By Clive I. Morrick
On the front page of the April WestView issue, Publisher George Capsis joyfully reported the cancelation of the U.S. Army Corps of Engineers’ permit to build the proposed Pier 55 “Diller Island.” This note briefly explains (with much simplification) the legal decision.
In this case, the federal court confirmed that it could not substitute its own judgment for the Corps and that the Corps made two legal errors, which the court used to vacate the permit. Those errors declared: (1) that the portion of the Hudson River within Hudson River Park was not a “special aquatic site” (SAS) and (2) that the Pier 55 project was “water dependent.”
Let’s back up. In 1998, New York State created Hudson River Park, which extends from Battery Park City to 59th Street and consists of waterfront property, the Hudson River, landfill, and some piers. The River part is designated an “estuarine sanctuary,” to be managed principally, but not exclusively, for the preservation of marine resources. The Hudson River Park Trust and the New York State Department of Environmental Conservation (DEC) share the management of that sanctuary. (The River occupies 400 of the Park’s 550 acres.)
In February 2015, the Trust applied to the Corps for a modified permit to pour concrete into tubular piles in the River to support a new pier; the pier would function as green space and as an entertainment venue. (There was already a permit to rebuild the adjacent Pier 54.)
Why is the Army involved? Well, a layperson would correctly assume that you cannot put a pier resting on concrete pylons in the Hudson River without a permit. The federal Clean Water Act (CWA) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material into navigable waters “after notice and opportunity for public hearings.”
First, the Corps had to decide if the estuarine sanctuary was a “special aquatic site.” Federal regulations require management of an SAS to be for the preservation of the River’s ecosystem. The opponents of the proposal (The City Club of New York) asserted that it was.
Second, the Corps had to decide if the project’s “basic purpose” was “water dependent.” An action is water dependent if it requires access or proximity to, or a location on, water in order to fulfill its basic purpose (e.g., a boat launch). If the river is an SAS, and the project is not water dependent, there is a presumption that the project can be located elsewhere with less adverse impact on the aquatic ecosystem.
The Corps decided that the sanctuary’s design was to serve four Park purposes—“resource protection, public access and recreation, education, and research activities”—rather than principally the preservation of marine resources, and so was not an SAS. Next, the Corps decided that the project was water dependent (i.e., “it required access to or siting in water”). On April 25, 2016, the Corps issued the modified permit.
The opponents went to federal court and argued that the permit violated the CWA. The court agreed. Under EPA guidelines, the sanctuary was an SAS. Further, the project’s basic purpose was to provide additional public park and performance space. There was no mention of a pier in the Trust’s own stated purpose. This fundamental goal was not water dependent, even if the Trust preferred to build such space on a pier.
The Corps failed to apply the required presumptions regarding the availability and environmental effects of practicable alternative sitings. Therefore, its decision was arbitrary and contrary to law and the court was empowered to overrule it.
(The judge was Honorable Lorna G. Schofield, who was appointed in late 2012. Prior to that, she served as a federal prosecutor and a 20-year partner in a “Wall Street” law firm.)