational and aesthetic value of the Norwalk River caused by
the construction will be “needlessly protracted” if a movable design is adopted rather than a
fixed design. That assertion does not satisfy the “injury in fact” requirement of standing. Quite
simply, Plaintiffs will not suffer any concrete, particularized harm that could be avoided if
Plaintiffs’ preferred alternative, a fixed bridge, were selected instead of the movable bridge
option that the Defendants chose.
In order to challenge the administrative decision-making process under NEPA,

See Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (allegation that development “would destroy or otherwise
adversely affect the scenery, natural and historic objects and wildlife of the park and would impair the enjoyment of
the park for future generations” may amount to an “injury in fact” sufficient to lay the basis for standing under
section 10 of the APA).
3

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Plaintiffs must show that their enjoyment of the area will be lessened by the challenged
activity. Friends of the Earth, Inc., 528 U.S. at 183 (internal citation omitted). In this case, the
challenged activity is the choice to replace the current moveable Walk Bridge with another
moveable bridge rather than a low-level fixed bridge alternative. Plaintiffs fail to show that
their recreational and aesthetic enjoyment of the area would be lessened if a fixed bridge were
chosen instead, and therefore lack standing to pursue their claim.
Plaintiffs’ argument regarding the alleged recreational and aesthetic harm that they will
experience as a result of the movable bridge option selected by Defendants is nonsensical
because, had the fixed bridge option for which Plaintiffs advocate been selected instead,
construction time would render the river unusable for an even longer period, between 52 and
64 months, as opposed to the estimated 40 months for the movable bridge that was selected,
and dredging would still occur. Exhibit E to Final ROD, 6-7-17, Doc. No. 30-1, at
RECORD0023162–64.
The movable bridge choice offers a shorter period of disruption to Plaintiffs’ use and
enjoyment of the river, and therefore does not lessen their recreational and aesthetic value as
compared to the fixed bridge alternative. In addition, there will be fewer complete channel
outages during construction of the movable bridge option, during which Plaintiffs’ use of the
river will be completely blocked, than there would be if the fixed bridge alternative had been
selected. Id. Finally, the only sources of potentially toxic chemicals in the project is the
existing bridge structure, which likely contains lead-based paint and PCBs and sediment that
will need to be dredged regardless of which bridge alternative is built. EA/EIS, Doc. No. 284; at RECORD0021945–21946; id. at RECORD0021959; id. at RECORD0021993; id. at
RECORD0022080, id. at RECORD0022211; id. at RECORD0022198-22199.
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Accordingly, Plaintiffs will not suffer harm to their recreational and aesthetic interests4
as a result of Defendants’ choice to build a new movable Walk Bridge rather than a fixed
bridge. Therefore, I hold that Plaintiffs lack standing to sue in this case.
Even if they do have standing to sue, however, I hold that the Norwalk River Bridge
Project decision-making process was not arbitrary under NEPA and that the project was not
improperly segmented, as discussed below.
2. Defining the Purpose and Need Statement
Under NEPA, an EA must include “brief discussions of the need for the proposal.” 40
C.F.R. § 1508.9. Generally, agencies are given considerable deference in defining a project’s
Purpose and Need. See Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1069 (9th Cir.
1998). I must affirm Defendants’ decision to add “maintaining or improving navigational
capacity” to the definition of the Purpose and Need statement as long as they (1) presented a
rational basis for making that decision, Sierra Club v. Army Corps of Eng’rs, 772 F.2d at 1050;
and (2) did not “narrow the objective of [their] action artificially and thereby circumvent the
requirement that relevant alternatives be considered.” City of New York v. United States Dep’t of
Transp., 715 F.2d 732, 743 (2d Cir. 1975) (internal citation omitted).
The Administrative Record clearly demonstrates that FTA and CTDOT had a rational
basis for including maintaining or improving navigational capacity in the Purpose and Need
Statement.

4

In their complaint, Plaintiffs do not identify any aesthetic interests independent of their recreational use of the
Norwalk River. It is unlikely that the Supreme Court meant to grant standing to anyone who could complain about
the look of the replacement bridge (e.g., towers are too high, wrong color, lacks architectural style, etc.). At oral
argument Plaintiffs’ counsel sought to make such an argument. However, there will be no significant aesthetic
impact from replacing the current bridge with either a fixed or movable bridge. The complaint claims potential harm
to aesthetic interests that involve the construction period, when the status quo will be disrupted.

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a. Comments by agencies provided a rational basis
The Administrative Record shows that Defendants added maintaining or improving
navigation to the Purpose and Need statement in response to comments received during agency
and public scoping. Defs’ Opp. Memo, Doc. No. 50, at 9–10. Accordingly, they have
successfully articulated “a rational connection between the facts found and the choice made.”
Brodsky v. U.S. Nuclear Regulatory Com’n , 704 F.3d 113, 119 (2d Cir. 2013) (internal citations
omitted). For example, the Record shows that early communications with federal and state
agencies led Defendants to believe that those agencies would have refused to approve a bridge
design that did not comport with current navigational clearance. Defendants point out that
CTDOT initially notified the United States Army Corps of Engineers (“USACE”) and USCG
that the current number of maritime users who require the Walk Bridge to open was decreasing
before USCG and USACE indicated that they sought to maintain current navigational capacity.
Defs’ Opp. Memo, Doc. No. 50, at 9 (see Navigational Study, Attachment G to Conceptual
Engineering Report May 2015, Doc. No. 30-4, at RECORD0026013). After CTDOT provided
USCG with information about limited upriver users requiring that the Walk Bridge open for their
use, USCG repeatedly informed CTDOT that USCG would not approve a bridge that did not
maintain current vertical navigational clearance of 60 feet – the vertical clearance established by
the I-95 Bridge upstream of the Walk Bridge. Id. at RECORD0026014; id. at RECORD0024990.
In addition, USCG informed CTDOT that “in establishing horizontal and vertical clearances for
replacement alternatives, any span configuration should not reduce the clearances currently
provided by the swing span.” Id. at RECORD0026014.

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Because the permitting agencies indicated that they would require current navigational
capacity to be maintained in order to approve the project, it was rational for Defendants to
include that language in the Purpose and Need Statement.
b. Defendants responded to CTOPM recommendations
During the Notice and Scoping period, CTOPM expressed procedural concerns about
whether the added navigability purpose was necessary because it had not been part of the
initial Notice of Scoping. Exhibit E to Final ROD, 6-7-17, Doc. No. 30-1, at
RECORD0022829-30. CTOPM eventually, however, determined that the project complied
with NEPA requirements. Id. at RECORD0023384.
NEPA does not require initial scoping (see FTA Standard Operating Procedures
attached to FONSI, Doc. No. 30-3, at RECORD0024605) and allows for the evolution of
the purpose and need statement over time with public scoping. Id. at RECORD0024581-87.
Given that initial scoping was not required and Defendants elected to participate in that
process, they should not be held to an unyielding standard. Rather than “elevating” certain
considerations, Defendants adapted the purpose of the project based on feedback from
agencies and the public, meeting the purpose of NEPA. Accordingly, Defendants’ decision
to add navigability language to the Purpose and Need Statement was not unreasonable,
despite the fact that CTOPM initially expressed concern.
c. Relevant Federal Statutes support including navigability language
The Walk Bridge cannot be replaced without USCG approval. “It shall not be lawful to
construct or commence the construction of any bridge, causeway, dam, or dike over or in any …
navigable river, or other navigable water of the United States until the consent of Congress to the
16

building of such structures shall have been obtained…. However, such structures may be built
under authority of the legislature of a State across rivers and other waterways the navigable
portions of which lie wholly within the limits of a single State, provided the location and plans
thereof are submitted to and approved by the Secretary of the department in which the Coast
Guard is operating or by the Chief of Engineers and Secretary of the Army before construction is
commenced.” 33 U.S.C. § 401.
Because the Norwalk River is located wholly in the state of Connecticut, express
Congressional consent is not required for the construction of a bridge across it. However,
Congressional power to consent has been delegated to USCG under the General Bridge Act of
1946. See 33 U.S.C. §§ 525(a), (b); Sisselman v. Smith, 432 F.2d 750, 753 (3d Cir. 1970) (“The
General Bridge Authority Act of 1946 granted the consent of Congress for the construction of
bridges over navigable waters after approval by the Chief of Engineers and the Secretary of the
Army as well as by the relevant local authorities. The authority of the Chief of Engineers and the
Secretary of the Army has now been delegated to the Commandant of the Coast Guard and the
Secretary of Transportation.”). And, as discussed above, Defendants reasonably believed, based
on comments made during initial scoping, that the agencies that would need to sign off on the
project would not do so unless current navigability was maintained.
The Rivers and Harbors Act prohibits the construct of a bridge that would “unreasonably
obstruct” navigation. 33 U.S.C. § 494. As part of that review, USCG is responsible for
determining, after a study of actual navigational use of a waterway, whether or not a proposed
bridge would impose an unreasonable limit on navigation. 33 C.F.R. § 116.01. USCG guidance
provides that USCG’s analysis must achieve a “reasonable balance between the competing needs

17

of land and waterborne modes of transportation.” Navigation Study Attachment C to Conceptual
Engineering Report May 2015, Doc. No. 30-4, at RECORD0025918.
Even if USCG could approve a project that limits navigability, in this case, it was clear
that they did not plan to approve a project that would do so. The Second Circuit has held that
“there is no need to consider … alternatives which could only be implemented after significant
changes in governmental policy or legislation or which require similar alterations of existing
restrictions.” Nat. Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975) (internal
citations omitted).
In addition to noting USCG’s comments, CTDOT also considered USCG policy and
guidance in evaluating the scope of the Walk Bridge Replacement Project. The Coast Guard
permitting procedures provides that the USCG must consider a variety of factors when
determining navigational clearances. Navigation Study Attachment C, Doc. No. 30-4, at
RECORD0025913-6. The factors for consideration include the following: (1) existing
commercial users, (2) existing recreational users, (3) vessel trip frequency, (4) all bridges
upstream and downstream from the proposed bridge, (5) waterway layout and geometry, (6) type
and size of vessels utilizing the waterway, (7) type and size of vessels expected to utilize the
waterway during the proposed bridge lifespan, (8) review of annual cargo movements (cargo
types and quantities), and (9) mitigation proposed/complete for impacted waterway users and a
list of those impacts that cannot be mitigated. Id. In addition, USCG guidance provides that
USCG’s analysis must achieve a “reasonable balance between the competing needs of land and
waterborne modes of transportation.” Navigation Study Attachment C, Doc. No. 30-4, at
RECORD0025918.

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Under that guidance, the considerations above weigh against a low-level fixed bridge
being considered a “reasonable restriction” on navigation here because existing commercial and
recreational users require vertical clearances above the approximately 20-foot vertical clearance
of the low-level fixed bridge option. Appendix N to Conceptual Engineering Report May 2015,
Doc. No. 30-4, RECORD0025881. The existing minimum vertical clearance of the I-95 Bridge
upstream of the Walk Bridge is 60 feet, 40 feet higher than the low-level fixed bridge alternative.
Id. at RECORD0025878-25879. CTDOT reviewed and considered that guidance as part of its
determination that a low-level fixed bridge was an unreasonable alternative. Navigation Study
Attachment C, Doc. No. 30-4, at RECORD0025913; id. at RECORD0025920.
Accordingly, based on evidence that the required agencies would not approve a fixed
bridge option, I hold that Defendants properly narrowed the scope of the Purpose and Need
statement. Defendants present a “rational basis…for the decision reached.” Sierra Club v. U.S.
Army Corps of Eng’rs, 772 F.2d at 1050.
3. Studying Reasonable Alternatives
The Second Circuit has directed agencies to “consider such alternatives to the proposed
action as may partially or completely meet the proposal’s goal.” City of New York, 715 F.2d at
742–43; Nat. Res. Def. Council, Inc., 524 F.2d at 93. Although an EA is typically a shorter
document than an Environmental Impact Survey (“EIS”), an EA’s consideration of alternatives
must be “full and meaningful.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 234 F. App’x 440, 443
(9th Cir. 2007) (citation omitted). Furthermore, “a conclusory and uninformative” discussion of
an alternative is “fatally inadequate.” I- 291 Why? Ass’n v. Burns, 372 F. Supp. 223, 249 (D.
Conn. 1974), aff’d, 517 F.2d 1077 (2d Cir. 1975).
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The parties dispute whether Defendants meaningfully studied a fixed bridge as a
complete NEPA project alternative before dismissing it as an option. Plaintiffs contend that a
low-level fixed bridge option is a reasonable alternative because: (1) it would meet all but one of
the project purpose criteria and would meet several criteria “more fulsomely than a moveable
bridge”; (2) it would allow for some current marine traffic; (3) and other marine traffic “could be
mitigated.” Pl’s Memo, Doc. No. 42-1, at 34–35. Defendants argue that “even if those statements
are true, Plaintiffs have not provided evidence that FTA and CTDOT’s determination that a lowlevel fixed bridge is not a reasonable alternative was arbitrary or capricious.” Def’s Opp. Memo,
Doc. No. 50, at 17. Defendants argue that the FTA properly and adequately considered
alternatives that satisfied the Walk Bridge Project. Id. at 35. They contend that they considered
the Low-Level Fixed Bridge alternative, despite the fact that they added navigability language in
the Purpose and Need statement. Defs’ Memo, Doc. No. 43-1, at 40. They contend that the fixed
bridge options were discussed in preparing the EA, but ultimately not “advanced for further
consideration.” Id.
a. Studying the low-level fixed bridge at the conceptual level
FTA and CTDOT’s conceptual review of the low-level fixed bridge alternative met
NEPA’s requirement that it “consider” the low-level fixed bridge alternative because “courts
have held that NEPA does not require an agency to study ‘in detail’ projects that partially meet a
project’s goals.” Defs’ Opp. Memo, Doc. No. 50, at 25–26 (citing Citizens’ Comm. to Save our
Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1020, 1031 (10th Cir. 2002) (alternatives that do
not accomplish the purpose of an action are not reasonable and do not need to be studied in
detail)).
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CTDOT’s engineers considered the rehabilitation option and the high-level fixed bridge
alternative during initial conceptual engineering, noting that it would meet the clearance
requirements provided by statute, but determined that the high-level option would lead to
increased costs, take longer to build, have an additional impact on waterway users, and might
potentially lead to Right of Way concerns. Conceptional Engineering Report May 2015, Doc.
No. 30-4, at RECORD0024989. Accordingly, the high-level option was not selected.
FTA and CTDOT also considered fixed-bridge alternatives during initial public and
agency scoping. CTDOT’s engineering consultant studied the fixed bridge alternative, evaluating
the potential cost, length of construction time, and environmental impacts. Misc. Administrative
Record, Doc. No. 31-4, at RECORD0039805-39807; id. at RECORD0040167-40169; Misc.
Administrative Record, Doc. No. 31-5, at RECORD40581-40582.
Although Plaintiffs argue that Defendants should have conducted empirical studies of
current and future river use, Defendants are not required to do so. Defendants published a white
paper addressing the Low-Level Fixed Bridge alternative. Misc. Administrative Record, Doc.
No. 31-5, at RECORD0041555, containing a link to a PDF containing Defendants’ white paper.
Defendants also published an Issue Paper regarding the Fixed Bridge Alternative. Appendix E to
Conceptional Engineering Report May 2015, Doc. No. 30-1, at RECORD0023155. Defendants
considered numerous factors, not merely navigability concerns connected with the fixed bridge
alternatives, and ultimately decided that the fixed level bridge alternatives unreasonably
restricted navigation or were too costly or burdensome to construct. Even if it was possible that
FTA and CTDOT might have been able to convince USCG that a low-level fixed bridge option
would be a reasonable restriction on navigation, Defendants are correct in asserting that “NEPA
did not require [Defendants] to take on the challenge.” Defs’ Memo, Doc. No. 50, at 30–31.
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Accordingly, Defendants considered relevant factors and made an informed decision when they
rejected the low-level fixed bridge alternative, thereby meeting NEPA’s requirements.
b. Resiliency concerns
System resiliency refers to “the ability to return the bridge to use either partially or
completely, in a relatively short period of time in the aftermath of a compromising event. It also
refers to minimizing the vulnerability of critical elements of the bridge to facilitate its return to
use.” EA/EIE, Doc. No. 28-4, at RECORD0022184.
As discussed above, Defendants’ decision not to move forward with the fixed bridge
options were reasonable. Accordingly, resiliency considerations did not create a requirement that
Defendants further consider the low-level fixed bridge option, and Defendants
presented a “rational basis…for the decision reached.” Sierra Club, 772 F.2d at 1050.
4. Public Comments
NEPA requires that an EA include only “brief” discussions of the need for the project,
alternatives and environmental impacts. 40 C.F.R. § 1508.9(b); 40 C.F.R. § 1501.3(b)(2001).
Furthermore, NEPA does not require that agencies provide detailed information about rejected
alternatives. See Nat’l Post Office Collaborate, 2014 WL 6686691, at *8. The Second Circuit has
held that the public participation requirement is satisfied so long as an agency is made aware of
the public’s concerns before the agency reaches its final decision. See, e.g., Pogliani v. U.S.
Army Corps of Eng’rs, 306 F.3d 1235, 1238-39 (2d Cir. 2002). However, NEPA does not permit
Defendants to ignore significant questions raised in public comments or shunt them aside with
“mere conclusory statements.” Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agr., 681 F.2d
1172, 1179 (9th Cir. 1982).
22

Plaintiffs allege that FTA and CTDOT (1) did not adequately study maritime traffic; (2)
did not study future maritime traffic; (3) did not study the safety benefits of a fixed bridge; (4)
failed to study necessary related projects; and (5) failed to study means of mitigating the
navigational access impacts of a fixed bridge on the two businesses that would be affected. Pls’
Memo, Doc. No. 42-1, at 40–41.
Defendants provided more opportunities for public comment and participation than is
required by NEPA. As discussed above, Defendants voluntarily conducted initial scoping and
then responded accordingly by investigating whether USCG and other agencies would require
maintaining navigability. In addition, Defendants circulated a draft of the EA and held meetings
in which they solicited comments, as well as conducting a longer comment period than was
required. FTA Standard Operating Procedures attached to FONSI, Doc. No. 30-3, at
RECORD0024605; id. at RECORD0024578; id. at RECORD0024623-24624; Final ROD 6-717, Doc. No. 30-1, at RECORD0022539; Appendix 2 to EA/EIS, Doc. No. 28-4, at
RECORD0022321-22323; id. at RECORD0022326-22384; Final ROD 6-7-17, Doc. No. 30-1, at
RECORD0022540-22542; Misc. Administrative Record, Doc. No. 31-5, at RECORD004048240489; Appendix D to Final ROD, 6-7-17, Doc. No. 30-1, RECORD0022652-22653; Misc.
Administrative Record, Doc. No. 31-4, at RECORD0038118-38120; Misc. Administrative
Records, Doc. No. 31-4, at RECORD0038123; Exhibit E to Final Rod, 6-7-17, Doc. No. 30-1, at
RECORD0023101-23105; id. at RECORD23120-23122.
Plaintiffs had multiple opportunities to comment on the project proposal, and Defendants
were aware of Plaintiffs’ concerns and addressed those comments in a manner consistent with
NEPA. FTA Standard Operating Procedures attached to FONSI, Doc. No. 30-3, at
RECORD0024626. Although Defendants did not revise the EA, they were not required to do so
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under NEPA. Id. at RECORD0024629-24627. Therefore, I hold that Defendants properly
responded to Plaintiffs public comments under NEPA.
5. Unlawful Segmentation/Studying Related Actions
NEPA regulations require an agency to consider connected, cumulative, or similar
actions in the same environmental impact statement. See 40 C.F.R. § 1508.25(a). The
regulations further define each of those three terms. A “connected action” is an action that is
“closely related” to the main action, which includes (i) actions which are “[a]utomatically
trigger[ed]” by the main action, (ii) actions without which the main action “[c]annot or will
not proceed,” or (iii) actions which “are interdependent parts of” the main action and “depend
on [it] for their justification.” 40 C.F.R. § 1508.25(a)(1)(i)-(iii). As the Second Circuit has
explained, “[t]he proper test” for whether or not an action qualifies as “interdependent” under
40 C.F.R. § 1508.25(a)(1)(iii) “is whether the project has independent utility.” Coal. on W.
Valley Nuclear Wastes v. Chu, 592 F.3d 306, 312 (2d Cir. 2009). Next, a “cumulative action”
is an action “which when viewed with other proposed actions [has] cumulatively significant
impacts and should therefore be discussed in the same impact statement.” 40 C.F.R. §
1508.25(a)(2). Finally, a “similar action” is an action “which when viewed with other
reasonably foreseeable or proposed agency actions, [has] similarities that provide a basis for
evaluating their environmental consequences together, such as common timing or
geography.” 40 C.F.R. § 1508.25(a)(3).
“A project has been improperly segmented … if the segmented project has no
independent utility, no life of its own, or is simply illogical when viewed in isolation.” Stewart
Park & Reserve Coal, Inc. v. Slater, 352 F.3d 545, 559 (2d Cir. 2003). Improper segmentation
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occurs when an agency attempts to circumvent NEPA by dividing a federal action into smaller
components to avoid studying the overall impacts of the single action. Id. A project, however, is
properly segmented if it “(1) connects logical termini and is of sufficient length to address
environmental matters of a broad scope; (2) has independent utility or independent significance;
and (3) will not restrict consideration of alternatives for other reasonably foreseeable
transportation improvements.” Id. (internal citation omitted). A project has “independent utility”
if the project has an independent function, “regardless of whether the other is built.” See id. at
560.
In this case, the FTA correctly determined that the Danbury Dockyard and Control Point
(“CP”)-234 Universal Interlocking Projects were properly segmented because they have
independent utility, logical termini, and do not foreclose the opportunity to consider alternatives.
The other projects about which Plaintiffs complain were properly addressed in the EA.
a. Danbury Dockyard Project and CP-243 Project
The two rail infrastructure projects that Plaintiffs allege were improperly segmented, the
Danbury Dockyard Project and the CP-243 Universal Interlocking Project, have independent
utility and were therefore properly segmented.
The Dockyard Project has independent long-term benefits, such as additional electrified
tracks to prevent Danbury Line service disruptions that currently take place without proper track
configurations. EA/EIE, Doc. No. 28-4, at RECORD0022003; CP-243 Categorical Exclusion,
Doc. No. 31-1, at RECORD0031406. The CP-243 Project includes upgrades that will create the
following long-term benefits: overall flexibility in train movements in the event of service
disruptions and providing flexibility to route trains from any track west to any track east in both
25

directions. Exhibit E to Final ROD 6-7-17, Doc. No. 30-1, at RECORD0023170. Express trains
will also be able to pass local trains with limited time intervals between trains. Id. This will allow
for greater capacity to accommodate trains and increased ridership. Id.
The Dockyard project and the CP-243 project each received a separate environmental
review under NEPA. Appendix E to Final ROD 6-7-17, Doc. No. 30-1, at RECORD0023171;
CP243 Categorical Exclusion, Doc. No. 31-1, at RECORD0031382-31576. The projects are
needed to perform the extensive State of Good Repair and improvements projects that will
improve long-term improvements to the New Haven Line and will reduce train delays and
expedite construction projects that take tracks out of service. Appendix E to Final ROD 6-7-17,
Doc. No. 30-1, at RECORD0023169.
Although the projects have independent utility, the improvements could also promote
train operation efficiencies during the Walk Bridge Replacement construction because they could
alleviate train traffic issues resulting from the track outages occurring during Walk Bridge
construction. As the Supreme Court held in Stewart, however, merely because “two projects are
interrelated as part of an overall transportation plan does not mean that they do not individually
contribute to alleviation of the traffic problems….” Stewart, 352 F.3d at 560.
Each project could go forward without the other being built, although the Norwalk Bridge
Replacement Project would be more disruptive. EA/EIE, Doc. No. 28-4, at RECORD0021960;
Appendix E to Final ROD 6-7-17, Doc. No. 30-1, at RECORD23169-23170. Accordingly, those
two projects were properly segmented.

26

b. Eversource Transmission Lines and Metro-North Communication Lines
The removal of the Eversource Transmission lines was included in the Walk Bridge
Replacement EA, including where construction might affect public utilities. EA/EIE, Doc. No.
28-4, at RECORD0022174; id. at RECORD0022212. Accordingly, that piece of the project was
not segmented.
The relocation of the Eversource Transmission lines was properly segmented because
that part of the project has independent utility: regardless of whether the Walk Bridge Project
moves forward, those lines will need to move because the high towers are structurally unsound
and require replacement. EA/EIE, Doc. No. 28-4, at RECORD0021934; id. at
RECORD0021993; id. at RECORD0023141. Because the transmission lines sit on the towers,
they need to be removed and relocated. Id. at RECORD0023141; id. at RECORD0021959;
Appendix E to Final ROD 6-7-17, Doc. No. 30-1, at RECORD0023155-56. The relocation of
those lines has an independent function regardless of whether the Walk Bridge Replacement
Project is built; therefore, the relocation was not improperly segmented. See Stewart, 352 F.3d at
559.
c. All Other Projects
The impacts of the Tower Replacement Project were considered in the EA. EA/EIE, Doc.
No. 28-4, at RECORD0021945; id. at RECORD0022001-22004; id. at RECORD0022151; id. at
RECORD0022174. The impacts of the Fort Point Bridge Replacement were also considered in
the EA. Id. at RECORD0021945; id. at RECORD0022002-22004; id. at RECORD00220121; id.
at RECORD00220124; id. at RECORD00220132. Furthermore, the EA also properly considered
the impacts of replacement of the one-half mile tracks and ballast. Id. at RECORD0021983; id.
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at RECORD0022002-22004. Finally, the EA also properly considered the replacement of
overhead catenary, supports and signal equipment. Id. at RECORD0022002-22004. Accordingly,
those projects were not segmented, but instead were reviewed properly under NEPA.
Because no project components were improperly segmented, summary judgment is
granted on behalf of the Defendants on the issue whether Defendants properly studied related
actions.
IV.

Conclusion
For the reasons set forth above, the Defendants’ motions for summary judgment (doc. no.

43, 44) are granted and the Plaintiffs’ motion for summary judgment (doc. no. 42) is denied. The
Clerk shall enter judgment for the Defendants and close the case.
So ordered.
Dated at Bridgeport, Connecticut, this 8th day of July 2019.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

28