Appeal of 9 - 16 - 2014 Region 2 Decision PDF

SEPTEMBER 16, 2014, AGENCY DECISION
BY U.S. EPA REGION 2
Allen A. Kacenjar
Jessica E. DeMonte
SQUIRE PATTON BOGGS (US) LLP
30 Rockefeller Plaza, 23rd Floor

New York, New York 10112
(212) 872-9800 (Telephone)
(212) 872-9815 (Facsimile)
allen.kacenj ar@squirepb. com
jessica.demonte a squirepb.com
On behalf of the New York State Department of
Environmental Conservation and the New York State
Environmental Facilities Corporation
TABLE OF CONTENTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENT......................................................................................................2
FACTUALBACKGROUND.........................................................................................................6
A.
The National Estuary Program................................................................................. 6
B.
The Clean Water State Revolving Fund .................................................................. 7
C.
The Tappan Zee Bridge Corridor Project ................................................................ 8
D.
The Estuary Protection and Maintenance Projects ................................................ 11
Region 2's Decision............................................................................................... 13
ARGUMENT................................................................................................................................ 14
I.
Region 2 Exceeded Its Limited Authority by Second-Guessing New York's Funding

Decisions........................................................................................................................... 14
II.
Region 2 Lacked the Authority to Unilaterally Delete Projects from New York's
JUP ................................................................................................................................... 18
.
III.
Region 2 Rejected Most of the Bridge Projects Using an Impermissible New

Standard ........................................................................................................................... 20
.
IV.
Region 2's Determination That Seven Projects Are Ineligible for CWSRF Funding Is
Arbitraryand Capricious................................................................................................... 24
A.
Region 2's Determinations Are Arbitrary and Capricious Because They Rely
on Impermissible Factors....................................................................................... 24
B.
Region 2's Inconsistent Treatment of Similarly Situated Projects Further

Demonstrates Its Decisions Were Arbitrary and Capricious . ................................ 26
C.
Each of Region 2's Determinations Are Separately Arbitrary and Capricious..... 27

1.
Removal of Existing Underwater Bridge Structures Implements the

CCMP.... ................................................................................................... 28
a.
Reduction of Sediment Scour, Deposition and Resuspension

Implements the CCMP.................................................................. 28
b.
Elimination of a Source of Lead Contamination to the Hudson

River Implements the CCMP ........................................... ............. 32
C.
Elimination of a Source of Floatable Debris to the Hudson

River Implements the CCMP ...................... .................................. 33
2.
Dredging Contaminated Sediments in the Hudson River Implements

theCCMP.................................................................................................. 35
3.
Armoring the Hudson River Bottom Implements the CCMP...................39
4.
The Underwater Noise Attenuation System Project Implements the

CCMP. ...................................................................................................... 42
5,
The Oyster Bed Restoration Project Implements the CCMP....................43
6.
The Falcon Nest Box Relocation Project Implements the CCMP............44
7.
The Shared Use Path Project Implements the CCMP...............................46
REQUEST FOR RELIEF ............................................................................................ ................. 50
STATEMENT OF ISSUES
Did Region 2 exceed its limited statutory authority by refusing to defer to New
York's primary CWSRF eligibility determinations for seven estuary protection and maintenance
projects?
2.
Did Region 2 exceed its limited statutory authority by deleting the seven estuary
projects from New York's intended use plan?

3.
Did Region 2 exceed its limited statutory authority by creating an impermissible
"mitigation of construction project" standard and using it to reject six of the seven estuary
projects?
4.
Was Region 2's rejection of the seven estuary projects arbitrary and capricious
where evidence demonstrates that each project implements the conservation and management
plan for the New York-New Jersey Harbor & Estuary Program?
SUMMARY OF ARGUMENT
Region 2 violated the Clean Water Act ("CWA") and acted in an arbitrary and capricious
manner when it deemed seven projects that will protect and maintain the New York-New Jersey
Harbor Estuary (the "Estuary Projects") ineligible for CWSRF funding. Unless reversed, Region
2's September 16, 2014 determination (the "Agency Decision") will significantly undermine the
CWSRF program, sowing just the type of uncertainty and litigation risk that inhibits investment
projects.
The three primary statutory problems with the Agency Decision all stem from the same
core flaw Region 2's refusal to abide by the limited role that Congress gave it under the
CWSRF program. First, Region 2 usurped the primary decision-making role Congress assigned
to the States. As detailed in Section 1, the CWA grants States not EPA primary authority to
make CWSRF funding choices based on unique local insights about projects in their jurisdiction.
Congress "intentionally developed" the CWSRF "to provide maximum flexibility to the states,"
and EPA has expressly acknowledged States can use it to fund "virtually any type" of
"estuary ... project." 2 The decisions by NYSEFC and NYSDEC reflect a thorough analysis of
the Estuary Projects on an extensive record. Given Congress' plain instructions that the CWSRF
is State-led, Region 2 was limited to at most conducting a highly deferential review of those
conclusions. The Agency Decision showed no deference at all. Instead, Region 2 made its own
contrary findings, which it used to trump New York's informed decision that the Estuary
Projects would implement the New York-New Jersey Harbor CCMP. Such second-guessing
1 H.R.
2
Rep. No. 99-189, at 23 (1985) (Doc. 61).

Funding Estuary Projects Using the Clean Water State Revolving Fund, EPA Doc. No. 832-F98-005 (Oct. 1998) (Doe. 66).
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impermissibly contradicts Congress' creation of the CWSRF as a vehicle for State-led decisions
to fund "virtually any type" of estuary project with "maximum flexibility."
Second, Region 2 used an impermissible method to impose its will. As Section II
explains, the CWA charges States with developing their own intended use plans ("IUP5"). While
EPA may have other avenues to review actions that have been taken by States under the
CWSRF, it cannot prospectively issue "line-item vetoes" for projects it dislikes by striking them
from an IUP. Yet that is exactly what Region 2 did by concluding that "the seven proposed
projects deemed ineligible for CWSRF funding will be omitted from the Intended Use Plan." 3
That attempt to unilaterally revise New York's !UP violates the CWA and must be overturned.
Third, most of the ineligibility determinations are based on a new standard invented by
Region 2 that has no statutory basis. Specifically, six of the seven Estuary Projects were rejected
because Region 2 determined they are "intended to mitigate harms caused by major new
construction in the estuary." 4 Region 2 offers no support for this novel limitation, which
contradicts the unqualified language of the CWA. Congress did not constrain the CWSRF
program by restricting it to funding only certain estuary-related goals or efforts. Instead, the
CWA broadly instructs that EPA "shall make capitalization grants" for projects States deem
appropriate to "develop[] or implement[] a conservation and management plan" and further
emphasized that the projects only need to be "consistent with" such plans.
Letter from Joan Matthews, Director, EPA Region 2 Clean Water Division, to Joseph Martens,
Commissioner, New York State Department of Environmental Conservation, and Matthew
Driscoll, President and CEO, New York State Environmental Facilities Corporation p. 2 (Sep. 16
2014) ("Agency Decision") (Doc. 8).
4 1d. at p. 3.
CWA 601(a)(1) and 603(f), respectively.
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Congress knew full well that human development would pose ongoing challenges to
estuaries. With that concern in mind, Congress broadly instructed that CCMPs include efforts to
"maintain the chemical, physical, and biological integrity of the estuary.
"6
While they actually
accomplish far more, at an absolute minimum, the Estuary Projects implement the CCMP by
maintaining the integrity of the Hudson River estuary during necessary development. That is all
the CWA requires, and Region 2 cannot invent new hurdles Congress did not impose.
Each of those statutory defects is independently sufficient to require reversal of the
Agency Decision. But even if they could somehow be disregarded, the Agency Decision would
still be arbitrary and capricious for the many reasons provided in Section IV. Beyond being
statutorily defective, Region 2's new "mitigation of construction" standard is also a prime
example of arbitrary decision-making because EPA relied on a "factor[] which Congress has not
intended it to consider" when making its decision. 7 While that flaw taints Region 2's analysis
for six of the seven Estuary Projects, it is the only basis offered for rejecting the oyster bed
restoration and falcon nest box projects. Once that improper factor is removed from the
equation, it is undisputed that those two projects qualify for CWSRF funding. In fact, the
detailed record (and this tiling) demonstrates that each of the seven Estuary Projects satisfies the
CWA's test for CWSRF eligibility by implementing multiple aspects of the CCMP.
Region 2's determinations are separately arbitrary because it treated similarly situated
projects differently. That is apparent from Region 2's decision to approve CWSRF funding for
treatment of stormwater collected from the landings of the New NY Bridge while rejecting other
CWA 320 (emphasis added).

7 Waterkeeper Alliance, Inc. v. EPA, 2005 U.S. App. LEXIS 6533, *25 (2d Cir., Feb. 28, 2005).
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projects based on less direct relationships to that same effort. The Agency Decision is also
arbitrary because it is replete with key factual errors, including the assumptions that:
Sediments to be dredged from the Hudson River are "clean" when irrefutable data
demonstrates that the layers actually inhabited by aquatic organisms are significantly
contaminated by toxic metals, pesticides and PCBs;
It will take years for benthic habitat to be reestablished following armoring, when the
record demonstrates that habitat will be reestablished much more quickly;
There will be no "net" benefit from removing the underwater structures of the
existing Tappan Zee Bridge, when those efforts would eliminate 26 net acres of scour
and generate 2.4 new acres of permanent open-water habitat; and
Dredging will be needed after completion of the bridge construction project, when no
such post-construction dredging is actually planned.
Such errors separately render the Agency Decision arbitrary and capricious for lack of record
support. Indeed, the Agency Decision as a whole fails to support its conclusory findings with
any actual data or support.
If left to stand, the Agency Decision would have significant adverse impacts on the
CWSRF program with nationwide ramifications. It would hinder State funding decisions by
eliminating the certainty of the deferential approach that Congress crafted. Region 2's new
"intended to mitigate ... major new construction" standard would further exacerbate those
concerns with ripple effects that extend well beyond the Estuary Projects at issue here.
Establishing such a new litmus test would spur countless debates about whose "intent" matters,
what constitutes "mitigation" and what qualifies as "major" construction. The inevitable end
result would be second-guessing of projects on numerous grounds in ways that would undermine
States' decision-making and shake the clarity and confidence that is essential to successfully
financing infrastructure projects. That directly contradicts what Congress meant to accomplish
by granting States the broad authority to fund projects that meet simple statutory tests. These
concerns are telling further evidence that the Agency Decision is flawed and cannot stand.
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FACTUAL BACKGROUND
A.
The National Estuary Program
In 1987, Congress created the National Estuary Program set forth in CWA 320. That
program was established to: (1) identify nationally significant estuaries that are threatened by
pollution, development, or overuse; (2) promote comprehensive planning for, and conservation
and management of, nationally significant estuaries; (3) encourage the preparation of
management plans for estuaries of national significance; and (4) enhance the coordination of
estuarine research.' Twenty-eight estuaries are included in the National Estuary Program,
including the New York-New Jersey Harbor & Estuary which was accepted in 1988. Since then,
New York and New Jersey have successfully focused on maintaining, protecting and restoring
`healthy waterways and productive habitats, managing sediments, fostering community
stewardship, educating the public, and improving safe access to our waterways.
"9
CWA 320(b)(4) requires each State to develop and implement a long-term plan
designed to address the health of the State's waters called a Comprehensive Conservation and
Management Plan ("CCMP"). EPA approved the New York-New Jersey Harbor CCMP in
March 1997. Given the substantial effort and careful deliberation that was required to establish
that CCMP, the EPA Administrator described it as "an impressive culmination of a publicprivate process to determine the problems afflicting the Harbor and identify their solutions.
" 10
To facilitate its implementation, the CCMP recommended development of a

comprehensive strategy for habitat protection and restoration. This strategy was prepared by the
8
Water Quality Act of 1978, Pub. L. No. 100-4, Title III, 317(a), 101 Stat. 61 (1987) (Doc. 62).
9 Overview of New York-New Jersey Harbor & Estuary Program,
http://www.harbore,sttiar or labout.htm (last visited November 11, 2014) (Doc. 39).
10 Letter from Carol Browner, U.S. EPA Administrator, to Govenor George Pataki (March 25,
1997) (Doc. 31).
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U.S. Army Corps of Engineers in partnership with the Port Authority of New York and New
Jersey. The resulting document, the Hudson-Raritan Estuary Comprehensive Restoration Plan
("CRP"), was published in 2009. 11 In 2011, the New York-New Jersey Harbor Estuary Program
("HEP") also developed its Action Plan for 2011-2015, which "guides implementation" of the
CCMP to "foster improvements to the health of the Estuary.
" 12
Thus, the CRP and Action Plan
support implementation of the CCMP.

B.
The Clean Water State Revolving Fund
In 1987, Congress also created the Clean Water State Revolving Fund ("CWSRF"). The
fund serves as a broad-based financing source for water-related projects. The CWSRF program
provides, on average, more than $5 billion annually to fund water quality protection projects for
wastewater treatment, non-point source pollution control, and watershed and estuary
management projects nationwide. 1 3 Through the CWSRF, "Congress envisioned that it would be
able to fund virtually any type of water quality project, including nonpoint source, wetlands,
estuary, and other types of watershed projects, as well as more traditional municipal wastewater
treatment systems. " 14 EPA has pushed for the increased use of CWSRF for estuaries 15 ; however,
Hudson-Raritan Estuary Comprehensive Restoration Plan (`CRP") Volume I (2009) (Doc.

33), Hudson-Raritan Estuary CRP, Volume 1I (2009) (Doc. 34).
12
New York-New Jersey Harbor Estuary Action Plan, 2011-2015 (Doc. 36); see also Letter from
James Levine, Sr. Vice President and General Counsel, New York State Environmental Facilities
Corporation, to George Ames, Chief, State Revolving Funds Branch, U.S. EPA (May 28, 2014)
(Doc. 1) (May 28, 2014 Letter from NYSEFC to U.S. EPA).
13
CWSRF: 25 Years of Investment in Our Nation's Water Infrastructure (last visited
November 11, 2014) ( http:I/water.e a. govlgrants firndinGIcwsrl%cwsrf index,cfm ) (Doc. 40).
14
Funding Estuary Projects Using the Clean Water State Revolving Fund, EPA 832-F-98-005
(October 1998) (emphasis added) (Doc. 66).
1s
Id.
I
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of the $100 billion in financial assistance provided by the Nation's CWSRFs since inception,
only $6 million has been used to directly support the 28 Estuaries of National Significance. 16
New York's CWSRF is jointly administered by the New York Environmental Facilities
Corporation ("NYSEFC") and the New York State Department of Environmental Conservation
("NYSDEC" ). 17 New York began using the CWSRF to finance point source water quality
projects during the early 1990s. In 1994, the State's program expanded financing to non-point
source projects. Through the years, New York's fund has successfully financed over 1,650
CWSRF projects totaling nearly $13.6 billion in project dollars. 18 As EPA highlighted in its
Federal Fiscal Year 2013 Program Evaluation Report, New York's CWSRF program is "in
sound health, well managed, and responsive to new initiatives.
" 19
That report also commended
New York for the "continued operation of a very successful CWSRF program.
C.
"20
The Tappan Zee Bridge Corridor Project
The Tappan Zee Bridge was open to the public in 1955 and designed to last for 50 years.
Almost sixty years later, daily bridge traffic now includes about 138,000 vehicles, even though
16
Memorandum from Joseph Martens, Commissioner, New York State Department of

Environmental Conservation, to Gina McCarthy, Administrator, U.S. EPA (June 23, 2014) (Doc.
2).
17 These parties entered into an Operating Agreement with EPA to govern administration of the
CWSRF on March 27, 1992, which has been periodically amended, including in 2006. The most
recent amendment to the Operating Agreement occurred on April 3, 2013, and included revising
the term of the agreement date from December 31, 2012, to December 31, 2014. See Amended
and Restated Operating Agreement (December 2006) (Doc. 32) and Letter from Judith Enck,
Administrator, EPA Region 2, to Joseph Martens, Commissioner, New York State Department of
Environmental Conservation (Doc. 37).
18 New York Federal Fiscal Year 2014 Final Intended Use Plan (December 2013) (Doc. 42).
19 Program Evaluation Report: New York's Clean Water State Revolving Fund Base Program
Activities during FFY 2013, EPA Region 2 (July 29, 2014) at p. 12 (Doe. 5).
20 Id.
the bridge was designed to accommodate 100,000 vehicles a day. 21 Recognizing the age of the
bridge and its increased use, in April 2000, a Long-Term Needs Assessment and Alternatives
Analysis was completed by the New York State Governor's I-287 Task Force. 22 That analysis
revealed both short- and long-term improvements were absolutely necessary. Id. The Tappan
Zee Hudson River Crossing Project will replace the Tappan Zee Bridge with a new bridge that is
designed to last for 100 years without major structural maintenance. 23
After much deliberation about the scope of the project and in direct collaboration with
New York, in October 2011, the Federal Highway Administration ("FHWA") published a notice
of intent for the development of the Tappan Zee Hudson River Crossing Project ("Crossing
Project"). The final environmental impact statement ("FEIS") for the Crossing Project was
signed by the FHWA in July 2012, and a notice of availability was published in the Federal
Register in August 2012. 24 The Joint Record of Decision and State Environmental Quality
Review Act ("SEQRA") Findings Statement were issued in September 2012. 25 These extensive
documents provided a thorough review of the environmental impacts of the proposed project
under the National Environmental Policy Act ("N EPA").
In addition, NYSDEC held several public hearings. On or about March 27 2012, the
New York State Thruway Authority ("NYSTA") and New York State Department of
21
The New York Bridge: About the Project (http://www.newnybridge.com/about/index.html)

(last visited November 11, 2014) (Doc. 41).
22
Final Report for Long Term Needs Assessment and Alternative Analysis I-287 / Tappan Zee
Bridge Corridor, Vollmer Associates, LLP (April 2000) (Doc. 14).
23
See supra at fn. 20 (Doc. 41).
24
77 Fed. Reg. 46433 (August 3, 2012) (Doc. 18).
25
Tappan Zee Bridge River Crossing Project Joint Record of Decision and State Environmental
Quality Review Act Findings Statement, Federal Highway Administration, New York State
Department of Transportation, New York State Thruway Authority (Sept. 2012) (Doc. 19).
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Transportation filed a Joint Application Form seeking related permits.
Following a
determination that application was complete, a Notice of Complete Application and Public
Hearing appeared in the July 25, 2012 edition of the Environmental Notice Bulletin ("ENB")
The Notice announced the availability of, and contained a link to, the application materials and a
proposed draft permit. The NYSDEC adjourned the public hearings to allow the applicant
additional time to work with its design builder. On January 16, 2013, the Department published
a second Notice of Availability including an announcement (with a link to the relevant materials)
announcing a public hearing to receive comments concerning the revised draft permit. Those
public hearings were held on February 6, 2013, in Nanuet and on February 7, 2013, in
Tarrytown. Public comments concerning the revised draft permit were accepted until
February 19, 2013. Throughout this multi-year evaluation, the public had multiple opportunities
to offer input.
Following this extensive review, on October 31, 2012, the FHWA published a Notice of
Final Federal Agency Action on the Crossing Project. 26 On April 13 and April 25, 2013, the
United States Army Corps of Engineers and United States Coast Guard issued permits for the
project. 27 On March 25, 2013, NYSDEC also issued to NYSTA a permit under the New York
State Environmental Conservation Law ("ECL") that established conditions for the construction
of the bridge28 as well as a Water Quality Certification pursuant to Section 401 of the CWA
See 77 Fed. Reg. 65929 (Oct. 31, 2012) (Doe. 20).

27 USACE Permit No. NAN-2012-00090) (April 25, 2013) (Doc. 24); USCG Permit No. 3-13
1 (April 13, 2013) (Doc. 23); see also 78 Fed. Reg. 27473 (May 10, 2013) (Doc. 22).
28
NYSDEC Permit 3-9903-00043/00012 provides that authorization is contingent "on
compliance with the ECL, all applicable regulations and all permit conditions" at p. 2 (Doc. 21).
26
confirming that the Crossing Project will comply with applicable water quality criteria and
limitations.29
D.
The Estuary Protection and Maintenance Projects
In conjunction with the Crossing Project, the NYSDEC and NYSEFC identified 12
projects that warrant CWSRF funding to maintain and protect the health of the estuary:
1. Gay's Point Restoration
2. Piermont Marsh
3. Oyster Bed Restoration
4. Net Conservation Benefit Plan
5. Dredging and Mound Removal
6. River Bottom Armoring
7. Underwater Noise Attenuation Systems
8. Falcon Nest Box Relocation
9. Removal of Existing Structures
10. Storinwater Management Measures
II. Atlantic Sturgeon Outreach Program
12. Shared Use Path
The NYSDEC and NYSEFC carefully evaluated each of these Estuary Projects. That evaluation
included consideration by NYSDEC and NYSEFC of a comprehensive technical report assessing
the CWSRF eligibility of each project which was prepared by an expert environmental
consultant for the NYSTA. 30
NYSDEC and NYSEFC also engaged extensively with EPA during this period. Those
efforts included a May 20, 2014 meeting between NYSEFC representatives and key EPA
CWSRF administrators in Washington, D.C., to review the projects. At that meeting, EPA's
national CWSRF representatives confirmed that the standard for eligibility of a project under the
29
Id. at p. 3.
Water Quality Protection Elements of the New NY Bridge Project, Westchester and Rockland
Counties, New York: CWSRF Technical Memorandum, AKRF Inc. ("AKRF Technical
Memorandum") (May 30, 2014) (Doc. 28).
3o
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CWA is whether the project implements the CCMP. 31 On May 28, 2014, NYSEFC followed up
the meeting with a detailed letter to George Ames, Chief of EPA's State Revolving Funds
Branch explaining why each of the Estuary Projects implemented the CCMP. 32 In a subsequent
conference call with Chief Ames and other EPA CWSRF administrators, EPA concurred with
NYSDEC's and NYSEFC's assessment that the Estuary Projects were eligible for CWSRF
financing. On June 23, 2014, NYSDEC Commissioner Joseph Martens also provided EPA
Administrator Gina McCarthy with a memorandum addressing the Estuary Projects. 33
While those discussions were ongoing, on June 11, 2014, NYSDEC certified, pursuant to
ECL 17-1909, that the Estuary Projects proposed by NYSTA implemented the CCMP. 34 Thus,
NYSDEC published a public notice in its weekly on-line Environmental Notice Bulletin
("ENB") "of a modification to the Annual Project Priority List" maintained as part of the 2014
IUP to include the Estuary Projects, thereby formally amending the IUP. Several environmental
organizations filed detailed comments regarding New York's plans to fund the 12 Estuary
Projects through the CWSRF, which were duly considered. Based on all available information,
on June 26, 2014, the NYSEFC board of directors approved two short-term loans of up to
New York State Thruway Authority Financing for New NY Bridge Project: Fact Sheet,
Environmental Facilities Corporation (June 2014) (Doc. 45).
32 May 28, 2014 Letter from NYSEFC to U.S. EPA (Doc. 1).
33 See supra at fn. 15 (Doc. 2).
34
ECL 17-1909(1)(d) requires NYSDEC to determine that CWSRF projects are in accordance
with "applicable comprehensive studies and reports" and that the projects are necessary for the
accomplishment of the state water pollution control program. That effort also involves
confirmation that reasonable efforts have been taken to develop economically viable projects,
and that there are funds available. After making these determinations, the proposed projects
were approved by NYSDEC. See New York State Water Pollution Control Revolving Fund
Certification of Project Conformance (June 11, 2014) (Doe. 47).
31
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$511.45 million to the NYSTA for the Estuary Projects. 35 Consistent with the standard shortterm loan offered by NYSEFC through the CWSRF, half of the estuary loan ($256 million) will
carry a zero interest rate while the other half will be set at the current market rate (not to exceed
4%). 36 The New York State Public Authorities Control Board approved the interest-free loan at
its meeting on July 16, 2014, while action on the companion market-rate loan is deferred until
those additional funds are needed by the NYSTA. 31
E.
Region 2's Decision
Despite the thorough and deliberate state processes confirming that the Estuary Projects
qualified for CWSRF funding, Region 2 asserted in a letter to NYSDEC dated September 16,
2014 ("Agency Decision") that 7 of the 12 State-approved Estuary Projects were ineligible. This
conclusion was based primarily on Region 2's contention that the Estuary Projects were
"intended to mitigate harms caused by major new construction projects within the estuary.
"38
Accordingly, on September 16, 2014, Region 2 awarded the NYSDEC a capitalization grant
under the CWSRF program of $154,748,000. 39 In doing so, Region 2, for the first time in the
history of the New York CWSRF, directly revised New York's IUP by excluding approximately
$481 million for the seven Estuary Projects Region 2 deemed ineligible.
On October 6, 2014, in accordance with the terms of the grant award, NYSDEC filed a
Notice of Disagreement identifying several fundamental concerns. On November 5, 2014,
35
Clean Water State Revolving Fund Financing of Environmental Projects in the York-New
Jersey Harbor and Estuary Connected with the New York State Thruway Authority's New NY
Bridge Project: Factsheet, New York State Environmental Facilities Corporation (August 5,
2014) (Doc. 57).
36
Id.
37
Id.
38 See Agency Decision (Doc. 8).
39 Grant Agreement No. 36000114 (Sept. 16, 2014) (Doc. 7).
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Region 2 issued an amendment to the capitalization grant. 40 While that amendment slightly
modified the Grant Agreement to incorporate the ultimate results of this appeal, it failed to
address the far more fundamental concerns that necessitated the filing of a Notice of
Disagreement in the first place. Nor did it change the critical threshold language indicating that
recipients "should not draw down on the funds provided" if a notice of disagreement is filed. As
such, that amendment continues to present broad programmatic problems that extend well
beyond the seven Estuary Projects at issue.
ARGUMENT
I.
REGION 2 EXCEEDED ITS LIMITED AUTHORITY BY SECOND-GUESSING NEW YORK'S

FUNDING DECISIONS.
Region 2's Agency Decision disregarding New York's carefully considered approval of
the seven Estuary Projects contradicts the letter and spirit of the CWA. In its very first section,
the CWA expressly recognizes that States not EPA hold primary responsibility:
It is the policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation and enhancement) of land and water resources....
CWA 101(b), 33 U.S.C. 1251(b). Congress specifically extended that core tenet of State
primacy to grant funding decisions, stating "It is the policy of Congress that the States manage
the construction grant program under this chapter...." Iu.
Consistently, when the CWSRF program was enacted in 1987, Congress endowed States
with the primary authority to determine how to invest funds based on unique State insights about
projects in their jurisdiction. This is abundantly clear from the statutory language, which
repeatedly speaks of State funding decisions. See, e.g., CWA 602(b)(3), 33 U.S.C. 1382(b)(3)
40
Amendment I to Grant Agreement No. 36000114 (Nov. 5, 2014) (Doc. 12).
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("the State will enter into binding commitments to provide assistance..."); 603(f), 33 U.S.C.
1383(f) ("A State may provide financial assistance from its water pollution control revolving
fund...."). Indeed, CWA 606(c), 33 U.S.C. 1386(c), expressly instructs "each State" to
"prepare a plan identifying the intended uses of the amounts available to its water pollution
control revolving fund."
The Legislative history further confirms that Congress intended a highly flexible funding
program where States decide how local investments are made while the Federal government
plays a sharply limited role. See H.R. Rep. No. 99-189, at 23 (1985) (Doc. 61) ("[t]he revolving
fund was intentionally developed to provide maximum flexibility to the states. The committee
believes this program should be maintained primarily as a state-controlled effort, with
mandatory Federal requirements, policies, and practices kept to an absolute minimum.
")
(emphasis added). 41
Until Region 2's unprecedented action here, EPA had recognized that fundamental tenet
of the CWSRF program. In fact, EPA's own governing regulations specifically state that the
policy and purpose is "to implement the State water pollution revolving fund program in a
manner that preserves for States a high degree of flexibility for operating their revolving funds
in accordance with each State's unique needs and circumstances."
40 C.F.R. 35.3100(a). 42
Courts have similarly determined that a narrow federal role is required. See, e.g., Citizens
Alert Regarding the Env t. v. EPA, 259 F. Supp. 2d 9, 26 (D.D.C. 2003) (concluding that the
"purpose" of Title VI "was to allow the States greater flexibility and discretion in making
loans").
42
See also 55 Fed. Reg. 10176 (Mar. 19, 1990) ("Each [State Revolving Fund] is to be
administered and operated by the state, with minimal Federal requirements imposed on its
structure.") (Doc. 63). The sparse nature of EPA's regulations further reinforces EPA's longstanding position that States are to receive wide latitude on CWSRF funding decisions with
minimal federal involvement. If the Agency believed it should review project eligibility in
advance (or establish additional eligibility criteria), it had every opportunity to propose
41
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EPA's guidance for the CWSRF program reiterates that same theme. See, e.g., Doc. 65, EPA,
Initial Guidance for State Revolving Funds, January 28, 1998, p. iv (explaining that the CWSRF
program was intended to be "primarily State-designated and operated, with minimal Federal
requirements..,")
EPA has actively encouraged States to expand the use of CWSRFs to provide funding for
other types of projects. That push specifically includes estuary protection efforts. See Doc. 66,
Funding Estuary Projects Using the Clean Water Slate Revolving Fund (Oct. 1998) ("[i]n
creating CWSRF in 1987, Congress envisioned that it would be able to fund virtually any type of
water quality project, including nonpoint source, wetlands, estuary, and other types of watershed
projects.") (emphasis added). In discussing how to approach funding for Estuary Projects, EPA
wrote, "it pays to be innovative," and in comparing estuary protection to non-point source
projects from various states indicated that they "demonstrate the flexibility inherent to the
CWSRF program." Id. See also Doc. 72 ("Tapping the Untapped Potential of the CWSRF'
EPA Publication # 832-N-08-001, p. 2 (Summer 2008)) ("Project eligibilities under 320 of the
CWA represent significant opportunities for the CWSRF program ... CWSRFs can fund projects
located within a National Estuary's watershed study area
if provided for in the 320
Comprehensive Conservation Management Plans ...").

Here, New York exercised its primary authority just as Congress intended. Through a
careful deliberative process, the NYSEFC made an informed decision to fund 12 projects that
will maintain and protect the New York-New Jersey Harbor Estuary. That important decision
was not made lightly. Rather, each project was subject to extensive analysis including a
regulations to that effect. EPA's decision not to do so provides another telling indication that
Region 2's approach here exceeded its authority.
- 16 -
technical memorandum assessing its relationship to the CCMP and whether funding under the
CWSRF was appropriate. 43 NYSEFC also engaged directly with EPA and thoroughly
considered the Agency's comments and questions (as well as comments filed by several
environmental interest groups) before reaching a final decision. 44 By deciding to authorize
funding for these projects, NYSEFC did exactly what the CWA allows and what EPA had been
urging for years: it adopted an "innovative" funding approach reflecting "the flexibility inherent
to the CWSRF program" to fund estuary projects. 4s
In light of the limited, secondary role Congress assigned EPA under this program, Region
2 was obligated to give New York's determinations substantial deference. But no facet of the
Agency Decision shows even a hint of deference. Instead, it created a new, unlawful standard to
deem the projects ineligible. Region 2 then impermissibly substituted its own views for New
York's expertise (and the expert analysis of AKRF) by deeming the Estuary Projects ineligible.
That second-guessing contradicts Congress' creation of a funding program to give "maximum
flexibility to the states" with federal restrictions "kept to an absolute minimum." H.R. Rep. No.
99-189, at 23 (1985). Doc. 61.
Worse yet, Region 2 attempted to justify that action by claiming that New York's
projects presented a "unique circumstance" with requests "no other state has made.
"46
That
rationale disregards EPA's own regulations calling for a "high degree of flexibility" in funding
43
See Doc. 28 (AKRF Technical Memorandum).

See, e.g., Does. 2, 51, and 52.
45
That approach is also fully consistent with the Operating Agreement for New York's CWSRF
program (Doc. 32). Section 2.B. of the Operating Agreement allocates the "Roles and
Responsibilities" of the NYSEFC, NYSDEC, and EPA. The agreement specifically deems the
NYSDEC and NYSEFC "responsible for all actions necessary to comply with the requirements
of Title VI" including to "develop the IUP" and "perform technical project reviews...." Id. at
p. 5. Doc. 32.
46
Doc. 8 (Agency Decision, p. 1).
44
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decisions to address "unique needs and circumstances" and encouraging innovation by States. It
also ignores the long-standing Agency guidance promising the flexibility to fund "virtually any
type of water quality project" and actively urging creative approaches for estuaries. 47 Region 2
cannot backtrack from EPA's long-standing regulations and guidance just because it does not
prefer New York's carefully considered approach. 48
II.
REGION 2 LACKED THE AUTHORITY TO UNILATERALLY DELETE PROJECTS FROM NEW

YORK'S IUP.
Beyond failing to give New York's determinations the requisite deference, Region 2 also
used an impermissible method to impose its will. CWA 606(c) gives States the plenary
authority to establish their own intended use plan. While EPA is authorized to conduct an annual
audit of each IUP, neither CWA 606 nor any other provision allows the Agency to unilaterally
amend an IUP by just deleting projects it dislikes. EPA is on record, in court, saying as much.
See U.S. v. Smithfield Foods, 965 F. Supp. 769, 788, n.26 (E.D. Va. 1997) (citing the United
States' contention that "while EPA may require a state to refund monies loaned in violation of
the financial restrictions set forth in a state revolving fund agreement, the EPA cannot approve
or disapprove of a particular project...")
(emphasis added).
Yet that is exactly what Region 2 did when it concluded that "the seven proposed projects
deemed ineligible for CWSRF funding will be omitted from the Intended Use Plan"
47
(emphasis
Funding Estuary Projects Using the Clean Water State Revolving Fund, EPA Doc. No. 832-F98-005 (Oct. 1998) (Doc. 66) (emphasis added).
48
In addition to violating the CWA, reversing these long-standing instructions would shake the
foundation of the CWSRF program. Penalizing New York for taking an innovative approach
here would deter states nationwide from developing the types of creative solutions that are
needed to manage the increasing tension between growing population centers and natural water
resources. Just when that flexibility is needed most, Region 2's decision would strip it from the
process.
- 18 -
added). 49 The Region took it upon itself to issue the Grant Agreement "as modified, to
NYSDEC," including the requirement that if New York did not acquiesce, it would not receive
any funding even for projects that are not in dispute. 50 Instead of displacing New York from its
statutory role as author of its IUP, Region 2 was required to take one of two alternate paths.
First, the grant regulations allow Region 2 to either "approve, conditionally approve, or
disapprove" New York's grant application within 60 days of receipt. 40 C.F.R. 35.110. Region
2 took none of those options; instead it attempted to directly rewrite New York's IUP. 51
Second, if Region 2 determined that New York had "not complied with its agreement ...
or any other requirement," it was obligated to "notify the State of such noncompliance and the
necessary corrective action." CWA 605(a), 33 U.S.C. 1385(a). That notice would then trigger
a 60-day period for the State to take corrective action. That difference is critical because, rather
than being faced with a demand to execute a grant agreement that eliminates key projects and
holds the funding for other, undisputed projects hostage, New York would have received an
opportunity to prepare and submit any additional factual and legal support needed to resolve the
49
Doe. 8 (Agency Decision, p. 2).

50 Specifically, both the original Grant Agreement and Amendment 1 provide that "No CWSRF
funds may be expended on ineligible projects, including those detailed in the attached
September 16, 2014 letter from Joan Leary Matthews, EPA Region 2 Clean Water Division
Director." Does. 7 and 12. Both also further provide that "[i]n case of disagreement" with a
grant condition "until the disagreement is resolved, the recipient should not draw down on the
funds provided by this award/amendment...." Does. 7 and 12. Because New York had to
submit a Notice of Disagreement on October 6 to seek redress from Region 2's unlawful denial
of the projects in question (and will have to submit a similar Notice in response to Amendment 1
for the same reasons), the grant prohibits New York from receiving any funds for even the
projects that are not in dispute. Consequently, the Agency Decision holds all grant funds hostage
as leverage.
51
EPA's own regulations show this is not its proper role. 35 C.F.R. 35.3150(a) provides that
the State "must prepare" the IUP and EPA "must receive the IUP prior to the award of the
capitalization grant" meaning that EPA's role is to act on the IUP it "receives" from the State,
not substitute its judgment by rewriting the IUP.
-19-
issue 52 Having failed to take either path, Region 2's unilateral revision of New York's IUP
violated the CWA and its implementing regulations and must be reversed.
I11. REGION 2 REJECTED MOST OF THE BRIDGE PROJECTS USING AN IMPERMISSIBLE NEW
STANDARD.
Region 2 based most of its ineligibility determinations on a new standard that lacks any
statutory or regulatory basis. Namely, the Region rejected six of the seven projects because they
are "intended to mitigate harms caused by major new construction within the estuary." Doc. 8
(Agency Decision, p. 4).
The only support Region 2 offered for this new constraint is a
one-sentence negative inference that "[t]here is no evidence in CWA 320(b)(4), 601(a)(2), or

603(c)(3) that the CWSRF was intended to fund such projects." Id. at 2.13
To the contrary, there is ample evidence that such projects fall within States' broad
discretion to fund. Congress established that EPA "shall make capitalization grants to each State
for the purpose of establishing a water pollution control revolving fund ... for developing and
implementing a conservation and management plan under [CWA 320]." CWA 601(a)
(emphasis added). Section 603(1) similarly confirms that a "state may provide financial
assistance from its water pollution control revolving fund" for projects that are "consistent with
plans ... developed under" CWA 320. (Emphasis added.) Those provisions create a simple
test: any project "implementing" or "consistent with" a conservation plan is covered
52
Despite Region 2's decision, the IUP process has never been focused on individual project
eligibility. Rather, it focuses on overall CWSRF funding plans. This is evident from the limited,
two-line descriptions that Region 2 instructed the IUP should include for individual projects.
Region 2's recognition that such summary descriptions are appropriate, further demonstrates that
a project-by-project eligibility analysis was never intended.
53 Undermining Region 2's argument, however, is the fact that CWSRFs nationwide fund
projects every year and in every state for which the CWA contains no express permission.
Accordingly, Region 2's reliance on the absence of permission as evidence of prohibition not
only fails, but further evidences that its basis for the Agency Decision is arbitrary and capricious.
01iZ
irrespective of whether it relates to mitigation, construction or anything else. Region 2 cannot

invent a new restriction from thin air that Congress did not impose. Rather, it is well-settled that
"Congress' silence signifies merely an expectation that nothing more need be said in order to
effectuate the relevant legislative objective" and moreover, "an inference drawn from
congressional silence certainly cannot be credited when it is contrary to all other textual and
contextual evidence of congressional intent." Burns v. United States, 501 U.S. 129, 136 (1991).
Here, the "textual and contextual evidence of congressional intent" unequivocally
contradicts Region 2's new restrictive view. As detailed in Section L, "[t]he revolving fund was
intentionally developed to provide maximum flexibility to the states. "54 Imposing post-hoc
limits directly contradicts that intent by restricting state flexibility. Congress' fundamental
purpose of empowering states with a flexible tool to resolve complex challenges including its
broad charge that funding "shall" extend to any project implementing a "conservation and
management plan" for estuaries must be interpreted broadly.
The Agency Decision also inappropriately constrains CWA 320. Congress recognized
that the challenges facing estuaries were highly complex and called for
"comprehensive
conservation and management plans" to address all related issues. 55 When it enacted CWA
320, Congress knew full well that one of the issues necessitating a "comprehensive" plan was
the growing press of development in and around estuaries. See P.L. 100-4, Title III, 317(a),
101 Stat. 61 (Doc. 62) (explaining that "Congress finds and declares that ... increasing coastal
population, development, and other direct and indirect uses of these estuaries threaten their
54
See H.R. Rep. No. 99-189, at 23 (1985) (Doc. 61) (emphasis added).
55
33 U.S.C. 1330(a)(1) (emphasis added).
-21-
health and ecological integrity") (emphasis added). 56 Having created CWA 320 with that
concern in mind, Congress required that CCMPs focus not only on restoring estuaries but also on
broadly identifying ways to "maintain the chemical, physical, and biological integrity of the
estuary" in light of inevitable growth and development projects.
The New York-New Jersey Harbor CCMP was designed to meet just such challenges.
For example, in its "Management of Habitat and Living Resources" section, the CCMP
recognized concerns associated with "coastal development," "shoreline and aquatic habitat
development," and "human disturbance of natural habitats. " 57 Consistent with Congress'
purposes for CWA 320, the CCMP identified an express objective of developing a
"comprehensive regional strategy ... to mitigate continuing adverse human induced impacts.
-
58
"
That precisely describes the Estuary Projects at issue here efforts to implement the EPAapproved CCMP by "mitigating" impacts that would otherwise occur in and around the estuary.
Congress did not constrain the CWSRF program by limiting it to funding only certain
narrowly defined estuary-related goals or particular aspects of CCMPs. Instead, it broadly
instructed that EPA "shall make capitalization grants" for projects States deem appropriate for
"developing or implementing a conservation and management plan" or which are "consistent
with" such plans. CWA 601(a) and 603(f). That encompasses all aspects of the New York56
See also H.R. 108-678, September 13, 2004, the Committee on Transportation and
Infrastructure recommended that H.R. 4731 (which amended section 320 by reauthorizing the
National Estuary Program's funding), pass without amendment. The report explained that most
estuaries in the United States are "experiencing stress from physical alteration and pollution
often resulting from development and rapid population growth in coastal cities and counties" and
that as such the "National Estuary Program [was] designed to promote comprehensive planning
for long-term protection of estuaries." (Doe. 64.)
57 1d. at 21 (Doe. 30).
58 Id. (emphasis added). See also Objective H-1 of the CCMP, which is to "[d]evelop a
comprehensive regional strategy to ... mitigate continuing adverse human-induced effects."
(Doc. 30.)
-22-
New Jersey Harbor CCMP, including those aimed at maintaining the estuary by mitigating the
impacts of human development. Region 2's attempt to create a completely new standard and
carve out projects "intended to mitigate harms caused by major new construction within the
estuary" disregards the broad statutory language Congress enacted to provide comprehensive
coverage of CWA 320 projects, including to address development-related concerns. Region 2
cannot ignore those instructions and administratively narrow States' ability to implement
comprehensive management plans.
Final proof that Region 2's new bright-line "no construction" rule cannot stand lies in the
significant collateral damage it would inflict. CWA 601(a)(2) provides a separate grant of State
authority to fund non-point source projects. Just like the statutory language authorizing CWSRF
funding of estuary projects, that provision lacks any express instructions regarding construction
projects. Thus, taking Region 2's no projects "intended to mitigate harms caused by major new
construction" standard to its logical conclusion would also preclude construction-related nonpoint source projects that have traditionally been funded under the CWSRF. 59 That absurd result
further illustrates why Region 2's approach violates the CWA and cannot stand. Likewise,
Region 2's focus on the mitigation "intent" of these projects would open a Pandora's Box of
ambiguous inquiry into the motives behind each and every project. The CWA's plain language
calls for a far simpler approach where states need only answer whether projects "implement" or
are "consistent with" a CCMP not assess why those are being undertaken.
59
See, e.g., Doc. 70 (identifying examples of such non-point source projects).
- 23 -
IV. REGION 2's DETERMINATION THAT SEVEN PROJECTS ARE INELIGIBLE FOR CWSRF
FUNDING Is ARBITRARY AND CAPRICIOUS.
While there is no need to look beyond the statutory defects detailed above to overturn the
Agency Decision, each of Region 2's individual project determinations are separately arbitrary
and capricious. Agency actions are arbitrary and capricious where, as here, EPA "has relied on
factors which Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view."
Waterkeeper^ Alliance, Inc. v. United States Environmental Protection Agency, 2005 U.S. App.
LEXIS 6533, *25 (2d Cir., Feb. 28, 2005). 60
A.
Region 2's Determinations Are Arbitrary and Capricious Because They Rely
on Impermissible Factors.
Region 2's rejection of six of the seven projects as "intended mitigation" measures for the
new bridge project fails as a threshold matter. As detailed in Section III above, that is an
impermissible rationale for determining CWSRF eligibility. Even if that failing did not present a
clear statutory violation (which it does), it would still be a prime example of the Agency
attempting to rely "on factors which Congress has not intended it to consider...." Id. This basis
alone invalidates the Region's determinations for the following six projects: (1) the removal of
the existing Tappan Zee Bridge structure, (2) the dredging of sediments in the Hudson River, (3)
the armoring of the Hudson River bottom, (4) underwater noise attenuation, (5) oyster bed
restoration, and (6) falcon nest relocation.
Region 2 also relied on a second impermissible factor when it concluded that funding
under New York's CWSRF should be reserved for the "reasonably anticipated future funding
60
Accord Natural Resource Defense Council v. ?4luszynski, 268 F.3d 91, 96 (2d Cir. 2001).
-24-
needs associated with the repair, replacement, and upgrade of New York's municipal wastewater
infrastructure" rather than the Estuary Projects. 61 Nothing in the CWA permits the Agency to
base eligibility determinations on its views about future funding needs or its preferences about
whether wastewater infrastructure or estuary projects are more valuable. Both categories receive
equal priority in the statutory language, and the 2006 Amended and Restated Operating
Agreement establishes that New York, not EPA, "will consider the long term financial health and
viability of the CWSRF." 62
Furthermore, EPA is on record instructing States to use an integrated scoring system for
ranking projects from different categories in their IUPs. 63 New York in fact did so here. 64
Region 2 cannot contradict EPA's own instructions to score projects from different categories on
an integrated basis by then attempting to play those same categories against each other. In any
event, as NYSDEC and NYSEFC have already explained, funding the seven Estuary Projects
will have "no impact on EFC's ability to fully fund projects anywhere in New York State in
Federal Fiscal year 2014. 6 For all of these reasons, Region 2's reliance on this inappropriate
factor to deem the Estuary Projects ineligible renders its decision arbitrary and capricious.
Agency Decision, p. 2 (Doc. 8).

2006 Operating Agreement, Doc. 32, p. 8. Indeed, NYSDEC and NYSEFC have managed
New York's CWSRF with great success for decades, as EPA has readily acknowledged and
praised. See, e.g., Doc. 5.
63
See Doc. 67, p. 1 (explaining that "if a state is going to finance nontraditional water quality
projects with funds from its Clean Water State Revolving Fund, then the state must have an
`integrated planning and priority setting system").
64
See , e.g., Doc. 42, Appendix C.
65
New York State Thruway Authority Financing for New NY Bridge Project: Fact Sheet,
Environmental Facilities Corporation (June 2014) (Doc. 45); see also [June 11, 2014
Environmental Notice Bulletin] (indicating that the Estuary Projects would not "affect access to
subsidized funding for any other projects in such funding categories") (Doc. 46) [June 25, 2014
letter to Assemblyman Brian Kavanaugh] (explaining that the Estuary Projects will "have no
61
62
-25-
B.
Region 2's Inconsistent Treatment of Similarly Situated Projects Further

Demonstrates Its Decisions Were Arbitrary and Capricious.
The Agency Decision also concluded that five projects were eligible for CWSRF funding
on the premise that they "are not tied to the bridge construction itself." That affirmative
eligibility determination only further illustrates the arbitrary nature of the line Region 2 attempts
to draw. One of those projects involves the installation of stormwater management systems as
part of the landings of the new bridge. Specifically, stormwater runoff from the landings would
be captured and conveyed to detention ponds and other features to prevent it from directly
entering the Hudson River. 66 While that project implements the CCMP (and thus qualifies for
CWSRF funding), 67 there is no discernable difference between it and several of the other Estuary
Projects that Region 2 disallowed. If anything, constructing features to convey and manage
stormwater flow from the new bridge itself is more closely related to the construction of the New
NY Bridge than removing the underwater aspects of the decommissioned Tappan Zee Bridge or
addressing related sediment impacts from the old bridge.
That distinction without a difference further demonstrates the arbitrariness of Region 2's
decision to reject six projects because they were "intended to mitigate harms caused by major
new construction in the estuary.
" 68
Even if that were a permissible line to draw, EPA "must
apply [its] methodology in a way that is logical and internally consistent." Catskill Mts. Chptr.
impact on EFC's ability to fund projects anywhere in New York State this FFY, including New
York City") (Doc. 50).
66
See, e.g., Doc. 28 (AKRF Technical Memorandum), p. 38-40.
The Stormwater Management System project implements the CCMP in multiple ways,
including by: (i) reducing floatables that negatively impact aquatic species, (ii) lessening adverse
impacts of eutrophication, including hypoxia, resulting from human activities by preventing
nutrients and organics from entering the waterway, and (iii) controlling point and non-point
loading of pollutants. (Doc. 28, AKRF Technical Memorandum, pp. 5, 24-25 and 25-26,
respectively.)
68 Agency Decision at p. 3 (Doc. 8).
67
-26-
of Trout Unlimited Inc. v. EPA. 2014 U.S. Dist. LEXIS 42535, *139 (S.D.N.Y., Mar. 28, 2014).
Agencies "cannot simply adopt inconsistent positions without presenting `some reasoned
analysis." Huntington Hosp. v. Thompson, 319 F.3 d 74, 79 (2d Cir. 2002). Region 2's disparate
treatment of similarly situated projects without explanation 69 falls well short of that mark.
Region 2's own inconsistency also reveals the fundamental concerns with its proposed
new test. By its very nature, the Agency's new test would require speculation on an array of
highly subjective questions including "What qualifies as mitigation?", "When is a harm `caused'
by construction?", "What type of causal relationship needs to exist?", "How directly related may
a project be before it becomes ineligible?" and "Whose `intent' is relevant?" If Region 2 could
not apply its own test consistently when assessing just 12 discrete projects, how can it reasonably
expect states to vet many more when developing IUPs? That dramatic shift from meeting simple
statutory criteria to evaluating a host of subjective extra-statutory questions would risk
paralyzing CWSRF funding efforts, while generating unpredictable litigation risk that is the bane
of infrastructure investment projects. Region 2's own experience here illustrates how
unworkable that approach would be.
C.
Each of Region 2's Determinations Are Separately Arbitrary and Capricious.
As detailed below, the Agency Decision is separately arbitrary and capricious for each
project because it contradicts the record, is replete with factual inaccuracies and fails to give the
69
See Motor Vehicle Mfrs. Ass'n v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983) (At a
minimum, "the agency must ... articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.
").
- 27 -
requisite deference to New York's informed decisions that the Estuary Projects implement the
CCMP. 70
1. Removal of Existing Underwater Bridge Structures Implements the
CCMP.
This project involves the removal of underwater structures associated with the current
Tappan Zee Bridge. These structures have morphological effects by altering local hydrodynamic
conditions. 71 Indeed, the causeway and piers of the existing bridge cause river currents to locally
scour bottom sediments, resulting in depressions in the river alongside the bridge. To summarize
the detailed technical support in the record, 72 removing the underwater structures will implement
the CCMP's goals in three independent ways: (1) by reducing sediment scour, deposition and
resuspension; (2) by eliminating a source of lead contamination; and (3) by removing a source of
floatable debris. 73 Each constitutes an individual basis for CWSRF eligibility. 74
a. Reduction of Sediment Scour, Deposition and Resuspension
Implements the CCMP.
Removing the underwater structures associated with the original bridge will eliminate the
scour and deposition associated with those features. As a direct consequence, this project will
benefit the natural sediment transport process within the estuary thereby improving the
Indeed, as detailed above, the Agency Decision contravenes the discussions NYSDEC and
NYSEFC had with EPA headquarters regarding the projects, which indicated that the State's
determinations would be respected.
71
See Doc. 28 (AKRF Technical Memorandum, p. 26); Doe. I (May 28, 2014 Letter from
NYSEFC to U.S. EPA, p. 9).
72 The State's demonstration of compliance with the CCMP is set forth in detail in the AKRF
Technical Memorandum (Doc. 28), the May 28, 2014 Letter from NYSEFC to U.S. EPA (Doc. 1),
the July 2, 2014 Letter from NYSEFC to U.S. EPA (Doc. 4), and supplemented by the AKRF
Response to Agency Decision (Doc. 11), which are incorporated by reference herein.
73
See id.
74
Moreover, the NYSDEC permit expressly requires demolition and removal of the existing
bridge in accordance with specific standards thereby effectuating the implementation of the
CCMP.
70
surrounding habitat and ecosystem. As explained in the comprehensive technical documents

already provided, 7s the removal project will implement the goals of the CCMP by:
Restoring and maintaining an ecosystem which supports an optimum of diversity of
living resources on a sustained basis;
Preserving and restoring ecologically important habitat and open space;
Minimizing erosion, decreasing soil and water loadings of sediment and pollutants to
the Flarbor/Bight; and
Preserving, managing and enhancing the estuary's vital habitat, ecological function
and biodiversity. 7
The project also meets the objectives of the CCMP by:
Managing shoreline and aquatic habitat modifications;
Minimizing human disturbance of natural habitats; and
Preserving and improving fish, wildlife and plant populations and biodiversity. 77
Region 2 cannot (and does not even attempt to) dispute these benefits. For example,
there is no question that removing underwater bridge features will "minimize human
disturbance" of the "natural habitats" involved. Similarly, this project will "restore" and
"preserve" the ecosystem by reducing sediment resuspension and movement that will minimize
habitat disturbances in the downstream reaches of the estuary. These factors alone are more than
sufficient to meet the test for CWSRF funding because the removal project implements the
CCMP.
The State's demonstration of compliance with the CCMP is set forth in detail in the AKRF
76
See Doe. 30 (COMP, "Management of Habitat and Living Resources" Chapter, p. 21), see also
Doc. 36 (Action Plan, p. 10) (which also includes the goal of "cleaning up pollution in the
estuary").
77
See Doe. 30 (CCMP).
7s
-29-
Despite such benefits, the Agency Decision summarily contends, without support, that
the project is ineligible because "any decrease in these impacts as a result of the removal of the
old bridge will be offset by the increased sediment scour, deposition and resuspension resulting
from the presence of the new bridge structures.
" 78
That speculation is completely irrelevant for
purposes of CWSRF funding. As detailed above, the project at issueremoval of the existing
structurewill have demonstrated benefits to the ecosystem in direct furtherance of the CCMP.
No more is needed to establish eligibility and the Region's attempt to implicate the new bridge
project is arbitrary and capricious.
But even if the new bridge could be considered, the Region's theory that it would "offset"
the removal benefits is still factually baseless. As shown by extensive study, the new bridge will
reduce scour dramatically as compared to the existing structure. Specifically, the area of the
river affected by scour will fall from approximately 62 acres to 36 acres. 79 The design of the
new bridge, with its increased distance between piers, will also attenuate the inter-pier water
velocities further decreasing scour. 80 Therefore, even if it were appropriate to consider the
combined effect of both actions, which it is not, they would still have a net, long-term benefit to
the estuary in direct furtherance of the CCMP.
The Agency Decision also cites another irrelevant issue to support its position.
Following Region 2's necessary concession that "where the underwater structures are removed"

See Doc. 28 (AKRF Technical Memorandum, p. 27); Doc. 11 (AKRF Response to Agency
Decision, p. 1-2); Doc. 17 (Final Environmental Impact Statem( ,nt for Tappan Zee Hudson River
Crossing Project ("FEIS"), at Chapter 15, "Water Resources").
80 See Doc 28 (AKRF Technical Memorandum, p. 27); Doc. 11 (AKRF Response to Agency
Decision, p. 1-2).
78
79
II
the river "may eventually recolonize with benthos,
" 81
it speculates that "routine dredging
operations to preserve and maintain the navigation channels," will nevertheless continue to
adversely impact the ecological diversity of the Hudson River habitat. 82 Region 2 thus seems to
contend that there is no point trying to mitigate impacts of the existing bridge because other
harms are inevitable. That approach disregards the very point of mitigation, and would preclude
projects which surrounding challenges make the most critical.
The Region's speculation about dredging activities beyond the scope of the project is also
unsupported. In fact, NYSTA is not planning any future routine dredging operations to preserve
or maintain commercial or recreational navigation in the channel and no dredging of the
navigation channel will be performed as part of the construction activities for the new bridge. 83
Additionally, no maintenance dredging of the construction channel is expected. Instead, once
construction on the new bridge is complete, these aspects of the river will revert to natural
conditions. 84 As discussed in Chapter 18 of the FEIS, "Construction Impacts," deposition
following construction is expected to occur within the channel at a rate of about one foot per year
and recolonization by benthic organisms is expected to begin within a few months after
completion. 85 As such, removing the existing structures will in fact support long-term habitat
improvement. In the words of the CCMP, that directly translates to "restoring ecologically
important habitat and open space.... " 86
81
Id.
82 Doc. 8 (Agency Decision, p. 5).
83
See Doc. 11 (AKRF Response to Agency Decision, at 1-2).
84
See id.
85 See id.; Doc. 17 (FEIS, Chapter 18 "Construction Impacts").
86 Doe. 30 (COMP, "Management of Habitat and Living Resources," p. 21).
-31-
Region 2 implicitly acknowledges this long-term benefit in its last argument, when it
contends that short-term increases in suspended sediments during the removal somehow render
the project ineligible. 87 That rationale, if followed, would invalidate countless projects
nationwide including numerous efforts that require in-water work with short-term construction
impacts to gain long-term benefits. That is exactly the case here. Removing the existing
structure will result in a permanent net gain of 2.4 acres of open water benthic habitat for the
estuary while reducing sediment scour and achieving the deposition improvements identified
above. 88 These long-term benefits unequivocally implement the CCMP, and Region 2's
disregard for them renders its decision arbitrary and capricious.
b. Elimination of a Source of Lead Contamination to the Hudson
River Implements the CCMP.
The bridge removal project separately advances the CCMP and Action Plan by
eliminating existing lead-based paint. Sediments in the vicinity of the existing bridge show
elevated concentrations of lead and removing the existing structure will eliminate a source of
lead contamination from the Hudson River. 89 Reducing lead contamination is directly relevant to
the following CCMP goals:
Restoring and maintaining a healthy and productive Harbor/Bight ecosystem with no
adverse ecological effects due to toxic contamination;
Eliminating toxicity or bioaccumulation impacts on living resources by reducing
contaminated sites and managing risk to humans from seafood contamination;
Reducing sediment hot spots and point and non-point sources of contaminants
entering the Harbor, such that levels of toxics in newly deposited sediments do not
inhibit a healthy thriving ecosystem and can be dredged and beneficially reused;
87

See Doc. 11 (AKRF Response to Agency Decision, p. 1-2).
89 See Doc. 28 (AKRF Technical Memorandum, p. 31); Doc. I (May 28, 2014 Letter from
NYSEFC to U.S. EPA, p. 9); Doc. 11 (AKRF Response to Agency Decision, p. 3).
88
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Achieving a quality of sediment entering the Harbor that supports the ecological
health of the estuary; and
Tracking and cleaning up other sources of chemicals of concern. 90
Region 2 attempts to minimize this benefit by contending that due to previous repaintings of the existing structure, the "risk posed by the presence of lead-based paint has already
been reduced.... " 91 However, as detailed in the AKRF Technical Memorandum (Doc. 28), "it
was impossible to remove all of the existing paint" and thus the paint is "still present particularly
in areas such as the west deck truss and the main spans-above the deck and underneath
connections where steel plates overlap, and at riveted points.
"92
Demolition will remove these
remaining sources of lead contamination once and for all. As such, removal directly implements
the objectives of the CCMP, undermining the basis for the Agency Decision and rendering it
arbitrary and capricious. 93
c. Elimination of a Source of Floatable Debris to the Hudson River
Implements the CCMP.
Removal of the existing structure will also eliminate a source of floatable debris to the
Hudson River and therefore meets the CCMP goals of:
Preventing adverse impacts on coastal species resulting from floatables;
Preventing adverse impacts on commercial and recreational boating resulting from
floatables;
Cleaning up pollution in the estuary; and
90
See Doc. 30 (CCMP, "Management of Toxic Contamination," p. 71), Doc. 36 (Action Plan,
pp. 10, 15).
92 Id. at 31.
93
See also Doc. 11 (AKRF Response to Agency Decision, p. 3).
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Ensuring that the Harbor will be essentially free from floatable debris. 94
The removal project is upstream of the Port of New York and will dismantle and remove
deteriorating structures containing significant quantities of floatable materials before they fall
apart. 95 For example, approximately 18,000 timber piles and floatable materials within the
fender systems and maintenance docks will be removed. 96
Region 2's contention that the existing structure is not a significant source of floatable
debris now and would only become one if the existing bridge structures were left to "deteriorate
to the point where significant floatable materials are falling off and into the river" defies
common sense. 97 This removal project will prevent the existing structure from deteriorating to
the point of becoming a significant source of debris. 98 This unequivocally implements the
CCMP, which includes two programs for addressing floating debris: "1) collection of debris
already floating and 2) dismantling deteriorating structures before they fall apart and become
drift.
" 99
The CCMP recognizes that it is the "second category, called Harbor Drift," that is
composed "primarily of material from derelict shoreline structures," which provide "the majority
of floatable debris" to the Hudson River and need to be addressed by the CCMP's long-term
objectives. 100
94
See Doc. 30 (COMP); Doc. 36 (Action Plan).

See Doc. 1 (May 28, 2014 Letter from NYSEFC to U.S. EPA, p. 10).
96
See id.
97
98
See Doc. I (May 28, 2014 Letter from NYSEFC to U.S. EPA, p. 10).
99
Doc. 30 (COMP, "State of the Harbor/Bight," p. 8) (emphasis added); Doc. 30 (COMP,
"Floatable Debris," p. 184) (recognizing that the short-term plan to collect floatables needs to be
paired with a "longer term strategy to control the sources of floatable debris, preventing the
debris from entering the system"); see also Doc. 11 (AKRF Response to Agency Decision, p. 3).
'o Id. Accord Doc. 36 (Action Plan, p. 23) (finding that a "[k]ey sources of floatables" include
"decaying shoreline structures").
95
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The FEIS further undermines the Region's theory by expressly recommending

replacement of the existing structure because it "lacks the structural and service redundancy
necessary to sustain extreme natural events such as hurricanes and earthquakes, man-made
events such as fires and vessel collisions and security-related events.
" 101
As the bridge is highly
vulnerable to damage from such events, removal of the structure will prevent the certain eventual
impact of floatable materials in the Hudson River. 102 Consequently, the removal of the structure
supports and implements the objectives of the CCMP and the Agency Decision's contrary
finding is arbitrary and capricious.
2. Dredging Contaminated Sediments in the Hudson River Implements the
CCMP.
This project has two primary elements: (1) dredging an access channel for construction
barges and tugs associated with construction of the New NY Bridge and (2) removing mounds of
impacted sediments that have formed behind the piers of the existing Tappan Zee Bridge. ,03
Laboratory studies in connection with the FEIS demonstrate that these sediments are
contaminated with organics and heavy metals. 104 In particular, cadmium, copper, lead and
certain organics exceed applicable contamination thresholds. 105 Thus, dredging and removal of
these sediments will permanently remove contaminants identified as contributing to the impaired
water designation of the Lower Hudson River. Further, their removal will eliminate the potential
for resuspension into the water column or food chain, directly improving water quality. 106
101
See id. (" Introduction," 1-4).

See Doc. 11 (AKRF Response to Agency Decision, p. 4).
103
See Doc. 28 (AKRF Technical Memorandum, p. 26, 28 -31).
104 See id. at 29 -30.
105
See id.
106
See id. The dredging is also required under the conditions of the NYSDEC permit which
further effectuates the implementation of the CCMP. See also NYSDEC's Technical Guidance
102
35
As New York has demonstrated, the dredging and mound removal project will implement
numerous CCMP goals 107 including:
Restoring and maintaining an ecosystem which supports optimum diversity of living
resources on a sustained basis;
Restoring and maintaining healthy and productive Harbor/Bight ecosystem, with no
adverse ecological effects due to toxic contamination;
Eliminating toxicity and bioaccumulation impacts on living resources by reducing
contaminated sites, and managing risks to humans from seafood consumption;
Achieving a quality of sediments that supports ecological health of the estuary;
Tracking down and cleaning up other sources of chemicals of concern;
Identifying and remediating selected contaminated sediments. 108
Notwithstanding those many links to the CCMP, Region 2 rejected this project for several
improper reasons. First, the Region contends that the project will not meet the CCMP objective
of "restoring, preserving, maintaining or enhancing ecologically important habitats or an
ecosystem that supports an optimum diversity of living resources," because the sediment being
removed is not materially different from the sediments that will remain in place....
" 109
That is
factually incorrect. As detailed in the FEIS (Chapter 15, Water Resources), the upper few feet of
for Sediment Quality. See Doc. 21 (NYSDEC Permit). It is also consistent with NYSDEC's
Technical and Operational Guidance for In-Water and Riparian Management of Sediment and
Dredged Material (Doc. 15) which provides that it is appropriate to dredge Class B and C
contaminated sediments in order to enhance the quality of sediments remaining in-water.
107
the July 2, 2014 Letter from NYSEFC to US. EPA (Doc. 4), and supplemented by the AKRF
Response to Agency Decision (Doe. 11), which are incorporated by reference herein.
108
See Doc. 30 (COMP, "Management of Habitat and Living Resources," p. 21, "Management
of Toxic Contamination," p. 71, "Management of Dredged Material," p. 131); Doc. 36 (Action
Plan, pp. 10, 15, 26).
109 See Doc. 8 (Agency Decision, p. 7).
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these sediments have elevated concentrations of toxic metals, pesticides and PCBs with the
potential to affect aquatic biota and water quality on a long-term basis. 110 It is exactly those
sediments that will be removed through this project.
Relatedly, Region 2 also contends that removing sediments will not "eliminate toxicity or
bioaccumuiation impacts" because the sediments all showed contamination levels qualifying as
Class A, and thus are considered "clean."'' However, the 2012 sampling that Region 2 cites
actually involved composite samples to depths of 17 feet. Those results do not represent the
upper few feet of sediment, which provide habitat for aquatic biota. 112 Instead, the FEIS
sampling confirms that the upper few feet of sediments actually exceed Class B and C thresholds
(moderate or high contamination) including for cadmium, copper, lead and certain organics. 113
Thus, dredging and mound removal will unquestionably further the CCMP's objectives by
permanently eliminating toxic and bioaccumulation impacts on aquatic resources and reducing
sediment hot spots.'
14
Region 2 also rejected
this
project because the "dredging will remove all benthos in the
dredging area"temporarily. 115 This boils down to the contention that the Hudson River (and
its inhabitants) should be impacted by toxic sediments indefinitely, just to avoid the interim
disruption of removing them. That short-term thinking disregards multiple tenets of the CCMP,
110
See Doc. 11 (AKRF Response to Agency Decision, p. 5 -6); Doc. 17 (FEIS, Chapter 15 "Water
Resources," p. 15-12).
111
112
See Doe. 11 (AKRF Response to Agency Decision, p. 5 -6).
113
See id, See also Doc. 17 (FEIS, Chapter 15 "Water Resources," p. 15 -12).
114
See Doc. 11 (AKRF Response to Agency Decision, p. 5 -6).
11
s Doc. 8 (Agency Decision, p. 7).
37-
which aim at long-term maintenance and improvement."' Indeed, the Action Plan expressly
provides that "dredging is often the preferred means of addressing contaminated sediments
because it permanently removes those sediments from the impacted ecosystem.
" 17
Moreover,
recolonization of benthos following dredging is expected to occur within months of the

dredging. 118 As such, Region 2's position that a temporary, reversible decrease in the benthos
should preclude permanently removing a significant source of contamination to the river is
arbitrary and capricious.
Finally, Region 2 contends that the project does not implement the CCMP because the
Management of Dredged Material Chapter " 9 does not expressly identify a dredging project in
the area of the Tappan Zee Bridge. 120 That rationale fails because the chapter was never meant
to set forth an exhaustive list of potential dredging projects. Rather, it simply established the
116
For example, the CCMP, "Toxic Contamination" Chapter expressly provides that one of the
long-term objectives of the CCMP is to "restore and maintain a healthy and productive
ecosystem, with no adverse ecological effects due to toxic contamination" and thus it has the
objective of remediating contaminated sediments. Id. at p. 80 (Doc. 30).
"' Id. at 41.
1 18 See Doc. 17 (I'EIS, Chapter 18 "Construction Impacts").
19 Region 2 also contends that the Dredged Materials Chapter "as written" is invalid because
revisions to the Chapter were planned, but never made. See Doc. 8 (Agency Decision, p. 8).
While EPA's approval from March 25, 1997 notes that the Chapter "needs to be revised to
reflect recent developments," the approval of the CCMP is not conditioned on these revisions
being made. Indeed, the approval states that "I am pleased to add my approval of the CCMP and
look forward to our working together in its implementation." Doc. 31 (March 25, 1997 Letter
from . EPA Administrator Carol Browner to Governor George Pataki). Consequently, the
Chapter as written remains valid and appropriate notwithstanding Region 2's contention. In fact,
its framework for dredging in the estuary has been followed for years, and was expanded upon in
the 2011 Action Plan (Doc. 36).
38
framework for addressing contaminated sediments under the CCMP. 121 Consequently, Region 2
was required to give deference to the State's determination that the project supports this CCMP
objective. Moreover, as demonstrated above, this project furthers the objectives of numerous
other chapters and provisions of the CCMP (including the Management of Habitat and Living
Resources and Management of Toxic Contamination Chapters) and thus, independently remains
eligible for CWSRF funding. 122
3. Armoring the Hudson River Bottom Implements the CCMP.
This project involves placing two feet of armoring on the Hudson River bottom to
prevent resuspension of sediment due to prop wash from tugs that will be operating in the
channel during the construction of the new bridge. 13 Absent this project, resuspended materials
would contribute to total suspended solids loads in the lower Hudson River, impacting water
quality and aquatic biota, including aquatic v egetation. 124 The higher concentrations could
interfere with methods of feeding and/or cause habitat impairment. They could also result in
biological/physiological impacts to fish species including abrasion of gill membranes and
impacted growth rates as well as behavioral responses including impaired feeding, impaired
ability to locate predators and reduced breeding activities.
121
See Doe. 30 (CCMP, "Dredged Material," p. 134") (which provides as objectives developing
"a future dredged material management structure" that includes components to "characterize,
categories and quantify material to be dredged").
122
See Doc. 4 (July 2, 2014 Letter from NYSDFC to U.S. EPA).
123
See Doc. 28 (AKRF Technical Memorandum, p. 21 -22). The armoring project is also
required under the conditions of the NYSDEC permit which further demonstrates its
implementation of the CCMP.
124
See id.
Therefore, to briefly summarize the record, 125 the armoring project will implement
multiple CCMP goals, including:
Restoring and maintaining an ecosystem which supports an optimum diversity of
Minimizing erosion and decreasing soil and water loadings of sediment and pollutants
to the Harbor/Bight;
Managing shoreline and aquatic habitat modifications; and
Minimizing human disturbance of natural habitats. 126
Region 2 deemed this project ineligible primarily because it "is intended to mitigate
harms caused by major new construction within the estuary"the new bridge. 127 As detailed
above, that is an invalid basis for deeming a project ineligible under the CWSRF and renders the
Agency Decision arbitrary and capricious by itself.
Region 2's other three points cannot save its flawed determination. First, the Region
rejects the armoring project because it will temporarily resuspend sediments. 128 As with the
dredging and mound project discussed above, it is arbitrary for the Region to disregard the longer
term (and far broader) problems associated with resuspension during the extended construction
period in favor of lesser short-term installation concerns. That reasoning would negate funding
for any improvement to a water-body or natural habitat that required a short-term construction
impact to achieve a longer-term goal.
125
Technical Memorandum (Doc. 28), the May 28, 2014 Letter from NYSEFC to US. EPA (Doc. 1),
126
See Doc. 30 (COMP, "Management of Habitat and Living Resources," p. 21),
127
' 28 1d at p. 10.
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Second, Region 2 asserts that it will take years for the benthic habitat to be reestablished
following armoring. 129 While that contention says nothing about whether the project implements
the CCMP, it is also incorrect. Research demonstrates that the habitat will be reestablished much
more quickly, negating the Region's argument. 130
Finally, Region 2 contends that armoring will not reduce impacts on fish because they
will avoid the area where armoring has killed the underlying benthos. 131 That argument misses
the point entirely. The armoring project is not just meant to protect nearby fish, but to prevent
the transport of material downstream where it would impact other fish populations and habitat
outside the construction areas. 132 The Region's theory also contradicts the record, even with
respect to local fish impacts, which will be only temporary since the benthos will reestablish
quickly following the armoring project. 133
The armoring project squarely furthers the objectives of the CCMP including by
"decreasing soil and water loadings of sediment" downstream and "minimizing human
disturbance of natural habitats" during construction. Region 2's decision arbitrarily and
capriciously disregards the State's reasoned determination to that effect and cannot stand.
129
Id.
See Doc. 11 (AKRF Response to Agency Decision); Doc. 17 (FEIS, Chapter 18 "Construction
Impacts," pp. 18-84, 18-93).
13'
See Doc. 8 (Agency Decision, p. 10).
132
Notably, CWSRF funds have been used for similar type projects previously. Indeed, in
California, funding was provided to stabilize creek beds for the Huichica Creek Vineyards
Sustainable Agriculture Project, which purportedly was designed with similar objectives of this
project to stabilize and prevent further erosion and sediment movement. See Doc. 66 (EPA,
Funding Estuary Projects Using the Clean Water State Revolving Fund (Oct. 1998); Doc. 4 (the
July 2, 2014 Letter from !VYSEFC to US. EPA, p. 3).
133
See Doc. 11 (AKRF Response to Agency Decision); Doc. 17 (FEIS, Chapter 18 "Construction
Impacts," pp. 18-84, 18-93).
1=c
- 41 -
4. The Underwater Noise Attenuation System Project Implements the

CCMP.
An underwater noise attenuation system will be implemented to promote the health and
safety of fish during construction of the substructure of the new bridge. 134 A bubble curtain is
being considered pursuant to the FEIS and a Pile Installation and Demonstration Program
evaluation which determined that it represents one of the most innovative and effective systems
to protect underwater species. It will create a barrier in the water column, reducing pressure
wave propagation and isolating contaminants. 135 As the project will protect species in the
Hudson River to maintain and preserve their long-term health in the ecosystem, the underwater
noise attenuation system undisputedly implements the CCMP. 136 It does so by:
Preserving and restoring ecologically important habitat and open space; and
Minimizing human disturbance of natural systems. 137
Even though the project will maintain the safety and health of the underwater species in
the river, Region 2 contends that the project is ineligible because it "will not restore or maintain
ecosystems, nor will it preserve and restore" habitat and open space. 138 Contrary to several of its
arguments above, Region 2 makes this claim because the system is "designed to reduce short-
134
See Doc. 28 (AKRF Technical Memorandum, p. 23).

See id.; see also Doc. 17 (FEIS, Appendix F, Ecology: F-5A Pile Installation Demonstration
Project- Final Report, p. 48).
136
Technical Memorandum (Doc. 28), the May 28, 2014 Letter from NYSE,FC to US. EPA (Doe. 1),
137
See Doe. 30 (COMP, "Management of Habitat and Living Resources," p. 21), Doc. 36
(Action Plan, p. 26).
138
135
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term negative impacts" but will, in its view, not have any long-term beneficial effects on the
ecosystem. 139
The noise attenuation system will protect existing organisms, including the endangered
Shortnose and Atlantic Sturgeon which live in the river. Maintaining the current population will
unquestionably benefit the populations of these species long-term. The net result is that more
fish (and other species) will be alive, healthy and present in the Hudson River, which contributes
to the maintenance of these populations and improves the long-term health of the ecosystem. 140
Thus, the project will inarguably "maintain" and "preserve" the ecosystem in furtherance of the
CCMP.
5. The Oyster Bed Restoration Project Implements the CCMP.
This project involves restoring oyster beds by relocating oysters from a dredge area to an
area further west of the bridge. A second phase is also being developed in collaboration with the
Oyster Working Groupa consortium of experts organized by the NYSTA and groups involved
with oyster restoration in New York Harbor. 141 As detailed in the underlying technical
documents, 142 the relocation project will implement the CCMP and CRP goals of:
Preserving and restoring ecologically important habitat and open space; and
Implementing the Target Ecosystem Characteristics as defined by the Hudson-Raritan
Estuary Comprehensive Restoration Plan ("CRP"), which aims to "establish oyster
139
Id.
141
See id.; see also Doc. 11 (AKRF Response to Agency Decision, p. 4).
142
140
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reefs at several locations in the HRE study area" including to create "500 acres of
self-sustaining and naturally expanding oyster reef habitat in the HRE study area
across 10 to 20 sites by 2015. " 143
In fact, the relocation will increase the amount of oyster habitat by between .25 and .5
acres. 144 That is precisely what the CRP aims to accomplish when it calls for "expanding oyster
reef habitat" in the Hudson River estuary. Because EPA never disputed that fact, it lacked any
valid basis for rejecting eligibility.
Instead, Region 2 deemed this project ineligible solely because it is intended "to mitigate
harms caused by major new construction within the estuary"the new bridge.
145
As detailed
above, that is not a valid basis for deeming a project ineligible under the CWSRF. It was
arbitrary for Region 2 to second-guess New York's primary determination based solely on a
factor that cannot be considered. The record demonstrates that the oyster restoration project
undisputedly implements the CCMP. The project will result in a clear improvement to the
estuary by unequivocally increasing the amount of oyster habitat. 146 That ends any debate
regarding CWSRF eligibility.
6. The Falcon Nest Box Relocation Project Implements the CCMP.
A pair of peregrine falcons, a New York State endangered species, have been nesting on
the Tappan Zee Bridge in artificial nest boxes since 1988. To avoid the loss of this breeding
143
See Doe. 30 (CCMP, "Management of Habitat and Living Resources," p. 21), Doc. 33 (CRP,
Volume 1, Section 3.1.4, p. 55).
144
145
146
Again, Region 2 attempts to use a "netting" analysis to support its position that the relocation
is only because of the construction, but that position misses the point. The project will result in
an increase in oyster habitat even if it were appropriate to consider the net impact.
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pair, the nest boxes on the existing bridge will be replaced by nesting facilities on the new
bridge. 147
Region 2 deemed this project ineligible solely because "this activity mitigates a harm
caused by major new construction within the estuary"the new bridge. 148 However, as detailed
above, mere status as a "mitigation" measure on a construction project is not a valid basis for
deeming a project ineligible under the CWSRF. For this reason alone, the Agency Decision is
arbitrary and capricious.
The Agency Decision is separately arbitrary because the falcon nest relocation project
undisputedly
implements the CCMP and Action Plan, as the State has demonstrated.
149
Therefore, the project meets the sole CWA requirement for eligibility. For example, the
relocation project will implement the CCMP goals of:
living resources on a sustained basis; and
Preserving, managing and enhancing the estuary's vital habitat, ecological function
and biodiversity. 150
What can be more directly relevant to "preserving ... biodiversity" in this unique
ecosystem than acting to avoid the loss of a breeding pair of endangered falcons from the
estuary? Region 2 cannot (and does not) make a single argument to the contrary. Importantly,
147

149
Technical Memorandum (Doc. 28), the May 28, 2014 Letter . from NYSEFC to US. EPA (Doc. 1),
150
See Doe. 30 (CCMP, "Management of Habitat and Living Resources," p. 21), Doc. 36
(Action Plan, p. 26); (CCMP, "Management of Habitat and Living Resources," p. 21). See also
Doc. 30 (CCMP, "Public Involvement and Education," p. 241) (`Build community awareness,
appreciation, and understanding of the ecosystem and its importance").
148
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this project will not only maintain the existing habitat, but allow construction of superior habitats
for these birds. For example, the new structures will be placed in an area that minimizes human
disturbance, in further support the objectives of the CCMP. The project will also include the
installation of a box camera to record and document information on this endangered species to
advance scientific knowledge of the species and to generate greater public awareness via on-line
video feed. 151 This implements the CCMP's goals of "foster[ing] public awareness and
appreciation of the natural environment" and increasing "public access, consistent with
maintaining the Harbor/Bight ecosystem. "
152
These factors demonstrate that the project implements the objectives of the CCMP
irrespective of its construction context. As such, the Region lacks any rational basis for
invalidating this project and its decision is arbitrary and capricious.
7. The Shared Use Path Project Implements the CCMP.
The shared use path project is a bicycle/pedestrian path that will provide a scenic route
with access to the Hudson River estuary from Rockland County to Westchester County. The path
will include locations for users to rest and observe the estuary while learning about the region's
rich history and natural resources. 153 The State demonstrated 154 that this project will implement
several CCMP and CRP goals, including:
Fostering public awareness and appreciation
151
of
the natural environment;
See Doc 28 (AKRF Technical Memorandum), Doc. 1 (May 28, 2014 Letter from NYSEFC to
U.S. EPA); Doc. 4 (the July 2, 2014 Letter from NYSEFC to US. EPA); Doc. 11 (AKRF
Response to Agency Decision).
152
Doc. 30 (CCMP, "Management of Habitat and Living Resources," p. 21).
153
See Doc. 1 (May 28, 2014 Letter from NYSEFC to U.S. EPA, p. 12).
154
the July 2, 2014 Letter from NYSEFC to US. EPA (Doc. 4), and supplemented by the AKRF
-46-
Increasing public access, consistent with maintaining the I-Iarbor/Bight ecosystem;

Increasing public access consistent with other ecosystem objectives;
Maximizing public involvement in the implementation of the CCMP; and
Providing public access to the estuary with accessible routes to natural areas, enabling
them to enjoy local scenic, natural, cultural, historic and recreational resources. 155
The Agency Decision miscasts the CCMP's goals and the nature of the project. For
example, Region 2 contends that the shared use path will not provide "access to the Harbor's
waters and to the water's edge," inferring that is the only acceptable form of "public access"
contemplated by the CCMP. 156 Region 2 improperly reads the CCMP as limited to providing
public access to "the waterfront" thereby arguing that a scenic path that provides opportunities
for observation does not implement its goals. The CCMP actually aims to further "public
access" far more broadly. Indeed, the CCMP provides that public access projects can be
"improved opportunities on existing sites. " 158 This is further explained in the Action Plan, which
has a specific goal of improving "direct access to and from the water and creat(ingJ linkages to
other recreational areas," including those that provide increased opportunities for "hiking,
education or passive recreation"
(emphasis added). 159 Thus, a project (like the Shared Use
Path) that links access points to other recreational areas while providing opportunities to hike,
observe the estuary from a unique vantage point and learn about its history and benefits readily
qualifies.
155
See Doc. 30 (CCMP, "Management of Habitat and Living Resources," p. 21, "Public
Involvement and Education," p. 241); Doc. 33 (CRP, Volume 1, Section 3.5.1, p. 91) (the CRP
defines public access to include direct access to the waterfront but also "indirect access," "vistas
(e.g., scenic overlook)," and "upland access routes (e.g., pedestrian route, bike path...").
156
See Doc. 8 (Agency Decision, p. 8-9).
157 Id. at 9.
158 Id. at p. 39.
159
Doc. 36 (Action Plan, p. 31).
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Moreover, even under Region 2's improperly limited definition of "public access," a
project that promotes access to "places to walk along the water" furthers the CCMP. This
project does just that. The shared use path will offer "direct access to waterfront observation"
and opportunities to "walk along the water" in addition to providing a unique opportunity to
walk above the river itself.
160
The CCMP also contains an express goal of increasing "awareness and appreciation of
the natural environment. " 161 The shared use path separately implements this distinct purpose by
providing new opportunities to observe the estuary. Indeed, even if Region 2's limited
"waterfront" interpretation of "public access" was correct, which it is not, the shared use path
would still further the CCMP because it would promote and increase opportunities for
"awareness and appreciation" of the estuary. It will do so by providing new and "unencumbered
views" of the estuary to the north and an opportunity for views of the Hudson River and its
eastern and western banks. 162
In addition, the shared use path will implement a third CCMP objective of providing
"places close to wildlife habitat for observation.
" 163
Region 2 contends that the shared use path
will not accomplish this because parts of the path will be elevated. 16 `4 To the contrary, the path
will allow for close, unobstructed observation from a perspective that is otherwise unavailable.
160
See Doc. 11 (AKRF Response to Agency Decision

See Doc. 30 (COMP, "Management of Habitat and Living Resources," p. 21).
162
163
See Doc. 30 (CCMP, "Management of Habitat and Living Resources," p. 21; Doc. 25 (Action
Plan, p. 31).
164
See Doc. 8 (Agency Decision, p. 9).
161
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Indeed, without this project, the public using the Esposito trail and the Riverwalk could not
experience crossing the Hudson River on foot or bicycle. 165
The shared use path also implements the CCMP objective of "maximizing public
involvement in the implementation of the CCMP.
" 166
The path is being developed with public
input and coordination and further public outreach and interaction is planned as the path is
designed and developed further. 167 Accordingly, Region 2's contention that the path does not
provide an opportunity for the public to interact with program stakeholders or be involved in the
implementation of the CCMP, is unfounded and frankly, misses the point. The planning and
development of the path has and will continue to provide significant opportunity for public input
and cooperation thereby maximizing involvement as well as the related CCMP goal of fostering
public awareness and appreciation of the natural environment. Indeed, CCMP, Objective E-2 is
to "build community awareness, appreciation and understanding of the ecosystem and its
importance; and encourage action at the community level.
" 168
The shared use path
unequivocally does both.

Any one of these many bases is sufficient to support the State's determination that the
shared path furthers implementation of the goals of the CCMP. Collectively, they certainly
support such a finding. Region 2 was obligated to defer to these reasoned State's conclusions,
and its refusal to do so was arbitrary and capricious.
165

See Doe. 30 (CCMP, "Public Involvement and Education," p. 241).
167
168
Doc. 30 (CCMP, "Public Involvement and Education," p. 241).
166
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REQUEST FOR RELIEF

For the foregoing reasons, the NYSDEC and NYSEFC respectfully request that Region 2
reverse the ineligibility determinations made in the September 16, 2014 Agency Decision, deem
all of the Estuary Projects eligible for CWSRF funding and issue an amended grant agreement
covering all of the projects in full.
Dated: November 13, 2014

Respectfully submitted,
Allen. A. Kacenjar
Jessica E. DeMonte
SQUIRE PATTON BOGGS (US) LLP
30 Rockefeller Plaza, 23rd Floor

New York, New York 10112
(212) 872-9800 (Telephone)
(212) 872-9815 (Facsimile)
allen.kacenjar@squirepb.com
jessica.demonte@squirepb.eom
On behalf of the New York State Department of

Environmental Conservation and the New York State
Environmental Facilities Corporation
-50-

Appeal of 9 - 16 - 2014 Region 2 Decision PDF

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Appeal of 9 - 16 - 2014 Region 2 Decision PDF

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SEPTEMBER 16, 2014, AGENCY DECISION

BY U.S. EPA REGION 2

30 Rockefeller Plaza, 23rd Floor

The National Estuary Program................................................................................. 6

The Clean Water State Revolving Fund .................................................................. 7

The Tappan Zee Bridge Corridor Project ................................................................ 8

The Estuary Protection and Maintenance Projects ................................................ 11

Region 2's Decision............................................................................................... 13

Region 2 Exceeded Its Limited Authority by Second-Guessing New York's Funding

Region 2 Rejected Most of the Bridge Projects Using an Impermissible New

Region 2's Inconsistent Treatment of Similarly Situated Projects Further

Each of Region 2's Determinations Are Separately Arbitrary and Capricious..... 27

Removal of Existing Underwater Bridge Structures Implements the

Reduction of Sediment Scour, Deposition and Resuspension

Elimination of a Source of Lead Contamination to the Hudson

Elimination of a Source of Floatable Debris to the Hudson

Dredging Contaminated Sediments in the Hudson River Implements

Armoring the Hudson River Bottom Implements the CCMP...................39

The Underwater Noise Attenuation System Project Implements the

The Oyster Bed Restoration Project Implements the CCMP....................43

The Falcon Nest Box Relocation Project Implements the CCMP............44

The Shared Use Path Project Implements the CCMP...............................46

REQUEST FOR RELIEF ............................................................................................ ................. 50

projects from New York's intended use plan?

Did Region 2 exceed its limited statutory authority by creating an impermissible

Rep. No. 99-189, at 23 (1985) (Doc. 61).

"maintain the chemical, physical, and biological integrity of the estuary.

While they actually

CWA 320 (emphasis added).

The National Estuary Program

To facilitate its implementation, the CCMP recommended development of a

Thus, the CRP and Action Plan

support implementation of the CCMP.

The Clean Water State Revolving Fund

Hudson-Raritan Estuary Comprehensive Restoration Plan (`CRP") Volume I (2009) (Doc.

That report also commended

The Tappan Zee Bridge Corridor Project

Memorandum from Joseph Martens, Commissioner, New York State Department of

The New York Bridge: About the Project (http://www.newnybridge.com/about/index.html)

Transportation filed a Joint Application Form seeking related permits.

See 77 Fed. Reg. 65929 (Oct. 31, 2012) (Doe. 20).

The Estuary Protection and Maintenance Projects

Region 2's Decision

REGION 2 EXCEEDED ITS LIMITED AUTHORITY BY SECOND-GUESSING NEW YORK'S

Amendment I to Grant Agreement No. 36000114 (Nov. 5, 2014) (Doc. 12).

mandatory Federal requirements, policies, and practices kept to an absolute minimum.

in accordance with each State's unique needs and circumstances."

if provided for in the 320

Comprehensive Conservation Management Plans ...").

See Doc. 28 (AKRF Technical Memorandum).

REGION 2 LACKED THE AUTHORITY TO UNILATERALLY DELETE PROJECTS FROM NEW

Doe. 8 (Agency Decision, p. 2).

(Agency Decision, p. 4).

The only support Region 2 offered for this new constraint is a

one-sentence negative inference that "[t]here is no evidence in CWA 320(b)(4), 601(a)(2), or

irrespective of whether it relates to mitigation, construction or anything else. Region 2 cannot

33 U.S.C. 1330(a)(1) (emphasis added).

See, e.g., Doc. 70 (identifying examples of such non-point source projects).

Agency Decision, p. 2 (Doc. 8).

Region 2's Inconsistent Treatment of Similarly Situated Projects Further

Even if that were a permissible line to draw, EPA "must

Each of Region 2's Determinations Are Separately Arbitrary and Capricious.