By Michael S. Bogin and SPR Summer Associate Aaron Aber 

Connecticut and New York will file final briefs this summer in an ongoing dispute before the Eastern District of New York, regarding the legality of the U.S. EPA’s decision to designate a site in the Long Island Sound for disposal of navigational dredge material. The proposed 1.3-square nautical mile site is between Waterford and New London, Connecticut, and Fishers Island, New York. It sits mostly in Connecticut’s waters but only one thousand feet from the New York boundary in a sensitive area of Long Island Sound. New York claims that EPA’s designation of the site pursuant to the Ocean Dumping Act violated the Administrative Procedure Act, and that allowing dumping in this area would harm wildlife in the Long Island Sound. EPA and Connecticut – which intervened as a defendant – disagree, and Connecticut recently moved for summary judgment dismissing the suit.

The Ocean Dumping Act extends the protections of the Clean Water Act to ocean discharges, including in the estuarine Long Island Sound. Dumping in areas covered by the Ocean Dumping Act requires a permit from the Army Corps of Engineers and can only occur in areas designated by EPA or the Army Corps. Designation must also comply with the requirements of the Coastal Zone Management Act, which requires a finding that a proposed action is consistent with a state’s Coastal Management Program. EPA decided the action was consistent with New York’s Coastal Management Program over New York’s objections.

In its complaint, New York alleges EPA selected this site without regard for the Ocean Dumping Act criteria for designating disposal locations. The Act lists nine criteria that EPA must consider when selecting a site for dumping dredged material, including: (1) the need for a dumping site; (2) whether the site has historically been used for dumping (to minimize the number of dumping sites); (3) whether dumping in the site would interfere with other activities; (4) human health impacts; and (5) impacts on marine ecosystems. New York alleges EPA acted arbitrarily and capriciously in considering these factors, and that New York would be harmed by the site because contaminants in dumped sediment could bioaccumulate in wildlife that enter New York waters. Connecticut and EPA disagree, asserting dumping at the site is “environmentally safe” and that the site is necessary to provide the capacity for Connecticut’s dredge material.

According to its environmental impact statement for the project, EPA designated this site in order to accommodate dredge material capacity in the region, create a long-term disposal site, and allow for dredging to “maintain safe navigation and marine commerce.” Connecticut’s memorandum of law in support of its summary judgment motion notes that the state’s navigation-dependent industries rely on maintenance dredging of channels, ports, and rivers to ensure safe navigation and transport of goods. Connecticut argued, based on economic studies and public comments related to the site, that more than $1.6 billion in economic activity relies on its ability to dredge waterways to enhance navigation.

EPA initially considered three alternatives to the site: an “active open-water dredged material disposal site” south of Goshen Point, Connecticut, a historic dumping site south of Niantic Bay, and an active dumping site south of Cornfield Point in Old Saybrook, Connecticut. EPA has stated that it selected the Eastern Long Island Disposal Site because it is a containment site “where dredged material would remain on the seafloor.” Additionally, because Connecticut would have the most need for the site over the next three decades, the site sits mostly in Connecticut’s waters.

Finding placement for dredge spoil is a challenge in the region, given the abundance of navigation channels and berthing areas requiring maintenance dredging, and the limited places to dispose of material.  Upland disposal can cost many times what ocean disposal does, even accounting for the time and expense involved with the sampling and analysis of material before ocean dumping is permitted.

The case will come to a head this summer; the summary judgment is scheduled to be fully briefed by August 8.