Appeal to Use Clean Water Funds and a Lawsuit to Protect Them Continue

Rebar cages near Westchester side/© Janie Rosman 2015

Rebar cages near Westchester side/© Janie Rosman 2015

While the Thruway Authority Board appeals the Environmental Protection Agency’s September 16 decision, it approved another $300,000 for legal expenses for its counsel Holland  & Knight to defend a lawsuit brought by environmental groups to challenge the state’s use of clean water funds for bridge construction.

Filed in October in State Supreme Court in Albany County by Pace Environmental Litigation Clinic, which represents the groups, the lawsuit was brought by Riverkeeper, Inc., Waterkeeper Alliance and Environmental Advocates of New York.

It names state Department of Environmental Conservation Commissioner Joseph Martens (who also chairs the facilities board) and other state leaders, and seeks “full denial of the attempted raid,” EANY Communications Director Travis Proulx said.

“The suit is important because we want to ensure the integrity of the clean water act and not constantly be fighting these types of unilateral raids,” Proulx said.

It’s important to the Thruway Authority as well: the Board voted to charge the funds to its operating budget, increasing the Maximum Amount Payable “to a new monetary cap of $450,000, and be it further,” per minutes from its March 26 meeting.

The Pace clinic’s Supervising Attorney Daniel Estrin made it clear the plaintiffs agree with the EPA’s decision that seven of the 12 projects — approximately 95 percent of the original $511 million in proposed financing — are ineligible for financing from the Clean Water State Revolving Funds (CWSRF).

In her June 2014 letter to Martens, EPA Regional Administrator Judith A. Enck requested eligibility documentation for specific bridge-related projects.

“We want to ensure that the process surrounding this decision is transparent and, given the size, scope, and seemingly unconventional approach to the use of CWSRF, that the parties involved have exercised due diligence, and carefully scrutinized the project details and considered the implications vis-à-vis the legislative purpose of the Clean Water Act,” Enck wrote.

One day after it stamped the date of receipt (June 25, 2014) on her letter, the state’s EFC decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). The following month (July), three voting members of the Public Authorities Control Board agreed to its request for half of the $511 million.

Two months later (September) EPA disallowed funding for seven of the 12 projects.

“We’re pleased that EPA has held the line with respect to the ineligibility of these projects for clean water financing, but we have a separate problem with what the state did that EPA did not raise in its September decision,” Estrin said. “In its effort to fast-track the approval process and avoid public scrutiny, the state hid the ball and deprived the public of the right to participate in the decision process guaranteed by federal and state law.”

The state’s Authorities Budget Office agreed with the groups’ process claims; its November 2014 report found the state violated the Open Meetings Law by inappropriately using executive session to discuss the project and by not discussing it in regular board meetings open to the public. The ABO further concluded the state failed to comply with federal regulations when financing was approved without required public participation.

Instead of responding to the merits of the groups’ eligibility and process arguments, the three private law firms representing various state agencies and board members filed multiple motions to dismiss.

“We’re in the process of responding to those motions,” Estrin said. That the state is spending public money to pay private law firms to defend on the case is another issue.

“They got caught with their hand in the proverbial cookie jar and continue to insist they’re entitled to the cookies. We remain confident that their continuing efforts to defend this unlawful raid will be unsuccessful,” he said.

Riverkeeper, Inc. President Paul Gallay also criticized the additional funding “when EPA has disapproved almost all of the State’s proposal and the funds in question are so desperately needed for their intended purpose — water treatment upgrades and river restoration.”

Since the state recently received “over a billion and a half (dollars) for the bridge project” from the US DOT — and it budgeted $900 million (of $1.3 billion to the Thruway Authority) for the bridge project — Gallay said it’s time to give the $500 million “into the hands of struggling municipalities for the $12.7 billion in immediate, unmet water infrastructure needs, which the state itself has acknowledged amounts to a crisis.”

“Perhaps the debacle over the CWSRF helped to highlight the need for better water and sewer infrastructure funding,” Tri-State Transportation Campaign’s Albany Legislative Advocate Nadine Lemmon said. “We agree with Environmental Advocates that this funding should become standard operating procedure in order to assure stronger and healthier downtowns.”

While the state defends the lawsuit brought by the environmental groups, it also appealed EPA’s decision to disallow most of the loans. “This is an administrative appeal and not a judicial appeal,” Estrin explained, “and a dispute decision official at EPA will review the appeal and is expected to render a written decision sometime this spring.”

Thruway Communications Director Dan Weiller declined comment.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2015

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