April 26, 2013
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 11, 2013
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.
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.
March 28, 2013
Two significant milestones were reached yesterday on the New NY Bridge/Tappan Zee Hudson River Crossing project, which will replace the aging Tappan Zee Bridge connecting Westchester and Rockland Counties. First, the New York State Department of Environmental Conservation (“DEC”) issued combined permits under state Environmental Conservation Law Article 25 (concerning activities on tidal wetlands), Article 11 (concerning incidental taking of endangered or threatened species) and Article 15 (water quality certification under Section 401 of the Clean Water Act). Second, the New York State Thruway Authority and DEC announced that they had signed an agreement with the environmental groups Riverkeeper and Scenic Hudson that would avoid those organizations’ potential legal challenges to the federal and state environmental review and permits for the project. 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 project at all levels of government.
The issuance of the Section 401 water quality certification by DEC allows the remaining federal permits for the project to move forward. Project permits from the Army Corps of Engineers and the Coast Guard are anticipated in the upcoming weeks. The first construction barges for the project arrived at the project site this week to begin geotechnical investigations for bridge piles; construction of temporary work platforms for the bridge is expected to begin in early May. These initial steps represent the beginning of a five-year construction process for the new bridge.
The New NY Bridge project is being built using an innovative design-build process, and is believed to be the largest such transportation project in the United States. It is also the first such project in New York State under the recently enacted legislation authorizing design-build projects. The project has involved a labyrinth of environmental reviews, approvals and permitting processes, including the intersection of the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), parkland review under Section 4(f) of the Department of Transportation Act, historic review under Section 106 of the National Historic Preservation Act, consultation under the Endangered Species Act, Essential Fish Habitat review, various Executive Orders respecting wetlands and environmental justice, and Clean Air Act conformity determinations by the Army Corps of Engineers and Coast Guard, among others.
Sive, Paget & Riesel’s involvement with the New NY Bridge project reflects the firm’s recognized expertise and experience with major transportation and infrastructure projects and the navigation of the dizzying complex of required reviews. 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.
March 15, 2013
On April 4, 2013, experts in environmental law, environmental policy, local government, planning, engineering, and environmental science will convene at Hofstra University in Hempstead, NY to discuss lessons learned in the wake of Superstorm Sandy. This conference will examine the significant flaws that Sandy revealed in New York’s housing, transit and electric power systems and infrastructure, and the legal implications of addressing those vulnerabilities and climate-change-related impacts. The panelists will discuss how making communities more resilient will require a rethinking of physical changes to the environment and also a reconsideration of local, federal and state land use and environmental laws and regulations. Insurance and risk management have played, and will continue to play, a central role in response and recovery; those topics, as well as sources of funding for rebuilding and mitigation, will also be addressed.
The conference is co-sponsored by Sive, Paget & Riesel, P.C., the American Bar Association Section on Environment, Energy, and Resources, and the New York State Bar Association. SPR principals Steven Barshov, Michael Bogin, and Pamela Esterman will participate in the conference as co-chairs, moderators, and speakers.
For more information about the conference and to register, please visit the conference website.
October 1, 2012
On September 25, 2012, the Federal Highway Administration, New York State Department of Transportation, and New York State Thruway Authority approved a Joint Record of Decision and Findings Statement for the Tappan Zee Hudson River Crossing Project (the “Project”), concluding the extensive environmental review for the proposed replacement of the existing Tappan Zee Bridge. Sive, Paget & Riesel is serving as special environmental counsel for the Project, which has been designated by the Obama Administration as a high-priority for the nation’s infrastructure needs.
The 3.1 mile-long Tappan Zee Bridge was built in 1955, and it is projected to cost the state approximately $1.3 billion over the next decade in upkeep and repairs. The Project is intended to address the structural, operational, safety, security, and mobility needs of the crossing, maintaining a vital link in the regional and national transportation network while addressing the shortcomings of the existing bridge. An Environmental Impact Statement (“EIS”) for a replacement was prepared to satisfy environmental review requirements under the National Environmental Policy Act (“NEPA”) and State Environmental Quality Review Act (“SEQRA”). After accepting public comment on both the draft and final EIS earlier this year, the lead agencies approved a replacement that includes two new bridge structures (one eastbound and the other westbound) just north of the existing location.
The selected alternative includes multiple Environmental Performance Commitments (“EPCs”) and mitigation measures to avoid, minimize, and offset potential environmental impacts, including - among others - the use of noise barriers, use of ultra-low-sulfur diesel fuel and emissions controls on construction equipment, restricted periods for dredging and pile driving activities, restoration of local oyster habitat, wetlands enhancements at a nearby marsh, tracking and study of endangered sturgeon species, and use of protective measures such as bubble curtains to reduce underwater noise during pile driving.
For more information on the Tappan Zee Bridge replacement, or the environmental review of other major infrastructure projects, contact David Paget.
May 18, 2012
With the federal transportation funding bill set to expire on June 30, 2012, federal lawmakers are negotiating the details of new legislation that could affect the environmental review of many highway, bridge and other surface transportation projects. The United States House of Representatives and Senate passed differing transportation bills earlier this year and recently appointed a committee of legislators charged with reconciling those differences.
Federal transportation programs are currently funded under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), enacted in August 2005. While that bill was set to expire in late 2009, Congress passed a series of temporary extensions while considering more substantive changes in longer-term reauthorization bills.
In April 2012, the House of Representatives passed a new transportation bill (H.R. 4348), with a series of provisions intended to streamline and reduce the review of transportation infrastructure projects under the National Environmental Policy Act (“NEPA”). In its declaration of policy, the legislation states: “[I]t is in the national interest to expedite the delivery of surface transportation projects by substantially reducing the average length of the environmental review process.” (§ 602.) Thus, the bill provides that if NEPA review is not completed with 270 days of the notice of project initiation, “the project shall be considered to have no significant impact to the human environment for purposes of the National Environmental Policy Act.” (§ 618.) The bill further limits the alternatives required to be considered for transportation projects, and states that federal funding of less than $10,000,000, or less than 15 percent of a transportation project’s anticipated costs, shall not trigger NEPA review. (§ 608.)
The Senate version of the transportation bill (S. 1813) does not include those broad NEPA changes. It does, however, require agencies with permitting authority over transportation projects to render decisions within 180 days of a completed application or the lead agency’s final determination under NEPA, whichever is later. (§ 1313(6).) Agencies that miss that deadline could be required to transfer $20,000-$100,000 per week to the agency charged with rendering an ultimate decision on the underlying project. (Id.) Like the House bill, the Senate version also authorizes certain pre-construction activities prior to the completion of NEPA review.
The committee of lawmakers tasked with crafting a consistent transportation bill began formal negotiations on May 8, though their differences between the House and Senate legislation extend far beyond their environmental review provisions. For more information on the federal or state environmental review of transportation projects, contact David Paget or Mark Chertok.
October 17, 2011
Last week, the White House announced the selection of New York’s Tappan Zee Bridge and 13 other priority infrastructure projects for expedited federal permitting and environmental review. Sive, Paget & Riesel is serving as special environmental counsel on the Tappan Zee Hudson River Crossing Project, which is evaluating the proposed replacement of the Tappan Zee Bridge.
According to the White House, the projects were chosen because they are “high priority infrastructure projects that will create a significant number of jobs, have already identified necessary funding, and … the significant steps remaining before construction are within the control and jurisdiction of the federal government and can be completed within 18 months.” The announcement follows an August 2011 Presidential Memorandum directing federal agencies, including the Department of Transportation, to identify proposals for expedited and coordinated environmental review.
By improving coordination among federal agencies, reducing duplicative review and allowing reviews to be done concurrently, the White House expects to reduce the permitting process for the Tappan Zee Bridge by two and a half years. The Presidential Memorandum also calls for progress on these 14 projects to be tracked on a central website, which will provide information on outstanding government approvals and anticipated completion dates.
The Tappan Zee Bridge was built in 1950, and it costs the state $100 million annually for upkeep and repair. New York Governor Andrew M. Cuomo called the recent announcement “a shot in the arm for the [Tappan Zee Hudson River Crossing] project and a major step forward to restoring this key piece of infrastructure and putting tens of thousands of New Yorkers back to work.” The project is currently being reviewed under the National Environmental Policy Act, and construction could begin as soon as 2013.
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