Rosado v. Wheeler

• Citation: 473 F.Supp.3d 115
• Decision Date: 17 July 2020
• Docket Number: 1:17-cv-04843-ERK-RLM
• Parties: Rossana ROSADO, in her official capacity as New York State Secretary of State, et al., Plaintiffs, Town of Southold, New York, et al., Plaintiffs-Intervenors v. Andrew WHEELER, in his official capacity as Acting Administrator of the United States Environmental Protection Agency, et al., Defendants, Connecticut Department of Energy & Environmental Protection, Defendant-Intervenor.
• Court: U.S. District Court — Eastern District of New York

473 F.Supp.3d 115

Rossana ROSADO, in her official capacity as New York State Secretary of State, et al., Plaintiffs,Town of Southold, New York, et al., Plaintiffs-Intervenors

v. Andrew WHEELER, in his official capacity as Acting Administrator of the United States Environmental Protection Agency, et al., Defendants,Connecticut Department of Energy & Environmental Protection, Defendant-Intervenor.

1:17-cv-04843-ERK-RLM

United States District Court, E.D. New York.

Signed July 17, 2020

Andrew Jon Gershon, Austin Thompson, Andrew G. Frank, New York State Office of the Attorney General, Linda Marie Baldwin, NYS Department of State, New York, NY, for Plaintiff Rossana Rosado.

Andrew Jon Gershon, NYS Austin Thompson, Andrew G. Frank, New York State Office of the Attorney General, New York, NY, for Plaintiffs Basil Seggos, State of New York.

Anne C. Leahey, Anne Leahey Law, LLC, Huntington, NY, Jaclyn L. Dar Conte, Devitt Spellman Barrett, LLP, Smithtown, NY, for Plaintiff-Intervenor Town of Southold.

Michael A. Ciaffa, Danielle B. Gatto, Forchelli Deegan Terrana LLP, Uniondale, NY, Susan A. Flynn, Suffolk County Attorney's Office, Hauppauge, NY, for Plaintiff-Intervenor County of Suffolk.

Sean P. Greene, United States Attorney's Office, Brooklyn, NY, for Defendants.

Robert D. Snook, Office of the Attorney General, Hartford, CT, for Defendant-Intervenor.

MEMORANDUM & ORDER

KORMAN, J.:

Beginning where the parties agree, Long Island Sound is a national treasure. It is home to abundant wildlife, host to a litany of activities, and serves as an engine of economic activity that expands throughout our nation. See Town of Huntington v. Marsh , 859 F.2d 1134 (2d Cir. 1988). For these same reasons, public and private stakeholders—neighbors and partners in a variety of realms—sometimes disagree on how to best safeguard its waters. This is particularly true when it comes to the topic of dredge disposal. See Nat. Res. Def. Council, Inc. v. Callaway , 524 F.2d 79 (2d Cir. 1975) ; Forbes v. U.S. Army Corps of Eng'rs , Order and Judgment, No. 95-CV-4374 (E.D.N.Y. June 28, 2000) (Platt, J.). In this latest dispute, the question is whether the Environmental Protection Agency followed the decision-making processes set out by two laws—the Marine Protection, Research, and Sanctuaries Act ("MPRSA"), and the Coastal Zone Management Act ("CZMA")—when the agency designated the Eastern Long Island Sound Site as an open-water dredge disposal site in November 2016.

I. Background

A. Statutory and Regulatory Background

1. The Marine Protection, Research, and Sanctuaries Act

Congress enacted the MPRSA in 1972 to mitigate the environmental impact of unregulated dumping in ocean waters, and to prohibit the unauthorized transportation or dumping of waste from the United States into ocean waters. 33 U.S.C. § 1411. The MPRSA generally applies to ocean waters beyond U.S. territory, and in this regard, complements the Clean Water Act, which prohibits the discharge of pollutants into the navigable waters of the United States. 33 U.S.C. §§ 1311, 1362(12). Since Long Island Sound lies in U.S. waters, it was not initially subject to the MPRSA. However, recognizing the Sound's unique contribution to our nation's environment, economy, and national security, Congress amended the MPRSA to cover the Sound's waters in 1980. Thus, under the Ambro Amendment, "the dumping of dredged material in Long Island Sound from any Federal project (or pursuant to Federal authorization) or from a dredging project by a non-Federal applicant exceeding 25,000 cubic yards" must comply with the MPRSA. 33 U.S.C. § 1416. To this day, the Sound is the only landward body of water subject to the MPRSA.

The MPRSA governs site designations as well as permitting for disposal at such sites. Under the law, EPA and the Army work together throughout these processes. Specifically, Section 1413 of the MPRSA provides that the Secretary of the Army may issue permits for the disposal of dredged material, on the conditions that the Secretary has determined that such dumping "will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." 33 U.S.C. § 1413(a). To determine whether proposed dumping meets this standard, the Army Corps of Engineers is directed to consider the regulatory criteria established by EPA pursuant to Section 1412(a), which states that the EPA "Administrator shall establish and apply criteria for reviewing and evaluating such permit applications, and, in establishing or revising such criteria, shall consider, but not be limited in his consideration to, the following:

(A) The need for the proposed dumping.

(B) The effect of such dumping on human health and welfare, including economic, esthetic, and recreational values.

(C) The effect of such dumping on fisheries resources, plankton, fish, shellfish, wildlife, shore lines and beaches.

(D) The effect of such dumping on marine ecosystems, particularly with respect to—

(i) the transfer, concentration, and dispersion of such material and its byproducts through biological, physical, and chemical processes,

(ii) potential changes in marine ecosystem diversity, productivity, and stability, and

(iii) species and community population dynamics.

(E) The persistence and permanence of the effects of the dumping.

(F) The effect of dumping particular volumes and concentrations of such materials.

(G) Appropriate locations and methods of disposal or recycling, including land-based alternatives and the probable impact of requiring use of such alternate locations or methods upon considerations affecting the public interest.

(H) The effect on alternate uses of oceans, such as scientific study, fishing, and other living resource exploitation, and non-living resource exploitation.

(I) In designating recommended sites, the Administrator shall utilize wherever feasible locations beyond the edge of the Continental Shelf.

Section 1412(c) directs EPA to consider these same factors in establishing and applying criteria for site designations.

Pursuant to these provisions, EPA has promulgated a set of general and specific criteria to guide its dredge disposal site designations. Section 228.5 establishes four general criteria for the selection open-water sites:

(a) The dumping of materials into the ocean will be permitted only at sites or in areas selected to minimize the interference of disposal activities with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation.

(b) Locations and boundaries of disposal sites will be so chosen that temporary perturbations in water quality or other environmental conditions during initial mixing caused by disposal operations anywhere within the site can be expected to be reduced to normal ambient seawater levels or to undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery.

(c) [Reserved by 73 FR 74987 ]

(d) The sizes of ocean disposal sites will be limited in order to localize for identification and control any immediate adverse impacts and permit the implementation of effective monitoring and surveillance programs to prevent adverse long-range impacts. The size, configuration, and location of any disposal site will be determined as a part of the disposal site evaluation or designation study.

(e) EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites that have been historically used.

40 C.F.R. § 228.5. Section 228.6—the specific criteria—further provides that "[i]n the selection of disposal sites, in addition to other necessary or appropriate factors determined by the Administrator, the following factors will be considered:

(1) Geographical position, depth of water, bottom topography and distance from coast;

(2) Location in relation to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases;

(3) Location in relation to beaches and other amenity areas;

(4) Types and quantities of wastes proposed to be disposed of, and proposed methods of release, including methods of packing the waste, if any;

(5) Feasibility of surveillance and monitoring;

(6) Dispersal, horizontal transport and vertical mixing characteristics of the area, including prevailing current direction and velocity, if any;

(7) Existence and effects of current and previous discharges and dumping in the area (including cumulative effects);

(8) Interference with shipping, fishing, recreation, mineral extraction, desalination, fish and shellfish culture, areas of special scientific importance and other legitimate uses of the ocean;

(9) The existing water quality and ecology of the site as determined by available data or by trend assessment or baseline surveys;

(10) Potentiality for the development or recruitment of nuisance species in the disposal site;

(11) Existence at or in close proximity to the site of any significant natural or cultural features of historical importance.

40 C.F.R. § 228.6(a). EPA is further required to base site designations on environmental studies of each site, regions adjacent to the site, and on historical knowledge of the impact of dredged material disposal on areas similar to such sites in physical, chemical, and biological characteristics, and discuss these criteria in any environmental impact statement prepared in connection with a proposed site designation. 40 C.F.R. §§ 228.4, 228.6(b).

Before a site may be used, EPA and the Corps must develop a Site Management and Monitoring Plan ("SMMP"), including an assessment of site conditions, a program for monitoring the site, special management conditions or practices to be implemented at the site to protect the environment, consideration of the quantity of material to be disposed of at the site and the presence...