Yesterday, Riverkeeper submitted a Notice of Intent to Sue (NOIS) the New York State Thruway Authority, Tappan Zee Constructors and one of its contractors under the Clean Water Act for violating two key conditions of the Thruway Authority’s Section 401 Water Quality Certification, issued by the New York State Department of Environmental Conservation for construction of the replacement bridges. Riverkeeper is represented in this action by the Pace Law School Environmental Litigation Clinic.
Riverkeeper has been actively monitoring the construction project and periodically meeting with Thruway officials since joining with partner organization Scenic Hudson in a settlement agreement with the state in March 2013. At that time, all parties agreed on a final 401 Certification that contained strict requirements for protecting the Hudson River during dredging and construction, and Riverkeeper reserved the right to enforce the terms of the permit if it found violations.
After dredging began on August 1, Riverkeeper observed the dredge crane operators on numerous occasions raising the full dredge bucket from the river, then pausing it and allowing large volumes of turbid water and sediment to drain from the bucket directly into the river before placing the dredge material into the barge. This is a violation of the permit, which requires the dredge to operate “in a continuous motion” between the river and the barge, in order to minimize the discharge of water and sediment back into the river. “Decanting” the dredge bucket in this manner affects water quality and aquatic life in the river by increasing turbidity and re-suspending contaminated sediment in the water column, exactly what the permit requirement is intended to prevent.
In addition, Riverkeeper learned that the Thruway Authority was unable to complete its underwater monitoring system for endangered sturgeon prior to the beginning of dredging on August 1, a clear violation of Permit Condition 40, which mandates that an “operational capable array of stationary receivers” is in place prior to the commencement of dredging. Active underwater monitoring for the presence of sturgeon near the construction project is a critical element of the permit, because it enables the state and federal fisheries monitors to track the numbers of sturgeon in the area that may be affected by dredging and pile driving and to see how well they are able to avoid dangerous activity and areas.
Riverkeeper alerted the Thruway to the dredging violations on three separate occasions in August and September, and Riverkeeper and Scenic Hudson met with state officials to discuss the dredging concerns and status of sturgeon monitoring. Since its last meeting on September 10, Riverkeeper has noticed an improvement in the dredging operations, but the sturgeon monitoring is still not fully operational. The NOIS is being filed to make a public record of both past and ongoing violations and to compel full compliance with these permit conditions.
“Riverkeeper assured the public that we would watchdog this project, and that’s exactly what we’re doing by filing this notice with the state,” said Phillip Musegaas, Hudson River Program Director at Riverkeeper . “ We have seen improvement in the dredging operations and we’re hopeful that this will continue, but in the end it is unacceptable that dredging protocols required by the permit were not strictly followed. We also remain very concerned about the state’s failure to have the sturgeon monitoring up and running before dredging began. We are committed to working with the state to resolve these issues as soon as possible – the Hudson River merits the highest degree of environmental protection we can give it.”
Professor Karl Coplan, Co-Director of the Pace Environmental Litigation Clinic, explained that, “ Riverkeeper’s acceptance of the Tappan Zee Bridge project was premised on strict compliance with the environmental conditions contained in the State’s Clean Water Act certification of the project. The Clean Water Act mandates strict compliance with these conditions and provides for citizen enforcement to ensure compliance. That’s why we stand ready to enforce the permit as written, if necessary.”
While not a party to the legal action, Scenic Hudson affirmed its commitment to ensuring compliance with the provisions of our settlement and the construction permit. Steve Rosenberg, Senior Vice President of Scenic Hudson , said, “ Scenic Hudson is pleased that dredging operations have improved since we and Riverkeeper met with state officials to discuss our concerns. We will continue to press for continuous permit compliance and comprehensive sturgeon monitoring as soon as possible. And we’ll continue to monitor the project to ensure protection of the health of the River. ”
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Press Release, September 26, 2013