ALBANY, N.Y. (CN) – Funds earmarked for clean water should not help New York finance the Tappan Zee Bridge’s replacement, environmentalists say in court.
Work began last fall to replace the 3-mile-long, 60-year-old Tappan Zee, an important upstate link to New York City at one of the widest points on the Hudson River near Tarrytown.
The new $3.9 billion twin-span bridge will be built next to the existing cantilever bridge, which now carries far more commuter and commercial traffic than the original design anticipated. Completion is expected by 2018.
Money earmarked for the project includes loans from the U.S. Department of Transportation and the state Environmental Facilities Corp.; bridge tolls also would help finance the work.
In September, however, the U.S. Environmental Protection Agency rejected a large chunk of the plan to tap the Clean Water State Revolving Fund for the new bridge.
Now, three environmental groups, Riverkeeper, Waterkeeper Alliance and Environmental Advocates of New York, want the Albany County Supreme Court to enforce the EPA’s rejection and preclude any future attempts to raid the Clean Water loan fund.
Inaction would set “a damaging precedent” for New York and other states “to divert their [Clean Water loan] resources to projects that have little or nothing to do with water quality, water resources, clean water infrastructure, or any other intended purposes of the CWSRF program,” a complaint the groups filed Monday states.
The Department of Environmental Conservation, the Environmental Facilities Corp., the Thruway Authority and the Public Authorities Control Board, are named as defendants, as are 18 officials and board members with those state agencies.
Gov. Andrew Cuomo announced the scheme to tap the Clean Water money in June as a “done deal,” even though “numerous legally required prerequisites to such financing” had not yet taken place, the complaint states.
In addition to formal votes by the EPA and three of the agency defendants – “purportedly independent bodies,” New York faced state and federal public notice-and-comment periods, the environmentalists say.
Clean Water loan “financing has never before been utilized or authorized in New York State, or any other state, for a transportation project such as components of the massive [Tappan Zee] construction and demolition project, because such construction projects do not enhance or improve water quality, and thus have never been considered to be substantively eligible for such funding,” their complaint says.
An EPA administrator made essentially the same point in her September letter to the heads of the Environmental Conservation Department and the Environmental Facilities Corp.
Joan Leary Matthews, director of EPA’s Region 2 Clean Water Division, wrote that seven of 12 components of the bridge project were ineligible for Clean Water loan money because they were “intended to mitigate harms caused by major new construction,” rather than protecting the Hudson River estuary that runs north from New York Harbor.
The loan program helps to finance traditional projects such as municipal wastewater-treatment plant improvement, as well as watershed protection and restoration, and estuary management, the EPA said. Matthew’s letter appears on the EPA’s Region 2 website.
Her finding discounted the bulk of the $511 million in targeted Clean Water money: $482 million.
The Environmental Facilities Corp. intended to lend the $511 million to the Thruway Authority in no- or low-interest loans. The authority operates the Tappan Zee and contracted with a consortium of design, engineering and construction firms on the replacement bridge.
Riverkeeper and the other environmental groups say they felt “compelled” to file the lawsuit because the defendants “have repeatedly and consistently maintained” that EPA approval is not required prior to closing on the loans.
That makes it “unclear to plaintiffs whether defendants intend to comply with USEPA’s recent eligibility rulings,” their complaint states.
Environmental Facilities Corp. spokesman Jon Sorensen said Tuesday that his agency “intends to vigorously defend its right to finance Clean Water Act projects that benefit the Hudson River estuary as well as the tollpayers of New York State.”
Tapping the loan fund would “reduce project costs by up to $35 million and keep future bridge tolls as low as possible,” Sorensen said in a statement.
Two years ago, the administration raised eyebrows by suggesting that tolls on the Tappan Zee might triple to $14 with a new bridge.
The environmental groups say they want the court to enjoin the defendants from pursuing a “wrongful expenditure, misappropriation, misapplication or other illegal disbursement” of Clean Water money. They also want agency decisions supporting the loan-fund raid annulled and restitution ordered for any loan-fund money already disbursed.
Daniel Estrin of the Pace Environmental Litigation Clinic in White Plains represents the plaintiffs, a group that also includes Riverkeeper president Paul Gallay.
The individual officials named as defendants are Joseph Martens, commissioner of the Department of Environmental Conservation and a member of the Environmental Facilities Corp. board; Environmental Facilities board members Howard Zucker, Cesar Perales, Francis Corcoran, Vita Demarchi and Charles Kruzansky; the EF board’s president and CEO Matthew Driscoll; Thruway Authority board members Howard Millstein, Donna Luh, E. Virgil Conway, Richard Simberg, Brandon Sall, J. Donald Rice Jr. and Jose Holguin-Veras; the thruway’s Executive Director Thomas Madison; and Public Authorities Control Board members Sheldon Silver, John DeFrancisco and Robert Megna.
Some of the defendants also serve in state government posts: Zucker is acting state health commissioner; Perales is secretary of state; Silver is speaker of the state Assembly; DeFrancisco is a state senator; and Megna is state budget director.
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