Riverkeeper, Waterkeeper Alliance and Environmental Advocates of New York have filed a lawsuit against New York State officials, seeking to ensure that urgently needed federal Clean Water Act funds will not be illegally used to fund the new Tappan Zee Bridge construction project or for other ineligible projects in the future.
The suit was filed in State Supreme Court in Albany County by Pace Law School’s Environmental Litigation Clinic, representing the groups. It names New York State Department of Environmental Conservation, Environmental Facilities Corporation, Thruway Authority and Public Authorities Control Board, as well as approximately eighteen individuals in their capacities as board members and executives of these agencies.
The lawsuit seeks to invalidate New York State’s proposal to apply $511 million from the Clean Water State Revolving Fund (CWSRF) for bridge construction projects that include dredging, pile driving and demolition. Governor Cuomo rushed his plan through with virtually no oversight from the public and no green light from the U.S. Environmental Protection Agency (EPA), which provides most of this funding to the states in the form of annual capitalization grants. In a September 16, 2014 letter, EPA rejected the vast majority of this loan – $482 million of the total. The legal action seeks a court order that will enforce EPA’s decision and discourage any further attempt to divert clean water funds for improper purposes.
“The EPA took an important step in disallowing the brunt of this loan. However, Albany has vowed to appeal EPA’s decision,” said Paul Gallay, President of Riverkeeper. “The surest way to protect this vital funding source for its intended purpose is to make sure the Court has jurisdiction to enforce the Clean Water Act as necessary.”
“We were deeply disappointed to learn of the state’s plan to divert federal Clean Water Act funding for a major construction project that certainly won’t improve water quality,” said Waterkeeper Alliance Executive Director Marc Yaggi. “Allowing this misuse of funds could set a dangerous national precedent spurring other states to raid federal monies designed to give us clean water. In the vernacular of this holiday season, the State’s economic trick isn’t a treat for our waterways and communities.”
Peter Iwanowicz, executive director of Environmental Advocates of New York said: “There is no less at stake than the future stability of the Clean Water Act. This program has done tremendous work for decades, including helping communities right here in New York to upgrade and protect residents from outdated sewage systems and other infrastructure problems. It is unfortunate we must fight to protect the Clean Water Act from executive overreach, but it is a critical effort given the national consequences. Communities across the state are in desperate need of funding for water infrastructure improvements and the Cuomo Administration should be working with the EPA to develop the funding plan necessary.”
“This lawsuit is absolutely necessary because the State has publicly maintained that EPA approval is not required for it to close on these illegal loans,” said Daniel E. Estrin, Supervising Attorney of the Pace Environmental Litigation Clinic, counsel for the plaintiff groups. “In addition, while we agree with EPA’s Ruling disallowing approximately 95 percent of the proposed New New York Bridge financing on the grounds that those projects are not substantively eligible to receive Clean Water Act assistance, EPA did not make any findings in its Ruling with respect to the grossly illegal process the State utilized when it fast-tracked the approvals of these loans without public input. We cannot and will not stand by and allow the State to steal from the public its statutory and regulatory rights to participate in the CWSRF decision process, which are expressly guaranteed under federal and State law.”
The Tappan Zee project was not included in the State’s CWSRF Intended Use Plan when it was finalized in February 2014. The project was added four months later with no public notice or comment, in violation of Clean Water Act requirements spelled out in EPA regulations.
The bulk of the proposed loan would pay directly for construction costs, including over $100 million for construction related dredging and dredge disposal, $30 million for “armoring” the 12-foot-deep dredged trench with stone and gravel, and $65 million for removal of the existing bridge.
In its Sept. 16 letter, EPA Region 2 Clean Water Division Director Joan Leary Matthews wrote that “construction activities arising from transportation projects do not advance water quality, and CWSRF funding should not be used for these purposes.” Five of the 12 projects in the loan proposal – costing $29 million – were deemed eligible for the funds; the remaining seven – costing a combined $482 million – were deemed ineligible.
The federal government established the CWSRF program to help communities across the nation meet the goals of the Clean Water Act. The program provides critical financial resources to municipalities, including New York City, to support improvements in wastewater infrastructure that lead to reduced sewage pollution and improved water quality in the Hudson River Estuary and other waterways across the state.
The state Environmental Facilities Corporation, which proposed to loan the $511 million to the Thruway Authority, is empowered by state law to administer and finance the CWSRF.
On June 26, 2014, the same day the EFC unanimously voted to approve the loan; there were two water main breaks in Syracuse that shut down streets and left workers and residents in the city without water due to aging infrastructure. This is just one example of a significant need for clean water projects that will go unfunded due to the State rushing this loan through. Using clean water infrastructure funds to pay for a transportation infrastructure project is improper and inconsistent with federal and state law, and sets a dangerous precedent.