“Connecticut Attorney General William Tong hailed the decision from the U.S. Second Circuit Court of Appeals as a victory for Connecticut, which has argued that the ability to dump dredged materials in the eastern sound is crucial to the state’s maritime economy.” (Click the bar toggle)
From Connecticut's perspective
— Brendan Crowley,
An EPA decision to create a dumping ground for dredged materials off of New London in the eastern Long Island Sound – which has locked Connecticut and New York in a years-long legal fight – was justified, a federal court ruled on Friday.
Connecticut Attorney General William Tong hailed the decision from the U.S. Second Circuit Court of Appeals as a victory for Connecticut, which has argued that the ability to dump dredged materials in the eastern sound is crucial to the state’s maritime economy.
Tong said he was hopeful the court’s decision could close the litigation with New York over the disposal site that would serve as a depository for the sediment and debris dug up from dredging the shipping channels, rivers, ports and harbors along the sound.
“This is a full and complete victory for Connecticut’s maritime economy,” Tong said in a statement. “Thousands of jobs and billions of dollars in revenue depend on the ability to dredge and safely deposit materials.”
The US Army Corps of Engineers estimated in 2016 that over the next 30 years, 20.2 million cubic yards of dredged materials would need to be dumped in the eastern Sound. The same year, two temporary disposal sites in the area were set to closed, spurring EPA to designate a permanent site to replace them, according to the judgment.
New York had opposed the creation of a permanent dumping site in the eastern Sound, and sued the EPA in 2017, alleging that it was “arbitrary and capricious” for the EPA to designate a new site in the eastern Sound rather than relying on two existing sites in the western Sound, and that the agency didn’t adequately consider the site’s impact on the environment or navigation in the Sound, according to the judgment.
Connecticut joined the lawsuit on the side of the EPA, arguing the site was necessary for the state’s maritime industry. And the US District Court for the Eastern District of New York upheld the EPA’s decision in July 2020. New York appealed to the US Second Circuit Court of Appeals, which also upheld EPA designating the eastern disposal site in a ruling issued on Friday.
When it selected the site in 2016, the EPA said that necessary dredging in the area wouldn’t be possible without an open-water disposal site for dredged material in the eastern Long Island Sound.
Other “viable” methods of managing dredged materials – such as upland disposal or “beneficial use” like land remediation or beach restoration – don’t have the capacity to handle all the material from necessary dredging projects, and those projects would become too expensive as a result, EPA found.
A collection of Connecticut groups – including Electric Boat, Cross Sound Ferry, Connecticut Marine Trades Association and Connecticut Port Authority – pleaded in a brief for the court to allow the eastern Long Island site to be used for dumping dredged materials, saying the consequences for Connecticut’s maritime economy would otherwise be dire.
Those groups argued that the maritime industry depends on its ability to access and navigate waterways, which becomes impossible without dredging. Without access to “cost-effective and environmentally appropriate” options for disposing of dredged materials, that access would be at risk, they argued.
According to advocates of the site, within 20 years, a halt to dredging because of a lack of disposal options would cost Connecticut $398 million in economic production in an industry that contributes $2.7 billion to the state’s economic output – including income losses of $7.4 million to recreational boating and $11 million to freight transportation.
“A dredge slow down or stoppage due to the lack of a practical disposal option in eastern LIS will impact the entire maritime sector on an escalating basis with the greatest economic harm to fishing, ship and boating building/repairing and marinas,” they said.
Brendan Crowley covers energy and the environment for CT Examiner. T: 860 598-0050
Federal appeals court rules in favor of EPA plan to extend open water disposal sites in L.I. Sound
“EPA’s plan is “inconsistent with the very charge of an agency that’s supposed to protect the environment not desecrate it,” Southold Town Supervisor Scott Russell said. Federal, state and local governments have spent millions of dollars to restore and protect the health of the estuary, he noted. Agencies are “working at cross purposes,” Russell said. “They need to start talking to each other.”
From Long Island's perspective
A federal appeals court today scuttled New York State’s hope of blocking the U.S. Environmental Protection Agency from establishing a new open water disposal site for dredged sediments in eastern Long Island Sound.
The plan, finalized in January 2016 renews the designation of four sites in the Long Island Sound as open water disposal sites, including a new permanent eastern site comprising two areas north of Greenport and Orient. The plan calls for continued open water dumping of some 53 million cubic yards of dredged sediments over the next 30 years. The sediments are dug from the bottoms of rivers, harbors and inlets to improve navigability.
Open-water dumping of dredged materials was set to end completely in the Long Island Sound, an estuary of national significance, in 2016. The EPA plan drew searing criticism from elected officials and environmental advocates alike — as well as 1,800 public comments in 2016, when hearings were held on Long Island.
New York State sued the EPA in federal district court in October 2017, arguing that the designations were inconsistent with the state’s coastal management program, adopted pursuant to the federal Coastal Zone Management Act, and inconsistent with the federal Marine Protection, Research and Sanctuaries Act of 1972. The Town of Southold and the County of Suffolk joined the state in the lawsuit. The district court ruled in favor of the federal agency in July 2020 and the state and Southold Town appealed.
Today the Second Circuit Court of Appeals affirmed the district court’s decision granting summary judgment to the EPA.
The eastern region site is off the coast of Southold Town and one of the dumping areas is very close to Fishers Island.
Southold Town Supervisor Scott Russell said today he will confer with the town’s counsel in the litigation to review Southold’s options.
EPA’s plan is “inconsistent with the very charge of an agency that’s supposed to protect the environment not desecrate it,” Russell said.
Federal, state and local governments have spent millions of dollars to restore and protect the health of the estuary, he noted. Agencies are “working at cross purposes,” Russell said. “They need to start talking to each other.”
Adrienne Esposito, executive director of Citizens Campaign for the Environment, said the decision is “painful and disappointing.”
“We’ve worked so hard to restore L.I. Sound,” Esposito said. “And unfortunately the EPA isn’t on board.”
“It’s notable that every New York municipality and stakeholder is against dredge dumping,” Esposito said. Connecticut, however, took the side of the EPA and joined the suit as a defendant-intervenor. “Eighty to ninety percent of the dredge material comes from Connecticut,” Esposito said.
The open water dumping may be easy and cheap, she said, but it’s also very damaging. “There are alternatives. “New York has a beneficial reuse policy,” she said.
“I wonder if Connecticut feels proud they just won a victory to pollute the L.I. Sound,” Esposito said. “It certainly is not a victory for the environment or the public.”