Northwest Bypass Group v. U.S. Army Corps of Eng., Civil No. 06-CV-00258-JAW.

Decision Date22 April 2008
Docket NumberCivil No. 06-CV-00258-JAW.
Citation552 F.Supp.2d 97
PartiesNORTHWEST BYPASS GROUP, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
CourtU.S. District Court — District of New Hampshire

Gordon R. Blakeney, Jr., Concord, NH, for Plaintiffs.

Daniel R. Dertke, U.S. Dept. of Justice-Eviron. Defense, Environ. Defense Section, Samantha Klein, U.S. Dept. of Justice-Environ. & Natural Res., Environ. & Natural Resources Div., Washington, DC, John P. Almeida, U.S. Army Corps of Engineers, New England Dist., Concord, MA, E. Tupper Kinder, Nelson Kinder Mosseau & Saturley PC, Manchester, NH, for Defendants.

Bruce W. Felmly, McLane Graf Raulerson & Middleton, Manchester, NH, Claudia C. Damon, Gregory H. Smith, McLane Graf Raulerson & Middleton, Concerd, NH, for Intervenor Defendants.

Mark E. Howard, Kacavas Ramsdell & Howard PLLC, Manchester, NH, for Objector.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., District Judge, sitting by designation.

                  I.  INTRODUCTION........................................................................101
                 II.  STATEMENT OF PACTS..................................................................102
                III.  PROCEDURAL HISTORY..................................................................104
                      A.  Background......................................................................104
                      B.  Motions for Summary Judgment....................................................105
                 IV. STANDARD OF REVIEW...................................................................105
                  V.  DISCUSSION..........................................................................107
                      A.  Clean Water Act Claims..........................................................107
                          1.  Practicable Alternatives....................................................108
                          2.  Public Interest Review .....................................................112
                
                              a.  Traffic Impacts.........................................................113
                                   i.  Impact of Dumbarton and Silk Roads.................................113
                                  ii.  General Impacts of Phase II........................................114
                              b.  Balancing Recreational and Educational Resource Impacts.................116
                                   i.  Recreational Impacts...............................................116
                                  ii.  Educational Impacts................................................117
                          3.  Deference to State and Local Zoning and Land Use Decisions..................118
                          4.  Wetland Mitigation..........................................................120
                          5.  Effluent Limitations — 33 U.S.C. § 1341(d) Compliance..................123
                      B.  Scope of the Environmental Assessment & Cumulative Impacts .....................124
                          1.  Segmentation: Connected and Cumulative Actions..............................125
                          2.  Cumulative Impacts..........................................................126
                          3.  Secondary Impacts...........................................................128
                      C.  Historic Preservation ..........................................................128
                          1.  The Tuttle House............................................................129
                          2.  Pleasant View Home .........................................................130
                          3.  Consideration of Alternatives...............................................131
                          4.  Documentation and Public Participation Requirements.........................132
                      D.  NEPA............................................................................133
                          1.  FONSI Review................................................................133
                          2.  Whether the Effects are "Highly Controversial" .............................135
                 VI.  CONCLUSION..........................................................................136
                
I. INTRODUCTION

Northwest Bypass Group,1 Morton and Carolyn Tuttle,2and Leslie Ludtke3 allege that the United States Army Corps of Engineers (Corps) violated the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA), when it issued a permit pursuant to Section 404 of the CWA, allowing the City of Concord to fill three and one half acres of wetlands to build a 4,300-foot connector road.4 In a comprehensive nineteen-count complaint spanning 140 pages, the Plaintiffs allege that the Corps committed numerous statutory violations. See generally Compl. (Docket # 1). This case has been exhaustively litigated and now comes on dueling motions for summary disposition. The Court grants the motions for summary judgment filed by the Federal Defendants,5 the city of Concord, and the Intervenors;6 the Court denies the motion for summary judgment filed by the Plaintiffs.

II. STATEMENT OF FACTS

Within the capitol city of Concord, New Hampshire, there is a roughly V-shaped parcel of open land that runs from the center of the city to the playing fields of St. Paul's School.7 The V lies on its side, pointing east. The northern leg of the V is Pleasant Street, the southern leg is Clinton Street, and it is capped on the west by the Silk Farm Road and Dunbarton Road, which wend through St. Paul's campus. Concord has grown around the V. Concord Hospital, a major regional medical center, is located on Langley Drive, which intersects with Pleasant Street; downtown Concord and Concord High School lie to the east of the point of the V; and, I-89 intersects with Clinton Street, the southerly leg of the V.

Surprisingly, the land inside the V has remained pristine. The V contains the state-owned White Farm complex, a farm that has been listed on the National Register of Historic Places since May 15, 1981, for its significance as representing the practice and evolution of progressive agriculture. The V includes the Pleasant View Home, also listed on the National Historic Register and known for its beautiful vistas; the Tuttle House, a property eligible for listing on the National Historic Register; and a monastery for the Carmelite Sisters, a cloistered religious order that prizes peace and quiet. This open, undeveloped area not only has an extensive system of cross-country skiing and hiking trails often enjoyed by Concord residents, but also it has significant wetlands.

In the late 1940s, Concord city planners developed a vision for a Northwest Bypass, a circumferential roadway around the City. As Concord grew, only one portion of the Northwest Bypass was constructed and the remaining plans to ring the city remained visionary. In 1956, Concord Hospital, now one of the busiest hospitals in New Hampshire, moved to Pleasant Street and as patient volume grew, so did traffic volume. After 1-93 and 1-89 were built and as the surrounding area developed, the streets that formed the V became increasingly congested funnels into and out of Concord. The worst of the problem centered around the notorious five prong intersection of Pleasant, Warren, and Fruit Streets, a problem exacerbated by its location between Concord High School and its athletic fields and the constant ebb and flow of students. City planners began to conceive of ways to loosen the snarl; they harkened back to the old concept of a Northwest Bypass and began to focus on placing a road transecting the V. The entire project was divided into three phases: Phase I would reconstruct a portion of Pleasant Street with turning lanes and a traffic signal and build a new access road to Concord Hospital, called Langley Parkway South; Phase II would intersect the V connecting Pleasant and Clinton Streets through the V; and, Phase III would extend Langley Parkway South about one mile north to Penacook Street in the north central part of Concord.

In the early 1990s, the city filed for governmental approvals of the entire Northwest Bypass project and on April 30, 1993, it received the necessary approvals from the New Hampshire Department of Environmental Services (NHDES) for the whole project. The Corps also issued a permit, but restricted its approval to Phase I.8 The changes on Pleasant Street and the relatively short roadway to the Hospital—only 1,500 feet long—were not controversial. As originally designed, Langley Parkway South was limited to a single curb-cut, and did not impinge on the unspoiled land in the center of the V.9 Once Phase I was completed in 1995, the city turned back to Phase II, the road transecting the V.10

From a planning perspective, Phase II made good sense. The residential streets were never designed to carry such heavy traffic loads, patients and emergency vehicles were caught in interminable, unsafe delays, and traffic had shifted over to Silk Farm Road, which leads to Dunbarton Road, and through the campus of St. Paul's School, a private secondary residential school of about 525 students. Silk Farm Road and Dunbarton Road even now remain bucolic, winding country roads, but they endure approximately 1, 600 motor vehicles daily, some racing through the campus and placing the students and others at risk. St. Paul's, anxious to restrict access, and Concord Hospital, anxious to facilitate access, joined forces with the City and the three agreed to share the costs of the project. In addition, the City agreed to declare Silk Farm Road and Dunbarton Road private, thereby limiting access to those who have business at St. Paul's.

In November 2000, the City announced its intention to proceed with Phase II by filing an application with the NHDES for a wetland fill permit and water quality certificate. The City also sought the requisite CWA section 404 permit from the Corps to fill wetlands in the path of the proposed Phase II. AR 1:137. On December 12, 2000, the Corps issued a public notice, soliciting comment on whether to approve the...

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