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April 26, 2013

Army Corps and Coast Guard Permits Secured for Tappan Zee Bridge Replacement

By: Adam Stolorow — Filed under: Project Updates, Transportation — Posted at 2:01 pm

The New NY Bridge Project crossed the finish line in its pre-construction permitting process yesterday, securing federal permits from both the U.S. Army Corps of Engineers and the U.S. Coast Guard.  A replacement for the aging Tappan Zee Bridge, the New NY Bridge Project will traverse the Hudson River and connect  Rockland and Westchester Counties.

The Army Corps issued individual permits for the bridge under Section 404 of the Clean Water Act (for discharge of fill into navigable waters of the United States) and Section 10 of the Rivers and Harbors Act (for dredging and other in-water construction work).  The Coast Guard bridge construction permit was issued pursuant to the General Bridge Act of 1946.

Issuance of these permits allows construction of the new bridge to begin.  Construction of temporary work platforms is expected to commence within a matter of weeks.  Dredging for the project will begin in August 2013.

Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the New NY Bridge project at all levels of government.  The firm’s involvement with the project reflects Sive, Paget & Riesel’s recognized expertise and experience with major transportation and infrastructure projects and with the navigation of the labyrinth of required reviews, permits and approvals.  The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects.  For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.

April 19, 2013

EPA Proposes Changes to Stormwater Permitting Requirements for Construction and Development

By: Maggie Macdonald — Filed under: Administrative Law, Clean Water Act, Emerging Issues — Posted at 1:33 pm

On April 5, EPA proposed a rule changing the effluent limitation guidelines for stormwater discharges from construction and development point sources.

Why is EPA Changing the Standard?

These changes reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group resolving the 7th Circuit lawsuit, Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012).  The groups challenged the EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and attempts at compliance with effluent limitations guidelines could cost stakeholders up to $10 billion annually.

Who is Affected by these Changes?

The 2009 C&D Rule applies only to stormwater discharged during construction, which generally includes clearing, grading and excavation.  Owners and operators of construction sites with one acre or more of land disturbance are subject to regulation and would be affected by the changes incorporated in the proposed rule.

What are the Changes?

The EPA acknowledged that the numeric turbidity requirements in the 2009 C&D Rule were flawed, and stayed implementation until additional information could be gathered.  Pursuant to the Wisconsin Builders Association settlement, the proposed rule entirely eliminates numeric turbidity limits.  The proposed rule additionally gives permittees more flexibility in adopting stormwater controls by specifically defining “infeasible” to allow consideration of industry practice as well as cost.  EPA has also incorporated common-sense explanations of how the rule should be applied. For example, the requirement to minimize soil compaction is now explicitly inapplicable in areas where the site’s function requires soil compaction, such as foundation pads for buildings or roads; similarly, the requirement to stabilize certain areas does not apply to areas whose function necessitates that they not be stabilized.  These changes, and others, reflect the continuing evolution of the standards for stormwater management under the Construction General Permit.

How Does This Affect Construction in New York?

In New York, the Department of Environmental Conservation (DEC) has authority to administer the NPDES program under its SPDES permit system.  DEC has already adopted many of the 2009 C&D Rule requirements in its Construction General Permit (GP-0-10-001) and the New York State Stormwater Management Design Manual (2010).  Discussion of the effect of the current proposed rule on the DEC Construction General Permit will be forthcoming in another blog post shortly.

EPA is accepting comments on the proposed rule through May 31, 2013.

For more information on stormwater regulation contact Michael Bogin or Maggie Macdonald.

April 12, 2013

City Council Approves Redevelopment of Pier 57 in Hudson River Park

On April 9, 2013, the New York City Council unanimously approved a proposal to redevelop the historic Pier 57 within Hudson River Park, at the foot of West 15th Street in Manhattan.  This followed approval by the City Planning Commission in March, and the environmental review of the project by the Hudson River Park Trust (“HRPT”) and other agencies, through the preparation of an environmental impact statement (“EIS”).  SPR is serving as HRPT’s environmental counsel for the Pier 57 redevelopment, continuing the Firm’s representation of Hudson River Park since its establishment in the 1990s.

Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places.  It has been vacant since the 1990s.  Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier.  The project may also include cultural space, an educational facility, and a marina.

SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River.  This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.

April 11, 2013

Panels Reflect on Lessons Learned After Sandy

Last week, at a conference co-sponsored by SPR, government officials, academics, attorneys, and scientists convened at Hofstra University to discuss the legal and practical consequences of Superstorm Sandy. Expert panels addressed the following questions:

  • How can local governments physically modify their transportation, power, and sanitary infrastructure to adapt to the impacts of climate change, and by what legal mechanisms?
  • Are massive floodgates feasible and desirable for the protection of the New York metropolitan area?  Or do “soft” barriers such as man-made wetlands represent a better alternative?
  • What planning and land use concepts can be used to encourage smart real estate development that responds to climate change risks?
  • Will claims of “scientific uncertainty” hinder climate change adaptation efforts to the same extent that similar claims have hindered climate change mitigation efforts?
  • Where and how should coastal communities be rebuilt? What is the legal framework for government-led “strategic retreat” from the coast?
  • How may relief be obtained from FEMA? How may relief be obtained from insurance companies?
  • What federal, state, and local government programs are available to homeowners and businesses to aid recovery?
  • What resources are available to help individual homeowners who have lost everything in the storm? What has been the experience in New York’s underprivileged communities, and can that be improved?

The conference was chaired by SPR principal Michael Bogin and Hofstra Law Professor Carol Casazza Herman, with critical support from SPR principal Pamela Esterman.  SPR principal Steven Barshov participated as a lecturer, focusing on the integration of infrastructure resilience into planning and development.

Sponsors of the conference were the American Bar Association Section of Environment, Energy, and Resources, the New York State Bar Association, and SPR.

For more information on Sandy recovery or climate change adaptation in the context of development, please contact Michael Bogin, Steven Barshov, or David Yudelson.

2013.4 - Sandy Conference follow-up

Conference speakers: (L-R) Professor Katrina Kuh, Maurice A. Deane School of Law at Hofstra University; Associate Dean Jennifer Gundlach,  Maurice A. Deane School of Law at Hofstra University; Dean Eric Lane, Maurice A. Deane School of Law at Hofstra University; Nassau County Supervisor Ed Mangano; SPR Principal Michael Bogin; Professor Carol Casazza Herman, Maurice A. Deane School of Law at Hofstra University.

April 1, 2013

Supreme Court Allows EPA to Forego Clean Water Act Permits for Logging Roads, Deferring to Agency Interpretation of Its Own Rules

By: Ed Roggenkamp — Filed under: Administrative Law, Citizen Suits, Clean Water Act, Supreme Court — Posted at 1:47 pm

On March 20, 2013, the Supreme Court upheld the Environmental Protection Agency’s (“EPA”) exclusion of ditches, channels, culverts, and other stormwater conveyances associated with logging roads from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”) program established by the Clean Water Act (“CWA”).  The eight-justice majority deferred to EPA’s interpretation of two CWA regulations, although a dissent by Justice Antonin Scalia argued such deference was misplaced and that the conveyances should have been regulated as “point sources” under the Clean Water Act.

The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits.  The defendants  – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations.  One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others.  The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”

NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose.  This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself.  This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.

The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits.  In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.

A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law.  Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.

The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.

For more information on stormwater permitting issues, please contact Michael Bogin.