By Michael Gruen

Resistance to Diller Island (Pier 55) has come from some key figures in the famed City Club of New York (they helped to save Grand Central Station). Here, the President of the Club, Michael Gruen, returns to the original charter of the Hudson River Park, which calls for the assiduous preservation of the natural life of the Hudson estuary. He argues that a 2.7-acre concrete island suspended above the breeding and feeding grounds of local aquatic life would alter and diminish them.

The Hudson River Park Trust and Pier55 Inc. have definitively withdrawn their appeal from the decision of Judge Lorna Schofield’s decision (March 23, 2017), voiding the Army Corps of Engineers’ permit for construction of Pier 55. While that does not end the battle over Pier 55, it does dramatically change the battlefield.

Judge Schofield ruled that the New York State Legislature’s designation of the water section of the Park as an “estuarine sanctuary” is not empty verbiage, as the Trust and Pier55 have argued, but a solemn dedication imposing on the Trust a duty to treat and manage the water section as, above all, a conservation area for the preservation and use of fish and wildlife resources. Withdrawal of the appeal makes the Judge’s determination the definitive law of the case. Her reasoning is impeccable, so the Trust would presumably feel obligated to comply with it in future actions it takes with respect to the water section. A primary consideration in future actions should be whether the action will, to any extent, impair the use of the water section for conservation purposes.

Judge Schofield further ruled that the area’s status as an “estuarine sanctuary” also establishes it as a “special aquatic site” under the Federal Clean Water Act. Such a site is entitled to heightened protection under that Act.

The Army Corps of Engineers did issue a new permit on May 30th based on the Trust having changed plans for the island to use precast concrete pilings rather than hollow pilings filled, after having been driven with flowable concrete. On that basis, the Corps ruled that the project does not involve “fill,” and that, in the absence of “fill,” the Corps has no authority to stop the project under the Clean Water Act. Plaintiffs intend to challenge that ruling if the project goes forward. At this time, the project appears to be in abeyance.

Plaintiffs in the series of cases concerning Pier55 are The City Club of New York, Tom Fox, and Rob Buchanan. They are represented by Emery, Celli, Brinckerhoff & Abady, LLP.

The City Club of New York is an independent nonprofit organization based in New York, which is devoted to civic advocacy. Its members have advocated for New Yorkers on various issues including, most recently, preventing the construction of a shopping mall in Flushing Meadows Corona Park and down-sizing the up-zoning of East Midtown.

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