New York State Drops Appeal for NNYB Loan

Governor Cuomo’s administration dropped its appeal to secure $511 million from the Clean Water for the New NY Bridge project following the the Environmental Protection Agency’s September 16 decision.

In his May 8, 2015, letter state to EPA Regional Administrator Judith A. Enck, state DEC Commissioner Joseph Martens confirmed mutual agreements. (1) The EPA will amends its decision, deeming $1.2 million for the Oyster Bed Restoration and $100,000 falcon nest box relocation eligible for Clean Water Funds, and

(2) “The DEC and EFC hereby withdraw their appeal of the Agency Decision and agree not to pursue further appeals or reviews, in either an administrative or judicial forum, of EPA’s determination of ineligibility, under the CWSRF, of the remaining projects subject to the Agency Decision,” Martens wrote.

“The environmental measures that are included in the New NY Bridge project will proceed as planned and we remain committed to building the new bridge in an environmentally responsible manner,” Thruway Acting Executive Director Robert L. Megna said in a statement.

“Pace Environmental Litigation Clinic and its clients are pleased that the Governor has dropped his administrative appeal,” its Supervising Attorney Daniel Estrin said.

EANY executive director Peter Iwanowicz praised the Cuomo administration’s decision to drop further appeals to use the funds. “This agreement follows the science and federal law,” Iwanowicz said.

The clinic looks forward to working with the state and its communities to ensure that the $480 million in clean water funds “will be appropriately put to use to improve New York’s water quality and restore its rivers,” Estrin said.

Called the decision “a big win for clean water in New York,” Riverkeeper President Paul Gallay said, “WWe are pleased that the Governor has dropped the appeal over the $480 million in proposed Clean Water Act loans that EPA had disallowed, and we thank the EPA for its role in fostering this result.”

“Riverkeeper will do its part to assure that these funds are now directed back to their lawful purpose: to improve water quality in New York and restore our rivers,” Gallay said.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2015

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

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

Report faults handling of TZ Loan loan approval

Now-familiar sight greets motorists/© Janie Rosman 2014

By MICHAEL VIRTANEN, Associated Press
Updated 3:17 pm, Thursday, November 20, 2014

ALBANY, N.Y. (AP) — A New York oversight office on Thursday criticized the way a state board approved loans for a new Tappan Zee Bridge, concluding members ignored federal concerns that led the U.S. Environmental Protection Agency to reject most of the $511 million sought.

The Environmental Facilities Corp.’s directors authorized low-interest federal clean-water funding for Gov. Andrew Cuomo‘s signature public works project in June.

The board had been directly notified by the EPA a day earlier about concerns and should have waited until federal questions were resolved, the state Authorities Budget Office said in its Thursday report. EPA Regional Administrator Judith Enck specified federal officials hadn’t approved New York’s “unconventional” approach and questioned how the construction project would improve water quality.

The Cuomo administration proposed using that money to mitigate damage to the lower Hudson River and its wildlife from building two new bridges and later demolishing the old one.

Environmental groups opposed the bridge loans, saying the EFC’s revolving fund is meant for sewer upgrades and clean water projects. They filed a complaint about the EFC board‘s actions, requesting the oversight review.

The report noted that EFC directors were initially briefed about the proposal behind closed doors last year, that their “lack of transparency” contributed to the complaint and that they didn’t open the process for public comment.

EFC spokesman Jon Sorensen said the oversight report correctly determined that the board upheld its fiduciary responsibility and protected the revolving fund’s assets but contained inaccuracies and omissions. He said staff made a detailed public presentation before the board vote and the board actually approved only half the loan amount.

The board in July formally authorized a $256 million, five-year, no-interest loan, postponing a vote on a second $256 million loan at 4 percent interest.

Cuomo is appealing the EPA’s approval of only $29 million in Tappan Zee borrowing from the environmental fund. He said the $3.9 billion bridge replacement is continuing with or without those loans. Its funding already includes a $1.6 billion low-interest federal loan.

Peter Iwanowicz, executive director of Environmental Advocates, said communities across the state are struggling to fund crumbling sewage and drinking water systems while the Cuomo administration worked secretly for a year trying to divert $500 million of that money to help fund a new bridge.

Joe Martens, the state’s conservation commissioner, said Thursday that based on the EFC staff’s legal and program analysis, he’s confident the loans are eligible and appropriate.

New York Appeals Fed’s Rejection of NNYB Loan

Aerial view of the Tappan Zee Bridge and southern Hudson Valley region/ Photo by Bruce Bennett/Getty Images

Late Thursday (yesterday), the state filed an appeal of the Environmental Protection Agency’s September 16 decision to slash funding for the New NY Bridge project. The agency will be reviewing the appeal and has 180 days to consider it.

EFC Director of Public Information Jon Sorensen said via a statement that the loan — approved by the Environmental Facilities Corporation, the NYS Thruway Authority and the Public Authorities Control Board — “will reduce project costs by up to $35 million and help keep future bridge tolls as low as possible.”

What does as low as possible mean? The project is $4 billion. That’s pennies on a $14 or $15 toll. Up to $35 million, not exactly $35 million. We’re talking pennies.

In late June, the EFC decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). And in July, three voting members of the PACB agreed to its request for half of the $511 million.

One item that was disqualified is the shared use path (a $57.1 million project). The appeal said it “will provide a scenic route . . . and will include locations for users to rest and observe the estuary while learning about the region’s rich history and natural resources.” Here’s my take: add protection from wind and sun glare for the folks who will be stopping and reading and taking in the scenery.

Then again, who am I to say?

Environmental groups also filed a lawsuit to prevent the state from using federal Clean Water Act funds — neither the recently diminished loan request nor the remaining $29 million that was approved — for the Tappan Zee Bridge project or for any such project other than their intended use.

No funds have been transferred to the Thruway Authority, and no funds will be transferred in respect to costs now under dispute with EPA.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014

Lawsuit Challenges State’s Plan for NNYB Funding

Remember last Halloween?

New York State was celebrating a $1.6 billion loan, the largest in TIFIA (Transportation Infrastructure Finance and Innovation Act) loan request history, and key financing for its bridge project.

Obama fast-tracked the TZB project/© Janie Rosman 2014

This year, environmental groups are asking a court to prevent the state from using federal Clean Water Act funds — neither the recently diminished loan request nor the remaining $29 million that was approved — for the Tappan Zee Bridge project or for any such project other than their intended use.

The lawsuit — filed in State Supreme Court in Albany County by Pace Law School’s Environmental Litigation Clinic, which represents the groups — 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.

Governor Cuomo is not named in the documents.

The Tappan Zee project was not included in the State’s CWSRF Intended Use Plan when it was finalized in February 2014. The project was added four months later with no public notice or comment, in violation of Clean Water Act requirements spelled out in EPA regulations.

Proulx said the lawsuit seeks to deny the limited percentage of funding approved “because the state failed to follow due process and blocked public access to information and participation, which is required.”

Although few eligible items, an abundance of opposition.

In late June, the state’s Environmental Facilities Corporation (EFC) decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). And in July, three voting members of the Public Authorities Control Board agreed to its request for half of the $511 million.

Emphasizing that three agencies approved the loan — most of which the EPA nixed in September — EFC Director of Public Information Jon Sorensen said the money was approved “to finance those aspects of the New NY Bridge project that will implement existing plans to protect, restore and promote the Hudson River Estuary.”

Reducing project costs by up to $35 million will “help keep future bridge tolls as low as possible,” Sorensen said. “EFC intends to vigorously defend its right to finance Clean Water Act projects that benefit the Hudson River Estuary toll payers in the state.”

“The surest way to protect this vital funding source for its intended purpose is to make sure the Court has jurisdiction to enforce the Clean Water Act as necessary,” Riverkeeper, Inc. President Paul Gallay said.

At the NNYB site/© Janie Rosman 2014

EANY executive director Peter Iwanowicz claimed the future stability of the Clean Water Act was at stake because of the need to “fight to protect the (it) from executive overreach.” Given the urgent need for funding for water infrastructure, “the Cuomo administration should be working with the EPA to develop the funding plan necessary.”

Legal costs — and why the lawsuit is being handled by neither internal lawyers nor the state Attorney General’s office — are unknown. There will be a hearing in January; the administration has a few weeks left to appeal the EPA’s September 16 decision.

“The EPA will then deliver a final decision which, we expect, will uphold the original ruling,” Proulx said. “Because of the ongoing appeal, it is still possible for terribly dangerous precedence to be set should the EPA come to an alternate conclusion.”

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014