Norwalk Harbor Management Commision + Norwalk Shellfish Commission petition for Public Hearing on use of Manresa Island.
On January 5th, in a status conference set to establish the need for a public hearing on the use of Manresa Island, The Norwalk Harbor Management Commission and The Norwalk Shellfish Commission submitted the following letter to the Connecticut Department of Environmental Protection (the agency that will ultimately deny or approve the site for use in the construction of the Walk Bridge. The letter can be downloaded by clicking here.
January 5, 2022
TO: CT Department of Energy and Environmental Protection (DEEP)
Office of Adjudications
FROM: John T. Pinto, Ph.D.
Norwalk Harbor Management Commission
SUBJECT: Status Conference Introductory Comments
CT DEEP Public Hearing
License Application No. 201909990-SDF TW WQC
By Connecticut Department of Transportation
For Replacement of the Walk Railroad Bridge, Norwalk, CT
The purpose of this memorandum, submitted on behalf of the Norwalk Harbor Management Commission (NMHC) and Norwalk Shellfish Commission (NSC), is to provide background information concerning the authority, interests, and concerns of both commissions with respect to the above-referenced coastal License Application submitted to DEEP by the Connecticut Department of Transportation (ConnDOT). The requested DEEP License would provide authorization for construction of ConnDOT’s proposed Walk Bridge Replacement Project (Project), generally recognized as the largest and most complex infrastructure project to occur in Norwalk since I-95 was built in the 1950s. ConnDOT’s Project Team has informed us throughout the extensive planning process that the Project will require approximately five to six years to complete and that the Project’s impacts, including impacts on Norwalk Harbor, will be substantial and unavoidable for the duration of the work.
It is the opinion of the NHMC and NSC that the public interests with respect to this most significant and impactful Project are properly served by allowing for public review and comment to the maximum extent possible consistent with local, state, and federal laws and policies. It is for that reason that the NHMC and NSC agreed to request that DEEP convene a Public Hearing on this matter and submitted a petition to ensure that such a hearing will be held.
The NHMC’s formal involvement with the Project began almost seven years to the day prior to DEEP’s scheduled January 5, 2021 Public Hearing Status Conference. On January 6, 2015, representatives of the NHMC met with the ConnDOT Project Team at ConnDOT headquarters. We met to discuss the NHMC’s significant interests concerning the Project and to inform ConnDOT of the NHMC’s role in the coastal regulatory process. While recognizing the vital importance of the Walk Bridge to transportation on the Northeast Rail Corridor, we made it clear that our responsibility in the regulatory process is to the City of Norwalk and those who use and enjoy Norwalk Harbor, now and in the future. It is not our job to facilitate the Project or be an advocate for it. We are responsible for conducting a fair and thoughtful review of the proposed Project for the purpose of upholding the public interests concerning safe and beneficial use of Norwalk Harbor and protection of the harbor’s vital coastal resources, including but not limited to, arguably the most valuable shellfish resources in the state.
The NHMC’s significant role in the coastal regulatory process is pursuant to authority set forth in the Connecticut General Statutes, Norwalk Code, and the duly approved and -adopted City of Norwalk Harbor Management Plan (Harbor Management Plan). Accordingly, the NHMC must review proposed projects affecting Norwalk Harbor, including but not limited to projects requiring DEEP approval, and respond with findings and recommendations to the appropriate regulatory agencies. When doing so we evaluate a proposal’s consistency with the provisions of the Harbor Management Plan.
The Harbor Management Plan, of course, does not specify how the Project should be undertaken. The Plan does, however, establish policies and other guidelines applicable to the NHMC’s review of ConnDOT’s Project plans. Included, for example, are Plan provisions for: 1) protecting coastal resources and environmental quality, including water quality; 2) maintaining public safety, including navigation safety; 3) providing public access to the harbor; and 4) encouraging and supporting water-dependent uses. We will describe these and other provisions and their applicability to the Project in detail during the Public Hearing process.
The NSC’s role in the coastal regulatory process is also significant, as the NSC, pursuant to the General Statutes and Norwalk Code, has charge of shellfisheries and shellfish grounds in Norwalk Harbor, including natural beds designated by the Superior Court for public use. The NSC’s programs, supported by the NHMC and Harbor Management Plan, focus on protection and enhancement of shellfish resources and shellfishing opportunities. Norwalk Harbor shellfish resources consist of shellfish populations as well as the habitat required for those populations to survive and flourish. Water quality is the principal determinant of the quality of Norwalk’s shellfish resources. The NSC and NHMC work cooperatively on a number of initiatives to protect and improve water quality and the harbor’s exceptional shellfish resources for the benefit of future generations.
While ConnDOT is exempt from municipal planning and zoning requirements, coastal permits from DEEP and the U.S. Army Corps of Engineers as well as a bridge permit from the U.S. Coast Guard are necessary to undertake the Project. All applicants for DEEP permits are required to submit their project plans to the NHMC and NSC for pre-application review. ConnDOT is no exception. Most significantly, pursuant to the General Statutes and established harbor management practice, a recommendation of the NHMC that is consistent with and adequately supported by the Harbor Management Plan with respect to a proposed project is binding on any official of the State of Connecticut when making regulatory decisions or undertaking or sponsoring development affecting the Norwalk Harbor Management Area1, unless such official shows cause why a different action should be taken.
1. The “Norwalk Harbor Management Area” is the formal term used to define the jurisdiction of the NHMC and Harbor Management Plan.
Since our first meeting with ConnDOT’s Project Team seven years ago, the NHMC and NSC have devoted untold hours to the review ConnDOT’s Project plans. We have prepared for and participated in every public meeting held to discuss the Project as well as many meetings with ConnDOT’s Project Team, representatives of DEEP and other agencies, and stakeholders; we have conducted numerous aerial, in-water, and on-land reconnaissance surveys of the Project site and affected areas, including reconnaissance with the State of Connecticut Harbor Master for Norwalk (Harbor Master) and the Marine Police Unit of the Norwalk Police Department; and we have provided thoughtful and detailed comments and recommendations throughout the project planning process, including the Environmental Assessment/Environmental Impact Evaluation phase of the process. For the Public Hearing record, we will provide a compilation of our most significant findings and recommendations to date.
Also for the Public Hearing record, we wish to note that ConnDOT submitted its original (2019) License Application and updated (2020) License Application to DEEP without the DEEP-required Harbor Management Commission and Shellfish Commission pre-submission consultation forms. We expressed our concern about this to DEEP representatives at the time the 2019 application was submitted and were informed that the application was accepted by DEEP without the pre-submission consultation forms because DEEP recognized that ConnDOT had participated in a number of meetings with the NHMC and NSC prior to submittal of the application. Those representatives also assured us that comments and recommendations from the NHMC and NSC would be properly considered throughout the DEEP regulatory process.
In addition, and for the Public Hearing record, we wish to express some concerns regarding publication of DEEP’s Notice of Tentative Determination for approval of ConnDOT’s License Application. The Notice was published on November 15, 2021 and therefore most of the 40-day public comment period fell within the Thanksgiving to New Year’s holiday period, a time when many people are focused on other matters and when the meeting schedules of municipal agencies such as the NHMC and NSC are often modified to accommodate the holidays.
Also, the published Notice first states that written comments are due by December 29, 2021. However, in the main body of the Notice it is stated that comments and a petition for a hearing shall be submitted within forty (40) days from the November 15 Notice publication date, meaning that comments and petitions were due by December 25, 2021. We trust that the holiday timing of the Notice and the apparent discrepancy concerning the deadline for comments have not diminished opportunities for initial public comment.
We also wish to comment at this time on the scheduling of the January 5 Status Conference. The Status Conference was scheduled by DEEP prior to expiration of the public comment period and therefore prior to DEEP knowing whether any requests or petitions to intervene in the Public Hearing process would be submitted. If such a request or petition had been submitted, it would seem appropriate to schedule the Status Conference with consideration of the availability of all parties.
While we recognize the importance of advancing a Public Hearing process in a timely manner, the general public should have confidence that the process is not being purposefully expedited to accommodate an applicant’s (in this instance, ConnDOT’s) interests and schedule.
Outline of Harbor Management Concerns
Noted above, throughout the Project planning process the NHMC and NSC have provided to ConnDOT and DEEP on numerous occasions detailed comments and recommendations intended to reduce or avoid potential adverse Project impacts on Norwalk Harbor.
Following review of the Authorized Activities and the Terms and Conditions included in the draft DEEP License for the Project, the NHMC and NSC believe that a number of harbor management concerns, including concerns previously identified and discussed, require additional attention prior to issuance of the License. We believe that the draft Terms and Conditions require considerable strengthening to protect the public’s interests. During the Public Hearing process, the NHMC and NSC intend to present, discuss, and provide recommendations with respect to the following concerns, including specific recommendations to strengthen the draft Terms and Conditions. In addition, the NHMC and NSC reserve their right to identify other concerns during the Public Hearing process and to provide comments and recommendations with respect to those other concerns.
1. Water Quality: The Harbor Management Plan contains a number of provisions for protecting and improving water quality. To advance the Plan’s water quality goals and policies, the NHMC and NSC work collaboratively on a number of initiatives, including scientific studies, well known to DEEP and ConnDOT, and support and assist the Mayor’s advisory Water Quality Committee. Throughout the planning process, the NHMC and NSC have emphasized that protecting water quality during the Project is a harbor management, including shellfish management, priority. In this regard, the NHMC and NSC have been analyzing ConnDOT’s baseline water quality data and developing recommendations for water quality monitoring protocols, appropriate thresholds of water quality values to be maintained throughout the Project, and Best Management Practices (BMPs) to be employed during the Project, not unlike the protocols, thresholds, and BMPs required by DEEP in other major projects affecting coastal waterways. The NHMC and NSC are concerned that the draft License Terms and Conditions include no requirements for monitoring water quality conditions during Project construction and no thresholds of water quality values to be maintained, including acceptable turbidity values.
2. Vessel Relocation: Throughout the Project planning process, the NHMC, Harbor Master, and Marine Division of the Norwalk Police Department have given considerable attention to ConnDOT’s plans affecting operation of the Norwalk Seaport Association ferry and Maritime Aquarium research vessel. We have made clear our finding that ConnDOT’s proposed vessel relocation plan, insofar as it would provide for operation of these two passenger-carrying vessels in the area between the Walk and Stroffolino bridges during the Project, presents an unacceptable risk to public safety. Accordingly, the Harbor Master previously informed DEEP and ConnDOT that he cannot support and will not approve of continued passenger-carrying operations of the two vessels in the area between the bridges during the Project. His decision was made pursuant to his statutory responsibility to maintain safe and efficient operation of the harbor and his authority under Sec. 15-8 of the General Statutes to station all vessels and be the sole judge [emphasis added] as to whether a vessel is stationed so as not to adversely affect commerce or navigation or public access.
His decision and the NHMC’s findings concerning ConnDOT’s vessel relocation plans are based on considerations of public safety and not on operators’ economic and logistical considerations.
3. Water Street Bulkhead: The NHMC and NSC remain concerned about Project plans to construct a new bulkhead at properties identified as 68 and 90 Water Street within ConnDOT’s proposed marine staging yard. Previously, the NHMC was informed by a ConnDOT representative that the proposed bulkhead is not needed for Project construction and is planned to increase the value of the affected properties for future development. The NSC was informed by another ConnDOT representative that plans for the bulkhead were included in the revised License application in case the bulkhead should be needed for Pro-ject construction. As described in the initial License application, the bulkhead was planned for installation at the conclusion of the Project (Stage 22), thereby indicating that the bulkhead is not needed for Project construction. Also of interest when considering this matter is that the existing bulkhead at 68 Water Street is the subject of a long-standing violation of environmental law; the 68 Water Street property owner also has submitted a DEEP License application for bulkhead construction at this property; and a proposal for a bulkhead along the 90 Water Street shoreline was previously deemed not approvable by the Department of Environmental Protection (prior to DEEP) due to the presence of tidal wetland vegetation.
4. Water-Dependent Uses: The NHMC and NSC remain concerned about the Project’s impact on: 1) the operation of recreational boating and commercial port facilities during Project construction; and 2) opportunities for future water-dependent development on properties acquired or otherwise utilized by ConnDOT for construction purposes and available for redevelopment following completion of the Project. Included are properties in the Liberty Square and Water Street Marine Commercial District that previously supported water-dependent uses and remain suitable for such uses. The Connecticut Coastal Management Act and the Harbor Management Plan give highest priority and preference to water-dependent uses in shorefront areas. The NHMC and NSC are concerned that DEEP’s draft License Terms and Conditions intended to ensure future water-dependent redevelopment of properties no longer required by ConnDOT are not sufficient for their intended purpose. We are concerned that the draft Terms and Conditions would allow these properties to be redeveloped for principal site uses that are not water-dependent (multi-family residential
development, for example) but which may be considered water-dependent through the provision of opportunities for pedestrian public access to the harbor. In addition, during the Project planning process, ConnDOT argued that the new movable bridge, as planned, would facilitate additional marine commercial use and development in the Upper Norwalk Harbor, up-river from the bridge. In 2022, however, it is our understanding that economic conditions are such that there is no reasonable expectation of additional waterborne commerce in the upper harbor and, in fact, the city’s land-use vision for the Upper Harbor waterfront includes residential development with public access amenities.
5. Coordination with the Harbor Master and Emergency Services: Noted above with respect to the Project’s vessel relocation plans, maintaining public safety, including navigation safety, is a harbor management priority emphasized throughout the Project planning process by the NHMC, NSC, and Harbor Master. Appointed by the Governor, the Harbor Master is the state official responsible for safe and efficient operation of the harbor and acts in coordination with the Norwalk Police and Fire departments to fulfill this responsibility. ConnDOT recognizes that the Project area, and particularly the area between the Walk and Stroffolino bridges, often will be highly congested during the Project. Construction barges, work support vessels, as well as other commercial and recreational vessels, including rowing craft, may be expected to transit the area utilizing the federal navigation channel. The NHMC, NSC, and Harbor Master are concerned that the draft License Terms and Conditions include no requirements addressing the need to ensure effective communication between the ConnDOT Project Team, Harbor Master, and Norwalk Police and Fire
Departments for the duration of the Project or for development of an effective vessel control system and emergency management procedures in coordination with the U.S. Coast Guard.
6. Barge Mooring: Among the authorized activities in the draft DEEP License are “mooring locations” for construction barges and work support boats in Norwalk Harbor. The draft License, however, does not reference the authority of the Harbor Master to station all vessels in Norwalk Harbor and the need for ConnDOT to secure mooring permits from the Harbor Master. Pursuant to Sec. 22a-113r of the General Statutes, no mooring shall be placed in the Norwalk Harbor Management Area without a permit from the Harbor Master or Deputy Harbor Master. When considering applications for mooring permits, the Harbor Master is guided by the NHMC’s duly established “Rules and Regulations for Mooring and Anchoring Vessels in Norwalk Harbor.”
7. Manresa Island: The NHMC and NSC have focused much attention on plans and proposals concerning the use and condition of Manresa Island, both prior to and following deactivation of the Norwalk Harbor Power Station, including plans and proposals for environmental remediation and future re-development of this prominent waterfront site. Some questions previously submitted by the NHMC and NSC concerning ConnDOT’s proposed use of Manresa Island as a Project staging and storage yard, including questions regarding the potential impacts of that proposed use on surrounding areas and environmental remediation requirements, have not been addressed. In addition, we are not aware of any comments and recommendations provided to date by the Norwalk Planning Commission and Conservation Commission concerning ConnDOT’s proposed use of Manresa Island. The NHMC has informed DEEP and ConnDOT of the Harbor Management Plan provisions that call for waterfront development proposals to be carefully planned, reviewed, and regulated to avoid adverse impacts on the quality of life in waterfront neighborhoods.
Thank you for the opportunity to submit these comments at the outset of the Public Hearing process. The NHMC and NSC look forward to participating in the Public Hearing process concerning this most significant Project as we pursue our missions to protect the public interest for safe and beneficial use of Norwalk Harbor and protection of the harbor’s vital coastal resources. We will provide more detailed comments and recommendations, including recommendations for necessary
strengthening of the License Terms and Conditions, during the Public Comment Hearing.
End