Petition for Writ of Certiorari — Town of Southold, New York, Petitioner v. Rossana Rosado, New York State Secretary of State, et al.
Supreme Court briefFeb 15, 2023
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APPENDIX
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Appendix A Mandate Judgment with Order of
the United States Court of Appeals for the
Second Circuit, dated November 28, 2022
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 2nd day of September,
two thousand twenty-two,
Before:
Debra Ann Livingston,
Chief Judge,
Susan L. Carney,
Joseph F. Bianco,
Circuit Judges.
____________________________________
Town of Southold,
Plaintiff-Intervenor-Appellant,
Rossana Rosado, in her official capacity
as New York State Secretary of State,
Basil Seggos, in his official capacity as
Commissioner of the New York State
Department of Environmental
Conservation, State of New York,
Plaintiffs - Appellants,
MANDATE ISSUED ON 11/28/2022
JUDGMENT
Docket Nos.
20-3188(L),
20-3189(CON)
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County of Suffolk,
v.
Plaintiff - Intervenor,
Andrew Wheeler, in his official capacity
as Administrator of the United States
Environmental Protection
of the United States Environmental
Protection Agency, United States
Environmental Protection Agency,
Dennis Deziel, in his official capacity
as Regional Administrator of United
States Environmental Protection
Agency Region 1,
Defendants - Appellees,
Connecticut Department of Energy and
Environmental Protection,
Defendant - Intervenor - Appellee.
____________________________________
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The appeals in the above captioned case from a
judgment of the United States District Court for the
Eastern District of New York were argued on the
district court’s record and the parties’ briefs. Upon
consideration thereof,
IT IS HEREBY ORDERED, ADJUDGED and
DECREED that the judgment of the district court is
AFFIRMED.
For the Court:
Catherine O’Hagan Wolfe,
Clerk of Court
A True Copy
Catherine O’Hagan Wolfe Clerk
United States Court of Appeals, Second Circuit
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20-3188 (L)
Town of Southold, et al. v. Wheeler, et al.
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
August Term 2021
(Argued: Friday, December 10, 2021
Decided: September 2, 2022)
Nos. 20-3188, 20-3189
TOWN OF SOUTHOLD,
Plaintiff-Intervenor-Appellant,
ROSSANA ROSADO, in her official capacity as New
York State Secretary of State, BASIL SEGGOS, in his
official capacity as Commissioner of the New York
State Department of Environmental Conservation,
STATE OF NEW YORK,
Plaintiffs-Appellants,
COUNTY OF SUFFOLK,
Plaintiff-Intervenor,
-v.ANDREW WHEELER, in his official capacity as
Administrator of the United States Environmental
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Protection Agency,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, DENNIS DEZIEL, in his
official capacity as Regional Administrator of United
States Environmental Protection Agency Region 1,
Defendants-Appellees,
CONNECTICUT DEPARTMENT OF ENERGY AND
ENVIRONMENTAL PROTECTION,
Defendant-Intervenor-Appellee. 1
____________________________
Before: LIVINGSTON, Chief Judge, and CARNEY
and BIANCO, Circuit Judges.
This dispute arises out of the efforts of the
federal Environmental Protection Agency (“EPA”) to
designate a new waste disposal site on Long Island
Sound for byproducts of local dredging activities. New
York State and the Town of Southold, New York
(“Southold,” and together with New York, the
“Plaintiffs-Appellants”)
challenged
the
EPA’s
designation of the site pursuant to the Administrative
Procedure Act (“APA”), alleging, inter alia, violation
of the Coastal Zone Management Act (“CZMA”). They
now appeal from a July 20, 2020, judgment of the
United States District Court for the Eastern District
of New York (Korman, J.), granting DefendantsAppellees EPA and the Connecticut Department of
The Clerk of Court is directed to amend the official caption as
set forth above.
1
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Energy and Environmental Protection’s cross-motions
for summary judgment.
For the reasons set forth below, we hold,
contrary to Plaintiffs-Appellants’ claim, that the
APA’s arbitrary-and-capricious standard of review
applies and that under that standard, the EPA’s
designation of the new disposal site passes muster
under the CZMA. We also hold that Southold’s claim
under the National Environmental Protection Act is
not properly before us. Accordingly, the judgment of
the district court is AFFIRMED.
For PLAINTIFFINTERVENORAPPELLANT:
For PLAINTIFFSAPPELLANTS:
For DEFENDANTSAPPELLEES:
SCOTT KREPPEIN,
Devitt Spellman
Barrett, LLP, Smithtown,
NY.
ERIC DEL POZO,
Assistant Solicitor
General (Barbara D.
Underwood,
Solicitor General, and
Anisha S. Dasgupta,
Deputy Solicitor General,
on the brief), for Letitia
James, Attorney General of
the State of New York,
New York, NY.
SEAN P. GREENEDELGADO,
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Assistant United States
Attorney (Varuni Nelson
and Matthew Silverman,
Assistant United States
Attorneys, on the
brief), for Mark J. Lesko,
Acting United States
Attorney for the Eastern
District of New
York, New York, NY.
For DEFENDANTINTERVENORAPPELLEE:
For AMICI CURIAE:
ROBERT D. SNOOK,
Assistant Attorney General
(Clare Kindall, Solicitor
General, on the brief), for
William Tong, Attorney
General of the State of
Connecticut, Hartford, CT.
Linda L. Morkan,
Robinson & Cole LLP,
Hartford, CT, for The
Connecticut Port
Authority, Connecticut
Marine Trades Association,
Connecticut Maritime
Coalition, Cross Sound
Ferry Services, Inc.,
Electric Boat Corporation,
Lower Connecticut River
Valley Council of
Governments, Connecticut
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Metropolitan Council of
Governments, New Haven
Port Authority,
Southeastern Connecticut
Council of Governments,
South Central Regional
Council of Governments,
Western Connecticut
Council of Governments, as
amici curiae in support of
Defendants- Appellees.
DEBRA ANN LIVINGSTON, Chief Judge:
Along the northern edge of “that slender riotous
island which extends itself due east of New York,” the
aptly named Long Island, lies “the most domesticated
body of salt water in the Western hemisphere, the
great wet barnyard of Long Island Sound.” F. SCOTT
FITZGERALD, THE GREAT GATSBY 4–5 (Scribner
2004) (1925). This appeal concerns the efforts of the
federal Environmental Protection Agency (“EPA”) to
designate a new waste disposal site in the Sound—a
site for the byproducts of dredging activities
undertaken to maintain and improve the Sound’s
shipping channels and ports, as well as support
coastal businesses and other private parties.
The Coastal Zone Management Act (“CZMA”)
encourages states to develop programs to manage
their coastal areas and requires federal activities that
affect these areas to be “consistent to the maximum
extent practicable with the enforceable policies” of
each state’s program. 16 U.S.C. § 1456(c)(1)(A).
Regulations implementing the CZMA, in turn, have
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interpreted
that
phrase
to
require
“full[]
consisten[cy]” with state programs. 15 C.F.R. §
930.32(a)(1). Under these provisions, New York State
formally objected to the EPA’s proposed activity,
asserting that the designation of the new dredging
site would not be fully consistent with its coastal
management program and an analogous program
developed by the Town of Southold, New York
(“Southold,” and together with New York, the
“Plaintiffs-Appellants”). Responding to the objections,
the EPA reiterated its conclusion that the designation
would, in fact, be fully consistent with PlaintiffsAppellants’ coastal management programs. After a
lengthy dialogue in which New York refused to
withdraw its objections, the EPA opted to proceed
with the new site designation without New York’s
assent.
New York then sued in the United States
District Court for the Eastern District of New York
under the Administrative Procedure Act (“APA”),
alleging that the agency’s designation violates the
Marine Protection, Research and Sanctuaries Act of
1972, 33 U.S.C. § 1411, (“MPRSA”) and the CZMA.
Southold and the Connecticut Department of Energy
and Environmental Protection (“Connecticut,” and
together
with
EPA,
“Defendants-Appellees”)
intervened on behalf of New York and the EPA,
respectively, and the parties cross-moved for
summary judgment. The district court (Korman, J.)
granted Defendants-Appellees’ motions. See Rosado v.
Wheeler, 473 F. Supp. 3d 115 (E.D.N.Y. 2020). These
appeals followed.
New York principally argues that the district
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court erred in applying the APA’s deferential
arbitrary-and-capricious standard for judicial review
to its CZMA claim. 2 For the reasons set forth below,
we reject that argument. And applying the arbitraryand-capricious standard, we conclude that the district
court properly granted Defendants-Appellees’ crossmotions for summary judgment on the CZMA claims
because the EPA adequately justified its consistency
determination. We also conclude that Southold
waived its claim that the EPA’s designation of the
new site violates the National Environmental
Protection Act (“NEPA”). We therefore affirm the
judgment of the district court.
I.
A.
BACKGROUND
Legal Background
Congress enacted the CZMA in 1972 to further
the “national interest in the effective management,
beneficial use, protection, and development of the
coastal zone.” 16 U.S.C. § 1451(a). The coastal zone is
defined as “the coastal waters (including the lands
therein and thereunder) and the adjacent shorelands .
. . in proximity to the shorelines of the several coastal
states.” 3 Id. § 1453(1). Recognizing that then-existing
“state and local institutional arrangements for
planning and regulating land and water uses” in the
coastal zone were “inadequate,” id. § 1451(h), the Act
2 New York does not challenge the district court’s dismissal of its
MPRSA claims on appeal and has thus abandoned them. See
Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290,
294 (2d Cir. 2008).
The term “coastal waters” includes “sounds,” and the term
“coastal states” includes any state bordering Long Island Sound.
16 U.S.C. § 1453(3)–(4).
3
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sought “to encourage the states to exercise their full
authority over the lands and waters in the coastal
zone,” id. § 1451(i).
To advance this objective, the CZMA gives
states a key role in environmental regulation by
allowing them to develop their own coastal zone
management programs, which are subject to federal
approval by the National Oceanic and Atmospheric
Administration (“NOAA”) in the Department of
Commerce. See id. § 1455(d). Coastal zone
management programs include “comprehensive
statement[s] . . . prepared and adopted by the state in
accordance with the provisions of [the CZMA], setting
forth objectives, policies, and standards to guide
public and private uses of lands and waters in the
coastal zone.” Id. § 1453(12).
Once a state’s program has been approved by
NOAA, “[e]ach Federal agency activity . . . that affects
. . . the coastal zone” is required to “be carried out in
a manner which is consistent to the maximum
extent practicable with the enforceable policies of
approved State management programs.” Id. §
1456(c)(1)(A); see also 15 C.F.R. § 930.36(e)(2). NOAA
regulations define “consistent to the maximum extent
practicable” to mean “fully consistent with the
enforceable policies of management programs unless
full consistency is prohibited by existing law
applicable to the Federal agency.” 15 C.F.R. §
930.32(a)(1). The policies enumerated in a state’s
coastal management program need not be
particularly detailed. NOAA regulations explain:
An enforceable policy [in a State’s
coastal management program] shall contain
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standards of sufficient specificity to guide
public and private uses. Enforceable policies
need not establish detailed criteria such that
a proponent of an activity could determine the
consistency of an activity without interaction
with the State agency. State agencies may
identify management measures which are
based on enforceable policies, and, if
implemented, would allow the activity to be
conducted consistent with the enforceable
policies of the program.
Id. § 930.11(h).
A federal agency proposing to undertake an
activity that affects a state’s coastal zone must send
the state a determination of whether the activity is
consistent with the policies contained in the state’s
coastal management program “no . . . later than 90
days before final approval of the Federal activity.” 16
U.S.C. § 1456(c)(1)(C); see also 15 C.F.R. §
930.36(b)(1). The state may then concur with or object
to the federal agency’s consistency determination. 16
U.S.C. § 1456(c)(3)(A).
Regulations issued by NOAA set forth a limited
process for resolving a consistency dispute between a
state and federal agency:
In the event of an objection [to the Federal
agency’s consistency determination by a State
agency], Federal and State agencies should
use the remaining portion of the 90-day notice
period (see § 930.36(b)) to attempt to resolve
their differences. If resolution has not been
reached at the end of the 90-day period,
Federal agencies should consider using the
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dispute resolution mechanisms of this part
and postponing final federal action until the
problems have been resolved. At the end of the
90-day period the Federal agency shall not
proceed with the activity over a State agency’s
objection unless:
(1) the Federal agency has concluded
that under the “consistent to the
maximum
extent
practicable”
standard described in section 930.32
consistency with the enforceable
policies of the management program is
prohibited by existing law applicable
to the Federal agency and the Federal
agency has clearly described, in
writing, to the State agency the legal
impediments to full consistency (See §§
930.32(a) and 930.39(a)), or
(2) the
Federal
agency
has
concluded that its proposed action is
fully consistent with the enforceable
policies of the management program,
though the State agency objects.
C.F.R. § 930.43(d) (emphasis added). If the federal
agency ultimately decides to proceed with the activity
to which the state objects, the federal agency “shall
notify the State agency of its decision to proceed
before the project commences.” Id.§ 930.43(e).
NOAA
regulations
“describe
mediation
procedures which Federal and State agencies may use
to attempt to resolve serious disagreements which
arise during the administration of approved
management programs.” Id. § 930.110; see also id. §
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930.44 (“In the event of a serious disagreement
between a Federal agency and a State agency
regarding the consistency of a proposed federal
activity affecting any coastal use or resource, either
party may request the . . . mediation services
provided for in [15 C.F.R. § 930.110, et seq.]”). The
regulations contemplate two avenues of mediation:
informal mediation by NOAA’s Office of Ocean and
Coastal Resource Management, see id. § 930.111, and
formal mediation by the Secretary of Commerce (the
“Secretary”), see id. § 930.112. A state or federal
agency can decline the Secretary’s invitation to engage
in mediation, see id. § 930.112(b), or unilaterally
withdraw from mediation at any point, see id. §
930.115(b). And state and federal agencies need not
exhaust the mediation process described above to
seek judicial review. NOAA regulations provide:
The availability of the mediation services
provided in this subpart is not intended
expressly or implicitly to limit the parties’ use
of alternate forums to resolve disputes.
Specifically, judicial review where otherwise
available by law may be sought by any party
to a serious disagreement without first having
exhausted the mediation process provided for
in this subpart.
Id. § 930.116.
Finally, the CZMA provides that the President of the
United States may exempt a federal agency from the
requirement that its actions be consistent with a
state’s coastal management program.
After any final judgment, decree, or order of
any Federal court that is appealable under
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section 1291 or 1292 of title 28, or under any
other applicable provision of Federal law, that
a specific Federal agency activity is not in
compliance with subparagraph (A), and
certification by the Secretary that mediation
under subsection (h) is not likely to result in
such compliance, the President may, upon
written request from the Secretary, exempt
from compliance those elements of the Federal
agency activity that are found by the Federal
court to be inconsistent with an approved
State program, if the President determines
that the activity is in the paramount interest
of the United States.
15 U. S.C. § 1456(c)(1)(B) (emphasis added).
B. Factual Background
Dredging involves the excavation of materials that
accumulate on the ocean floor over time. Periodic
dredging is essential for the maintenance and
improvement of coastal navigation infrastructure,
including channels, navigable rivers, harbors, and
marinas. Some dredged materials, considered
“beneficial,” can be used to replenish beach sand,
construct wetlands, and cap landfills. Others,
however, cannot be put to beneficial use and must be
disposed of in open waters. Such open-water disposal
is often controversial because dredged materials
“may be contaminated by municipal or industrial
wastes or by runoff from terrestrial sources such as
agricultural lands.” 40 C.F.R. § 227.13(a).
Long Island Sound is a 110-mile-long tidal estuary
that lies between New York, Connecticut, and Rhode
Island. The Sound is bounded by the Atlantic Ocean
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to the east and the East River tidal strait to the west,
and the border between Connecticut and New York
runs from east to west through the center of the Sound.
Over 200 harbors, coves, bays, and navigable rivers
around the Sound require periodic dredging. The
Army Corps of Engineers (the “Corps”) is responsible
for fifty-two maintenance and improvement projects
in the Sound and adjacent waters, and many other
federal and non-federal projects in the area maintain
and improve marinas, boat yards, and coastal
businesses.
New York submitted a coastal management
program to NOAA in August 1982. 4 NOAA approved
that program, thus “activat[ing] Federal agency
responsibility for being consistent with” its policies.
Approval of the New York Coastal Zone Management
Program, 47 Fed. Reg. 47,056, 47,056 (Oct. 22, 1982).
Two components of New York’s coastal management
program are relevant to this appeal: the Long Island
Sound Coastal Management Program, which New
York authored in 2002 (the “New York Program”),
and the Town of Southold Local Waterfront
Revitalization Program, which was adopted by the
Town of Southold, New York, in 2005 (the “Southold
Program”) and was “formally approved and
incorporated into [the New York Program].” Joint
App’x 3107.
1. The Western and Central Sites
4 See
NEW YORK STATE COASTAL MANAGEMENT
PROGRAM
AND FINAL ENVIRONMENTAL IMPACT
STATEMENT 4,
https://dos.ny.gov/system/files/documents/2021/04/ny_cmp_dec20
20_w- bookmarks_working_topost.pdf.
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While this dispute concerns the EPA’s designation
of a dredged material disposal site in the eastern
portion of Long Island Sound, there are existing
designated sites in the Sound’s western and central
portions that we refer to, respectively, as the “Western
Site” and the “Central Site.” The EPA first published a
Notice of Intent to consider designating dredged
material disposal sites in the Sound’s waters in 1999.
See Designation of Dredged Material Disposal Sites in
Long Island Sound, Connecticut and New York, 64
Fed. Reg. 29,865, 29,865 (June 3, 1999). Four years
later, the EPA published a proposed rule seeking to
designate the Western and Central Sites. See
Proposed Designation of Dredged Material Disposal
Sites in the Central and Western Portions of Long
Island Sound, CT, 68 Fed. Reg. 53,687, 53,687 (Sept.
12, 2003). New York initially objected to the EPA’s
determination that the Western and Central Site
designations would be consistent with the New York
Program, as required under the CZMA. After a period
of negotiation, however, the state and the agency
agreed to a set of site use restrictions that would
“apply to all federal projects, and non-federal projects
generating more than 25,000 cubic yards of dredged
material” but would “not apply to smaller non-federal
projects.” Designation of Dredged Material Disposal
Sites in Central and Western Long Island Sound, CT,
70 Fed. Reg. 32,498, 32,511 (June 3, 2005).
As relevant here, the restrictions contemplated
that the Corps would develop a Dredged Materials
Management Plan (“DMMP”) for the Sound, a
“comprehensive stud[y] carried out by the [Corps], in
consultation with the EPA and the affected states, to
help manage dredged material in a cost-effective and
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environmentally acceptable manner.” Id. The EPA
agreed that the DMMP for the Sound would address
the Sound’s future dredging needs and the
“development of procedures and standards for the use
of practicable alternatives to open-water disposal” of
dredged material “to reduce [it] wherever
practicable.” Id. Once an agreement was in place as to
the proposed restrictions, New York withdrew its
objection and concurred with the EPA’s conclusion
that the agency’s designation of the Central and
Western Sites would be consistent with the New York
Program. The EPA published a final rule in June
2005 that designated the Western and Central Sites
and incorporated New York’s restrictions. Id. at
32,498, 32,511.
Over a decade later, in December 2015, the Corps
completed the DMMP. The DMMP “examine[s]
possible alternatives to open water placement of
dredged material in Long Island Sound and
compare[s] the costs and benefits of such alternatives
with . . . current practice.” Joint App’x 4002. It aims
“to provide a 30 year management strategy to add
certainty to dredging and placement activities . . .
within the Region in an environmentally acceptable
and economically practicable manner.” Id. at 4084.
The DMMP estimates that federal, state, local, and
private dredging activities in the Sound will generate
roughly 53 million cubic yards of dredged material
over the 30-year period from 2015 through 2045,
approximately 34 million of which will be fine-grained
materials suitable for open-water disposal. It notes,
however, that “only a portion” of the dredged
materials will “likely . . . be dredged in that period, as
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future actions are contingent on Federal and nonFederal budget decisions.” Id. at 3952.
2. The Eastern Site
Before the designation of the dredged material
disposal site at issue here, no long-term disposal site
existed in the eastern portion of the Sound. Two
preexisting disposal sites in the eastern Sound—the
New London Disposal Site (the “New London Site”)
and the Cornfield Shoals Disposal Site (the “Cornfield
Shoals Site”)—had been authorized only for
temporary use and were scheduled to close in
December 2016. 5 In 2012, the EPA began exploring
whether a new long- term disposal site should be
designated to service the eastern Sound.
After screening eleven potential sites and a “no
action alternative,” the EPA proposed designating a
disposal site in the eastern Sound (the “Eastern
Site”). Designation of a Dredged Material Disposal
Site in Eastern Region of Long Island Sound;
Connecticut, 81 Fed. Reg. 24,748, 24,761 (Apr. 27,
2016). The Eastern Site would comprise the western
half of the existing New London Site and two new
adjacent areas to its west. The agency proposed that
the Eastern Site would be governed by the same site
use restrictions that it had agreed to with respect to
the Western and Central Sites. When New York
expressed concern to the EPA about the Eastern Site,
the agency asked the Corps to examine the dredged
5
The New London and Cornfield Shoals Sites were initially set
to close in December 2011, but Congress extended the deadline
to December 2016 so that the EPA had additional time to
evaluate whether to designate a long-term disposal site in the
Sound’s eastern portion.
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material disposal needs of the eastern portion of the
Sound in greater detail. In response, the Corps
revised the DMMP, estimating the need for openwater disposal capacity in the eastern Sound over the
next thirty years to be 20.2 million cubic yards.
In July 2016, the EPA submitted a consistency
determination pursuant to the CZMA, asserting that
the Eastern Site designation would be fully consistent
with the enforceable policies of the New York and
Southold Programs. New York disagreed and formally
objected to the agency’s consistency determination in
October 2016. It argued that the Eastern Site
designation would be inconsistent with the New York
Program and with Policies 5 (water quality), 6
(ecosystem
protection),
8
(hazardous
waste
management), 10 (water-dependent uses), and 11
(living marine resources) of the Southold Program. 6
The EPA responded to New York’s objection in
November 2016, concluding that the State’s
arguments were “unfounded” and that the Eastern
Site designation would, in fact, be fully consistent
with both Programs. Joint App’x 3222. The agency
explained that it “considered whether to seek
mediation assistance from NOAA . . . to address this
CZMA dispute . . . but . . . decided against” that
course because the mediation process might be
“lengthy.”
Id. at 3223–24. The EPA therefore
concluded “that it is necessary to proceed with the
site designation at this point” despite the ongoing
New York asserted to the EPA that it was “bound by the terms
of the CZMA” to object to the EPA’s designation of the new
disposal site on Southold’s behalf because the Southold Program
has been incorporated into the New York Program. Joint App’x
3107.
6
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consistency dispute with New York. Id. at 3224. Later
the same day, the EPA issued a final rule formally
designating the Eastern Site as a permanent disposal
site under the MPRSA. See Designation of a Dredged
Material Disposal Site in Eastern Region of Long
Island Sound; Connecticut,
81 Fed. Reg. 87,820,
87,820 (Dec. 6, 2016). The rule became effective on
January 5, 2017. See id. at 87,821.
C. Procedural History
New York sued the EPA in August 2017 and filed
the operative complaint in October 2017. New York
raised five claims under the APA—four alleging
violations of the MPRSA and the fifth alleging a
CZMA violation. The State of Connecticut moved to
intervene as a defendant, and Southold moved to
intervene as a plaintiff. The district court granted
both motions. 7
The parties then cross-moved for summary
judgment on the plaintiffs’ claims alleging violation of
the MPRSA and the CZMA. The plaintiffs advanced
several arguments under the MPRSA: (1) that the
EPA’s determination that a new site was needed in the
eastern Sound was arbitrary and capricious; (2) that
the EPA failed to adequately consider whether the
Eastern Site would interfere with shipping and
navigation on the Sound; (3) that the EPA’s decision to
designate the new Eastern Site rather than relying on
preexisting disposal sites was arbitrary and
capricious; and (4) that the EPA had failed to consider
the potential pollution arising from the disposal of
non-federal projects of less than 25,000 cubic yards.
7
Suffolk County also intervened below as a plaintiff but did not
appeal.
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The plaintiffs also asserted that the Eastern Site
designation violated the CZMA because it was not
consistent to the maximum extent practicable with
the New York and Southold Programs.
The district court (Korman, J.) denied the
plaintiffs’ motions for summary judgment and
granted Defendants-Appellees’ cross-motions in July
2020. The bulk of the district court’s opinion addressed
whether the EPA’s designation of the Eastern Site
pursuant to the MPRSA was arbitrary and capricious
under the APA. Applying that deferential standard of
review, the district court upheld the agency’s action.
The district court then turned to the plaintiffs’
allegation that the CZMA had been violated. The
district court rejected that claim, drawing on its
analysis of the alleged MPRSA violations because
“New York rest[ed] its CZMA claim largely on the
‘same conduct and actions upon which [its MPRSA]
claims for relief’ are based.” Rosado, 473 F. Supp. 3d
at 146 (quoting N.Y. Summ. J. Br., District Court
Dkt. No. 71-1, at 84). The district court concluded
that “New York has not offered any additional viable
explanations for how EPA’s designation of the
Eastern Site is inconsistent with [the New York or
Southold] Programs.” Id. The district court entered
judgment for Defendants-Appellees on July 20, 2020,
and Plaintiffs- Appellants timely appealed.
II.
DISCUSSION
A. Standard of Review
“On appeal from a grant of summary judgment
involving a claim brought under the [APA], we review
the administrative record de novo without according
deference to the decision of the district court.”
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Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007).
“Under the APA, courts review agency action to
determine if it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’”
Friends of Animals v. Romero, 948 F.3d 579, 585 (2d
Cir. 2020) (quoting 5 U.S.C. § 706(2)(A)). Under this
“narrow” standard of review, a “court is not
empowered to substitute its judgment for that of the
agency.” Friends of Ompompanoosuc v. FERC, 968
F.2d 1549, 1554 (2d Cir. 1992) (quoting Citizens to
Pres. Overton Park v. Volpe, 401 U.S. 402, 416
(1971)).
Rather, a court will overturn an agency’s
determination only
when the agency “has relied on factors which
Congress has not intended it to consider,
entirely failed to consider an important aspect
of the problem, offered an explanation for its
decision that runs counter to the evidence
before the agency, or is so implausible that it
could not be ascribed to a difference in view or
the product of agency expertise.”
Karpova, 497 F.3d at 267–68 (quoting Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
In other words, so long as the agency
examines the relevant data and has set out a
satisfactory explanation including a rational
connection between the facts found and the
choice made, a reviewing court will uphold the
agency action, even a decision that is not
perfectly clear, provided the agency’s path to
its conclusion may reasonably be discerned.
A-24
Id. at 268.
New York contends on appeal that the district
court erred in applying arbitrary-and-capricious
review to the CZMA claim. We disagree. At the start,
New York argued below that the EPA’s consistency
determination was “arbitrary and capricious.” N.Y.
Summ. J. Br. 84. New York’s argument that the
district court erred by applying that standard of
review is thus arguably waived. See Wal-Mart Stores,
Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir.
2005) (“[W]here a party has shifted his position on
appeal and advances arguments available but not
pressed below, waiver will bar raising the issue on
appeal.” (citation, internal quotation marks, and
alteration omitted)).
In any event, we conclude that the district
court correctly applied the arbitrary-and-capricious
standard to Plaintiffs-Appellants’ CZMA claim. New
York advances several counterarguments on appeal,
but none is persuasive. First, New York notes that the
CZMA requires that federal agency action “be carried
out in a manner which is consistent to the maximum
extent practicable with the enforceable policies of
approved State management programs.”
16
U.S.C. § 1456(c)(1)(A) (emphasis added); see also 15
C.F.R. §§ 930.32(a)(1), 930.36(e)(2). But this provision
is not a standard of review. And New York does not
argue that the CZMA or its accompanying regulations
set forth a standard of review to displace the APA’s
arbitrary-and-capricious standard. See N.Y. Pub. Int.
Rsch. Grp., Inc. v. Johnson, 427 F.3d 172, 179 (2d Cir.
2005) (explaining that when a statute “does not
provide a standard of review,” we typically “review
A-25
[the agency’s] actions under the Administrative
Procedure Act . . . , which contemplates setting aside
only agency actions that are ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law.’” (quoting 5 U.S.C. § 706(2)(A))); see also
Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S.
461, 496–97 (2004).
Indeed, because the CZMA does not provide a
standard of review, courts have routinely subjected
CZMA claims to arbitrary-and-capricious review. See,
e.g., Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d
1140, 1144 (9th Cir. 2000) (“The ‘arbitrary or
capricious’ standard is appropriate for resolutions of
factual disputes implicating substantial agency
expertise.” (citing Marsh v. Or. Nat. Res. Council, 490
U.S. 360, 376–77 (1989))); Del. Dep’t of Nat. Res. &
Env’t Control v. U.S. Army Corps of Eng’rs, 685 F.3d
259, 286–87 (3d Cir. 2012); City of Riverview v.
Surface Transp. Bd., 398 F.3d 434, 439–40 (6th Cir.
2005); Am. Petroleum Inst. v. Knecht, 609 F.2d 1306,
1310 (9th Cir. 1979); see also City of Sausalito v.
O’Neill, 386 F.3d 1186, 1205, 1222 (9th Cir. 2004)
(reasoning that a court should “not generally overturn
a consistency determination [under the CZMA] just
because we might have come to a different conclusion
were the determination of ‘consistency’ before us in
the first instance” (citing Overton Park, 401 U.S. at
416)). And we are unpersuaded that the CZMA’s
requirement that federal agency action be “consistent
to the maximum extent practicable with the
enforceable policies of approved State management
programs” draws these decisions into question. 16
U.S.C. § 1456(c)(1)(A).
A-26
Next, New York contends that we must review
the EPA’s consistency determination de novo because
the EPA does not “administer” the CZMA. N.Y. Br.
37. But this argument conflates arbitrary-andcapricious review with a different doctrine—Chevron
deference—which does not apply here. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984). “We evaluate challenges to an agency’s
interpretation of a statute that it administers within
the two-step Chevron deference framework,” Catskill
Mountains Chapter of Trout Unlimited, Inc. v. EPA,
846 F.3d 492, 507 (2d Cir. 2017), but review an
agency’s “interpretation of . . . a statute that it does
not administer[] de novo,” N.Y. State Dep’t of Env’t
Conservation v. FERC, 884 F.3d 450, 455 (2d Cir.
2018). “When the question is not one of the agency’s
authority but of the reasonableness of its actions,”
however, “the ‘arbitrary and capricious’ standard of
the APA governs.” N.Y. Pub. Int. Rsch. Grp. v.
Whitman, 321 F.3d 316, 324 (2d Cir. 2003); see also
Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)
(observing that when the challenged agency action “is
not an interpretation of any statutory language,” “the
more apt analytic framework . . . is standard
‘arbitrary or capricious’ review under the APA”
(brackets omitted)); Hong v. U.S. Sec. & Exch.
Comm’n, 41 F.4th 83, 93 n.12 (2d Cir. 2022) (“us[ing]
the Chevron framework to address the statutory
interpretation questions presented” there but
separately evaluating whether “the agency’s
application of the statute and regulations . . . was
arbitrary or capricious”).
This case does not implicate the Chevron
doctrine because New York does not challenge the
A-27
EPA’s “authority” to render a consistency
determination or its interpretation of the CZMA.
Instead, it challenges the “reasonableness” of the
EPA’s consistency determination under that statute.
N.Y. Pub. Int. Rsch. Grp., 321 F.3d at 324. Put
another way, New York challenges the EPA’s
“application” of the CZMA in its consistency
determination. Hong, 41 F.4th at 93 n.12 (emphasis
omitted). And so “the ‘arbitrary and capricious’
standard of the APA governs.” N.Y. Pub. Int. Rsch.
Grp., 321 F.3d at 324.
For similar reasons, we reject New York’s
argument that we must review the EPA’s consistency
determination de novo because it has alleged that this
determination was “‘not in accordance with’ the
CZMA.” N.Y. Br. 33 (quoting 5 U.S.C. § 706(2)(A)).
The Supreme Court rejected a materially identical
argument in Marsh. In that case, the respondents
argued that “strict review is appropriate under the ‘in
accordance with law’ clause of § 706(2)(A)” because
they “maintain[ed] that the question for review
centers on the legal meaning of [a statutory] term” in
NEPA “or, in the alternative, the predominantly legal
question whether established and uncontested
historical facts presented by the administrative
record satisfy this standard.” Marsh, 490 U.S. at 376.
But the Court rejected that “[c]haracteriz[ation]” of
the dispute because the respondents’ challenge did
not turn on NEPA’s “meaning” or any other
“predominantly legal” question but instead “involve[d]
primarily issues of fact.” Id. at 376–77. And because
“analysis of the relevant documents” for the
respondents’ NEPA claim “require[d] a high level of
technical expertise,” the Court held that it “must
A-28
defer to ‘the informed discretion of the responsible
federal agencies.’” Id. at 377 (quoting Kleppe v. Sierra
Club, 427 U.S. 390, 412 (1976)). The Marsh Court
therefore concluded that “review of the narrow
question before [it] whether the [agency’s]
determination . . . should be set aside is controlled by
the ‘arbitrary and capricious’ standard of § 706(2)(A).”
Id. at 376; see also J. Andrew Lange, Inc. v. FAA, 208
F.3d 389, 391 (2d Cir. 2000) (explaining that “[u]nder
the APA, this Court reviews errors of law de novo” but
reviews “other agency findings, conclusions, and
actions”
under
the
arbitrary-and-capricious
standard).
Marsh’s reasoning applies here. See Akiak, 213
F.3d at 1144 (applying Marsh to a CZMA claim). Like
that case, this case does not turn on predominantly
legal issues, such as the EPA’s interpretation of the
CZMA. It depends instead on the fact-specific
question of whether the EPA adequately responded to
New
York’s
objections
to
its
consistency
determination. So as in Marsh, “[t]he question
presented for review in this case is a classic example
of a factual dispute the resolution of which implicates
substantial agency expertise.” 490 U.S. at 376. Thus,
we follow Marsh’s lead in rejecting PlaintiffsAppellants’ “supposition that review is of a legal
question and that the [EPA’s] decision ‘deserves no
deference.’” Id. at 377.
Scheduled Airlines Traffic Offices, Inc. v. DOD,
on which New York relies, in fact illustrates why the
APA’s “not in accordance with law” standard is
inapplicable here. See 87 F.3d 1356, 1361 (D.C. Cir.
1996). That case involved “a pure question of
A-29
statutory interpretation independent of the complex
factual
determinations
or
policy
judgments
particularly within agencies’ expertise.” Id. For that
reason, the court held that the issue there was “not
whether the Department acted arbitrarily or
capriciously, . . . but rather whether it acted ‘in
accordance with [federal] law.’” Id. (quoting 5 U.S.C. §
706(2)(A)) (alteration in original). And because “the
Defense Department ha[d] not been entrusted to
administer” the statute at issue in the case, the court
reviewed the agency’s interpretation de novo. Id.; cf.
Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 815
(D.C. Cir. 2002) (“In reviewing an agency’s statutory
interpretation under the APA’s ‘not in accordance
with law’ standard, we adhere to the familiar two-step
test of Chevron, provided that the conditions for such
review are met.”). But unlike Scheduled Airlines
Traffic Offices, this case turns on “complex factual
determinations,” not “a pure question of statutory
interpretation.” 87 F.3d at 1361. Thus, the arbitraryand-capricious standard applies.
Nor does the presidential waiver provision found in 16
U.S.C. § 1456(c)(1)(B) imply, as New York contends,
N.Y. Br. 44, that the CZMA forecloses arbitrary- andcapricious review. Section 1456(c)(1)(B) simply
provides that if a federal court concludes that an
agency’s consistency determination was erroneous,
the Secretary can seek a waiver of the CZMA’s
consistency requirement from the President. But this
provision does not alter the standard of review by
which a court determines whether a consistency
determination was in error.
B.
Application
A-30
Because we conclude that the arbitrary-andcapricious standard governs here, we apply that
standard in reviewing Plaintiffs-Appellants’ claims on
the merits. Plaintiffs-Appellants argue that the
district court erred by upholding the EPA’s
determination that its designation of the Eastern Site
is consistent to the maximum extent practicable with
the New York and Southold Programs. Southold also
challenges the adequacy of the Environmental Impact
Statement that the EPA submitted pursuant to
NEPA in support of its designation. For the reasons
set forth below, we reject these claims.
1. New York’s Claims
New York generally asserts that the EPA’s
designation of the Eastern Site is inconsistent with
the following policies of the New York Program:
to “[p]rotect water quality of coastal waters
from adverse impacts associated with
excavation, fill, dredging, and disposal of
dredged material” (Policy 5, Sub-Policy 5.3); to
work towards “reduction or elimination of
adverse impacts associated with existing
development” (Policy 6, Sub-Policy 6.1); to
“[a]void placement of dredged material in
Long Island Sound when opportunities for
beneficial reuse of the material exist” (Policy
10, Sub-Policy 10.6); and to promote “marine
resources by . . . protecting spawning grounds,
habitats, and water quality” (Policy 11, SubPolicy 11.1).
N.Y. Br. 50 (alterations and omission in original)
(citations omitted); see also Joint App’x 3241–42. But
the specific arguments that New York raises on appeal
A-31
pertain only to Sub-Policy 10.6 of the New York
Program, entitled “Provide sufficient infrastructure
for water-dependent uses.” That policy states:
Use suitable dredged material for beach
nourishment, dune reconstruction, or other
beneficial uses. Avoid placement of dredged
material in Long Island Sound when
opportunities for beneficial reuse of the
material exist. Allow placement of suitable
dredged material in nearshore locations to
advance maritime or port-related functions,
provided it is adequately contained and avoids
negative impacts on vegetated wetlands and
significant coastal fish and wildlife habitats.
Avoid shore and water surface uses which
would impede navigation.
Joint App’x 3214–15.
Relying on Sub-Policy 10.6, New York argues
that the EPA did not adequately respond to four of its
objections to the EPA’s consistency determination: (1)
that a new dredging site was not needed in the
eastern Sound because the Western and Central Sites
have adequate capacity to fulfill the Sound’s dredging
requirements, (2) that the EPA improperly considered
a lack of funding in its consistency determination, (3)
that certain waste materials disposed of at the
Eastern Site could be subject to environmentally
harmful “capping” practices, and (4) that the EPA
unreasonably included site use restrictions based on
the restrictions for the Western and Central Sites. We
are not persuaded. As explained below, the EPA
adequately responded to each of these objections.
A-32
First, New York argues that the EPA failed to
adequately respond to its objection that the Eastern
Site is unnecessary because the Western and Central
Sites have adequate capacity to fulfill the Sound’s
dredging requirements for the next several decades. 8
But the EPA explained that
[d]isposal capacity at the [Western Site]
and [Central Site] does not obviate the need
for the [Eastern Site]. [The Corps] projected in
the DMMP that dredging in Long Island
Sound would generate . . . 49.6 [million cubic
yards or “mcy”] of material that could
potentially need to be placed at an open-water
disposal site. . . .
. . . [T]he [Central Site] and [Western
Site] are each estimated to have a disposal
capacity of about 20 mcy. This 40 mcy of
capacity is not enough to take the entire 49.6
mcy of material that could require open- water
disposal.
8 The EPA argues that New York waived this argument by failing
to raise it before the district court. As noted above, “where a
party has shifted his position on appeal and advances arguments
available but not pressed below, waiver will bar raising the issue
on appeal.” Wal-Mart Stores, 396 F.3d at 124 n.29 (citation,
internal quotation marks, and alteration omitted). Before the
district court, New York argued that the EPA’s designation of
the Eastern Site is inconsistent with Policy 5 and Sub-Policy 5.3
of the New York Program because there is no need for the
Eastern Site. New York did not argue that the designation would
be inconsistent with Sub-Policy 10.6 for that reason.
Nonetheless, because New York’s argument on appeal
sufficiently resembles the argument that it advanced before the
district court, we do not agree that New York has waived it.
A-33
Id. at 3243–44. And it cautioned that
it must be understood that estimates of the
amounts of material of different types needing
to be managed in the future are unavoidably
imperfect. The actual amount of material that
will require management could be higher (or
lower) over the 30-year planning horizon. This
is especially evident when unpredictable
events, such as large storms and possible
improvement
dredging
projects,
are
considered.
Id. at 3245.
Although New York acknowledges that the
Corps estimated that the Sound could generate up to
49.6 million cubic yards of dredged material requiring
open- water disposal in the coming decades and that
the total capacity of the Western and Central Sites
was only 40 mcy, the State notes that the 49.6
figure included 15.5 million cubic yards 9 of dredged
sand that might be put to “beneficial use, such as
9
We observe that New York’s brief is inconsistent as to the
amount of dredged sand that could be amenable to a beneficial
use. Compare N.Y. Br. 27–28, 50–51 (15.2 million cubic yards),
with id. at 18 (15.5 million cubic yards). The record also appears
inconsistent on this point. The Corps apparently reported this
figure as 15.5 million cubic yards, see Joint App’x 3968–69, but
the EPA later stated that the Corps had reported it as 15.2
million cubic yards, see Joint App’x 3243–44. Because this
discrepancy does not affect our conclusions, we use 15.5 million
cubic yards without further discussion.
A-34
beach renourishment.” N.Y. Br. 18. 10 So New York
contends that the EPA should have subtracted out
that 15.5 mcy from the topline 49.6 estimate, which
would have led it to conclude that the Western and
Central Sites had adequate capacity to accept all the
dredged material the Corps projected the Sound
would generate in the coming decades.
The EPA adequately responded to this
objection. It reasoned, first, that there was “no
guarantee” that it could find a beneficial use for
dredged material from the Sound. Joint App’x 3244.
The agency also noted that because the 49.6 million
cubic yards figure was an estimate, the Sound might
generate even more dredged material that would
require additional disposal capacity. And the EPA’s
determination that the Eastern Site was necessary did
not rest solely on an estimate of the quantity of
dredged material the Sound might generate. As the
agency explained:
Beyond the question of disposal capacity,
when EPA took into account overall
environmental effects, environmental and
safety risks, logistical difficulties, and the
expense of using such distant sites, EPA
concluded that the [Central Site], [Western
Site], and [Rhode Island Sound Disposal Site
(the “RI Site”)] would not reasonably serve the
needs of the eastern Long Island Sound
10
The Corps also estimated that 3.3 million cubic yards of
dredged material would be contaminated with dangerous toxins
and so would be unsuitable for open-water disposal. Joint App’x
3969.
A-35
region. A key consideration in EPA’s
determination that a designated site is
needed in eastern Long Island Sound is that
going outside the region would involve far
longer transit distances from dredging centers
in the eastern Sound.
Id. at 3245. For those reasons, the EPA’s conclusion
that it was “reasonable and prudent to designate sites
to ensure adequate disposal capacity is available for
all the projected material” was not arbitrary and
capricious. Id.
Second, New York argues that the EPA
improperly “invoked the cost savings of having a
dumping site proximate to dredging centers in the
Eastern Sound” as a “benefit” of designating the
Eastern Site. N.Y. Br. 53. That consideration, New
York contends, violates 15 C.F.R. § 930.32(a)(3),
which provides:
Federal agencies shall not use a general claim
of a lack of funding or insufficient
appropriated funds or failure to include the
cost of being fully consistent in Federal
budget and planning processes as a basis for
being consistent to the maximum extent
practicable with an enforceable policy of a
management program.
New York misstates the nature of
considerations that the EPA considered.
the
cost
In responding to New York’s objections, the EPA
explained:
Finally, longer haul distances also would
increase the cost both to taxpayers and
A-36
private entities of completing dredging
projects. Using the [Central Site], [Western
Site], or [RI Site] would greatly increase the
transport distance for, and duration of, openwater disposal for dredging projects from the
eastern Long Island Sound region. This, in
turn, would greatly increase the cost of such
projects. It could also render certain dredging
projects too expensive to conduct. . . . EPA is
not designating the [Eastern Site] solely in
order to make dredging less expensive, but it
would be irrational to ignore that reducing
the cost of necessary dredging is another of
the many benefits of designating the [Eastern
Site], a site which EPA has determined to be
environmentally sound, instead of relying on
more distant sites.
Joint App’x 3246. Thus, the EPA did not rely on the
agency’s own cost considerations to support its
consistency determination. It instead outlined the
costs that would accrue to taxpayers and private
enterprises from a failure to designate the new site.
While 15 C.F.R. § 930.32(a)(3) prevents a federal
agency from using its own budgetary constraints as
an excuse to avoid complying with a state’s coastal
management program, it does not compel the agency
to pursue activities that it deems economically
wasteful.
Third, New York argues that the EPA ignored
its objection that toxic “material from smaller
nonfederal projects dumped at the Eastern site could
be subject to capping,” N.Y. Br. 57–58, a process that
involves “using relatively cleaner material to cover
A-37
relatively less clean material and, thus, isolate the
latter from the environment,” Joint App’x 3258. The
State asserts that dredged material is “often laden”
with “toxins,” and that nonfederal projects generating
less than 25,000 cubic yards of dredged material are
subject only to the Clean Water Act (“CWA”) rather
than the “more stringent” standards of the MPRSA.
N.Y. Br. 57.
The EPA explicitly addressed this objection in
its November 4, 2016, response letter. The
EPA
explained that New York’s objection rests on a
“misguided
understanding”
of
the
proposed
designation of the Eastern Site. Joint App’x 3258. The
agency “would not approve of the disposal of toxic
sediments at the [Eastern Site] on the grounds that it
could later be capped with cleaner material” because
“MPRSA regulations clearly dictate that only
‘suitable’ material may be placed at an open-water
disposal site regulated under the MPRSA,” and a
proposal to “cap” unsuitable material with cleaner
material “does not change that.”
Id.
New York asserts that the EPA’s response was
inadequate because it failed to address the prospect
that “capping” may still occur for smaller, nonfederal
projects subject to regulation under the CWA rather
than the “more stringent” MPRSA standards. N.Y.
Br. 57. But that amounts to an argument that the
CWA, which indisputably applies to those projects,
does not adequately regulate capping. And as the EPA
persuasively argues, that objection lies “with
Congress, not EPA.” EPA Br. 44. The EPA notes,
moreover, that concerns about capping in any
A-38
hypothetical future project can be addressed during
the individual permitting process.
New York also contends that the EPA cannot
now respond to New York’s argument about small,
nonfederal projects because it failed to do so during
the notice-and-comment process. See Michigan v.
EPA, 576 U.S. 743, 758 (2015) (“[A] court may uphold
agency action only on the grounds that the agency
invoked when it took the action.”). But New York, too,
did not raise the issue of small, nonfederal projects
during the notice-and-comment process, and
arbitrary-and- capricious review does not require that
an agency respond in advance to every hypothetical
objection that might be raised. See Appalachian
Power Co. v. EPA, 251 F.3d 1026, 1036 (D.C. Cir.
2001) (“It is black-letter administrative law that
absent special circumstances, a party must initially
present its comments to the agency during the
rulemaking in order for the court to consider the
issue.” (citation, internal quotation marks, and
alteration omitted)).
Finally, New York argues that the EPA erred
by “unilaterally” adding conditions to the proposed
Eastern Site “and then rely[ing] on those restrictions
as evidence of consistency under the CZMA despite
the State’s objection.” N.Y. Br. 61 New York claims
that the agency “transpose[d] negotiated restrictions
for the Central and Western sites onto the Eastern
site, and then use[d] them as a basis for nullifying
New York’s objection to the Eastern site.” N.Y. Reply
Br. 33. But the EPA never asserted that the
additional site restrictions render its designation of
the Eastern Site consistent with the New York
A-39
Program on their own. Rather, in responding to New
York’s objections, the agency explained:
Applying these site use restrictions to the
[Eastern Site] should be equally acceptable
because the restrictions apply equally well to
the eastern Sound and applying the same
restrictions across the entire Sound makes
good sense. As a result, the entire Sound will
be covered by the same regulatory regime
applied by the same federal and state
regulators.
Joint App’x 3223. New York therefore fails to show
that the EPA’s decision to impose additional
restrictions on the Eastern Site undermines the
agency’s efforts to achieve full consistency with the
New York Program.
2. Town of Southold’s Claims
In a separate brief, Southold challenges the
EPA’s determination that its designation of the
Eastern Site is fully consistent with the Southold
Program. Southold also contends that the EPA
violated NEPA in designating the Eastern Site. As
explained below, we conclude that the EPA’s
determination that its activity is fully consistent with
the Southold Program is not arbitrary and capricious,
and that Southold’s NEPA claim is waived.
i. CZMA
Southold begins by arguing that the EPA’s
designation of the Eastern Site is inconsistent with
several policies enumerated in the Southold Program.
First, Southold claims that the EPA’s designation
conflicts with Sub-Policy 5.3 of the Southold Program,
A-40
entitled “Protect and enhance quality of coastal
waters.” It provides:
A. Protect water quality based on an
evaluation of physical factors (pH, dissolved
oxygen, dissolved solids, nutrients, odor, color
and turbidity), health factors (pathogens,
chemical contaminants, and toxicity), and
aesthetic factors (oils, floatables, refuse, and
suspended solids).
C. Protect water quality of coastal waters
from adverse impacts associated with
excavation, fill, dredging, and disposal of
dredged material.
Id. at 3252–53. Southold asserts, without elaboration,
that “[c]oncerns regarding [the] extent of the testing
and protocols used were raised repeatedly . . . without
a satisfactory response.” Southold Br. 27. The record
demonstrates, however, that the EPA adequately
responded to Southold’s concerns about the Eastern
Site’s effect on the Sound’s water quality. The agency
noted that designating a new disposal site does not
affect water quality; only individual projects, which
require a permit, can do so. See Joint App’x 3254. So,
the EPA explained, Southold’s concerns about water
quality can be addressed in the permitting process for
any hypothetical future project. And the agency
reasoned that “the sediment suitability criteria in
EPA’s MPRSA regulations require the assessment of
physical, health and aesthetic factors,” ensuring that
the designation of the Eastern Site is consistent with
the Southold Program. Id. Taken together, these two
responses adequately addressed Southold’s waterquality objection.
A-41
Second, Southold argues that the EPA’s site
designation conflicts with Sub- Policy 6.1 of the
Southold Program, which emphasizes protecting
“ecological quality.” Id. at 3260–61. But the agency
explained in detail how the Eastern Site designation
would comport with that policy. The EPA highlighted
“the aspects of [its] analysis relating to chemistry,
toxicity, bioaccumulation, benthic health, aquatic
organism impacts, and bathymetry, all of which
contribute to the assessment of possible physical,
chemical, and biological changes if the site is
designated.” Id. at 3262. Indeed, the agency noted,
“[b]enthic analyses within . . . the [Eastern Site]
indicate good quality habitats for benthic organisms,”
and “[t]he data shows rapid recovery of benthic
organisms within the disposal sites after the initial
effects of sediment placement.” Id. at 3262 n.27. The
EPA also explained that its “assessment is based on
over 40 years of monitoring data on chemistry,
toxicity, bioaccumulation, benthic health, and
bathymetry to assess physical, chemical and
biological changes at the [New London Site] and
[Cornfield Shoals Site].” Id. at 3262–63. Thus, the
record shows that the EPA adequately responded to
Southold’s objections regarding Sub-Policy 6.1.
Third, Southold argues that the EPA’s site
designation is inconsistent with Sub-Policy 6.2 of the
Southold Program, which aims to protect coastal fish
and wildlife habitats. But Southold failed to raise that
objection during the notice-and- comment process or
in the district court. Southold is therefore precluded
from raising that issue for the first time on appeal.
See In re Nortel Networks Corp. Sec. Litig., 539 F.3d
129, 132 (2d Cir. 2008) (“It is a well-established
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general rule that an appellate court will not consider
an issue raised for the first time on appeal.” (citation,
internal quotation marks, and alteration omitted));
Appalachian Power Co., 251 F.3d at 1036 (“[A] party
must initially present its comments to the agency
during the rulemaking in order for the court to
consider the issue.” (citation, internal quotation
marks, and alteration omitted)).
Fourth, Southold argues that the EPA’s site
designation conflicts with Sub- Policies 8 and 10 of
the Southold Program, which contain Southold’s
waste policy and water-dependent use policy,
respectively. Southold failed to raise those two
objections during the notice-and-comment process as
well and is barred from doing so now. See
Appalachian Power, 251 F.3d at 1036.
Fifth and finally, Southold argues that the
EPA’s site designation is inconsistent with Sub-Policy
11 of the Southold Program, which promotes the
sustainable use of living marine organisms and the
protection of their habitats. But the EPA’s response to
this objection, too, was adequate:
EPA directly considered the question of
habitat effects and concluded that the site
would not have significant adverse effects on
marine habitat. . . . Furthermore, . . . EPA redelineated the boundaries of the [Eastern
Site] to exclude two rocky, hardbottom areas
that could provide relatively higher quality
habitat for marine organisms. . . . Thus, EPA
remains confident that designation of the
[Eastern Site] is consistent with the Marine
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Resources Policies to the maximum extent
practicable.
Joint App’x 3278. Southold does not explain why this
response was inadequate, so its final objection fails as
well.
ii. NEPA
Finally,
Southold
contends
that
the
Environmental
Impact
Statement
the EPA
submitted in support of its Eastern Site designation is
inadequate because the agency failed to take a
sufficiently “hard look” at its environmental impact
in violation of the Supreme Court’s decision in Kleppe,
427 U.S. 390. Southold Br. 20.
Southold abandoned this claim in the district
court. Although Southold’s complaint raises a NEPA
claim, the town did not mention that claim in its
summary judgment briefing. And the district court’s
decision did not discuss it, either. We therefore
conclude that Southold is precluded from belatedly
asserting its NEPA claim on appeal. See In re Nortel
Networks, 539 F.3d at 132.
III.Conclusion
For the foregoing reasons, we AFFIRM the
judgment of the district court.
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Appendix B Memorandum and Order of the
Honorable Edward R. Korman,
dated July 17, 2020
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ROSSANA ROSADO, in her official
capacity as NEW YORK STATE
SECRETARY OF STATE, et al.,
Plaintiffs,
TOWN OF SOUTHOLD,
NEW YORK, et al.,
MEMORANDUM
& ORDER
1:17-cv-04843-ERKRLM
Plaintiffs-Intervenors
– against –
ANDREW WHEELER, in his official
capacity as Acting Administrator of the
United States Environmental Protection
Agency, et al.,
Defendants,
CONNECTICUT DEPARTMENT OF
ENERGY & ENVIRONMENTAL
PROTECTION,
Defendant-Intervenor.
KORMAN, J.:
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Beginning where the parties agree, Long Island
Sound is a national treasure. It is home to abundant
wildlife, host to a litany of activities, and serves as an
engine of economic activity that expands throughout
our nation. See Town of Huntington v. Marsh, 859
F.2d 1134 (2d Cir. 1988). For these same reasons,
public and private stakeholders—neighbors and
partners in a variety of realms—sometimes disagree
on how to best safeguard its waters. This is
particularly true when it comes to the topic of dredge
disposal. See Nat. Res. Def. Council, Inc. v. Callaway,
524 F.2d 79 (2d Cir. 1975); Forbes v. U.S. Army Corps
of Eng’rs, Order and Judgment, No. 95-CV-4374
(E.D.N.Y. June 28, 2000) (Platt, J.). In this latest
dispute, the question is whether the Environmental
Protection Agency followed the decision-making
processes set out by two laws— the Marine
Protection, Research, and Safety Act (“MPRSA”), and
the Coastal Zone Management Act (“CZMA”)—when
the agency designated the Eastern Long Island Sound
Site as an open- water dredge disposal site in
November 2016.
I.
Background
A. Statutory and Regulatory Background
1. The Marine Protection, Research, and
Sanctuaries Act
Congress enacted the MPRSA in 1972 to
mitigate the environmental impact of unregulated
dumping in ocean waters, and to prohibit the
unauthorized transportation or dumping of waste
from the United States into ocean waters. 33 U.S.C. §
1411. The MPRSA generally applies to ocean waters
beyond U.S. territory, and in this regard,
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complements the Clean Water Act, which prohibits
the discharge of pollutants into the navigable waters
of the United States. 33 U.S.C. §§ 1311, 1362(12).
Since Long Island Sound lies in U.S. waters, it was
not initially subject to the MPRSA. However,
recognizing the Sound’s unique contribution to our
nation’s environment, economy, and national security,
Congress amended the MPRSA to cover the Sound’s
waters in 1980. Thus, under the Ambro Amendment,
“the dumping of dredged material in Long Island
Sound from any Federal project (or pursuant to
Federal authorization) or from a dredging project by a
non-Federal applicant exceeding 25,000 cubic yards”
must comply with the MPRSA. 33 USC § 1416. To
this day, the Sound is the only landward body of
water subject to the MPRSA.
The MPRSA governs site designations as well
as permitting for disposal at such sites. Under the
law, EPA and the Army work together throughout
these processes. Specifically, Section 1413 of the
MPRSA provides that the Secretary of the Army may
issue permits for the disposal of dredged material, on
the conditions that the Secretary has determined that
such dumping “will not unreasonably degrade or
endanger human health, welfare, or amenities, or the
marine environment, ecological systems, or economic
potentialities.” 33 U.S.C. §1413(a). To determine
whether proposed dumping meets this standard, the
Army Corps of Engineers is directed to consider the
regulatory criteria established by EPA pursuant to
Section 1412(a), which states that the EPA
“Administrator shall establish and apply criteria for
reviewing and evaluating such permit applications,
and, in establishing or revising such criteria, shall
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consider, but not be limited in his consideration to,
the following:
(A) The need for the proposed dumping.
(B) The effect of such dumping on human health
and welfare, including economic, esthetic, and
recreational values.
(C) The effect of such dumping on fisheries
resources, plankton, fish, shellfish, wildlife,
shore lines and beaches.
(D) The effect of such dumping on marine
ecosystems, particularly with respect to—
(i) the
transfer,
concentration,
and
dispersion of such material and its
byproducts through biological, physical,
and chemical processes,
(ii) potential changes in marine ecosystem
diversity, productivity, and stability, and
(iii) species and community population
dynamics.
(E) The persistence and permanence of the effects
of the dumping.
(F) The effect of dumping particular volumes and
concentrations of such materials.
(G) Appropriate locations and methods of disposal
or recycling, including land- based alternatives
and the probable impact of requiring use of
such alternate locations or methods upon
considerations affecting the public interest.
(H) The effect on alternate uses of oceans, such as
scientific study, fishing, and other living
resource exploitation, and non-living resource
exploitation.
(I) In designating recommended sites, the
Administrator shall utilize wherever feasible
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locations beyond the edge of the Continental
Shelf.
Section 1412(c) directs EPA to consider these same
factors in establishing and applying criteria for site
designations.
Pursuant to these provisions, EPA has
promulgated a set of general and specific criteria to
guide its dredge disposal site designations. Section
228.5 establishes four general criteria for the
selection open-water sites:
(a) The dumping of materials into the ocean will be
permitted only at sites or in areas selected to
minimize the interference of disposal activities
with
other
activities
in
the
marine
environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions
of heavy commercial or recreational navigation.
(b) Locations and boundaries of disposal sites will
be so chosen that temporary perturbations in
water quality or other environmental
conditions during initial mixing caused by
disposal operations anywhere within the site
can be expected to be reduced to normal
ambient seawater levels or to undetectable
contaminant concentrations or effects before
reaching any beach, shoreline, marine
sanctuary, or known geographically limited
fishery or shellfishery.
(c) [Reserved by 73 FR 74987]
(d) The sizes of ocean disposal sites will be limited
in order to localize for identification and control
any immediate adverse impacts and permit the
implementation of effective monitoring and
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surveillance programs to prevent adverse longrange impacts. The size, configuration, and
location of any disposal site will be determined
as a part of the disposal site evaluation or
designation study.
(e) EPA will, wherever feasible, designate ocean
dumping sites beyond the edge of the
continental shelf and other such sites that have
been historically used.
40 C.F.R. § 228.5. Section 228.6—the specific criteria—
further provides that “[i]n the selection of disposal sites, in
addition to other necessary or appropriate factors
determined by the Administrator, the following
factors will be considered:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Geographical position, depth of water, bottom
topography and distance from coast;
Location in relation to breeding, spawning,
nursery, feeding, or passage areas of living
resources in adult or juvenile phases;
Location in relation to beaches and other
amenity areas;
Types and quantities of wastes proposed to be
disposed of, and proposed methods of release,
including methods of packing the waste, if
any;
Feasibility of surveillance and monitoring;
Dispersal, horizontal transport and vertical
mixing characteristics of the area, including
prevailing current direction and velocity, if
any;
Existence and effects of current and previous
discharges and dumping in the area (including
cumulative effects);
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Interference with shipping, fishing, recreation,
mineral extraction, desalination, fish and
shellfish culture, areas of special scientific
importance and other legitimate uses of the
ocean;
(9) The existing water quality and ecology of the
site as determined by available data or by
trend assessment or baseline surveys;
for
the
development
or
(10) Potentiality
recruitment of nuisance species in the disposal
site;
(11) Existence at or in close proximity to the site of
any significant natural or cultural features of
historical importance.
(8)
40 C.F.R. § 228.6(a). EPA is further required to base
site designations on environmental studies of each
site, regions adjacent to the site, and on historical
knowledge of the impact of dredged material disposal
on areas similar to such sites in physical, chemical,
and biological characteristics, and discuss these
criteria in any environmental impact statement
prepared in connection with a proposed site
designation. 40 C.F.R. §§ 228.4, 228.6(b).
Before a site may be used, EPA and the Corps
must develop a Site Management and Monitoring
Plan (“SMMP”), including an assessment of site
conditions, a program for monitoring the site, special
management conditions or practices to be
implemented at the site to protect the environment,
consideration of the quantity of material to be disposed
of at the site and the presence of contaminants in the
material, consideration of the anticipated use of the
site over the long term, and a schedule for review and
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revision of the plan. 33 U.S.C. §§ 1412(c)(3), (c)(4).
Finally, as outlined in greater detailed below, both
the Corps and EPA play significant roles in ensuring
that any proposed disposal at open-water sites
complies with testing and environmental standards
as required under the MPRSA (and separately, the
Clean Water Act).
2. The Coastal Zone Management Act
The same week President Nixon signed the
MPRSA into law, he also signed the CZMA. In view of
the reality that environmental protection requires
significant
deliberation
between
the
federal
government and state and local authorities, Congress
had enacted the CZMA to further the “national
interest in the effective management, beneficial use,
protection, and development of the coastal zone.” 16
U.S.C. § 1451(a). Under the CZMA, coastal
jurisdictions may develop their own coastal zone
management programs, which are subject to federal
approval by the National Oceanic and Atmospheric
Administration (NOAA) in the Department of
Commerce. Id. § 1455(d).
Once a given coastal zone management
program is approved, “[e]ach Federal agency activity
within or outside the coastal zone that affects any
land or water use or natural resource of the coastal
zone shall be carried out in a manner which is
consistent to the maximum extent practicable with
the enforceable policies of approved State
management programs.” Id. § 1456(c)(1)(A).
Moreover, any such agency shall issue a consistency
determination to the relevant State agency no later
than 90 days before final approval of the federal
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activity. Id. § 1456(c)(1)(C). Jurisdictions may then
concur or object to the federal agency’s consistency
determination. Id. § 1456(c)(3)(A).
B. Factual Background
1. The Sound
Generally
and
the
Need
to
Dredge
Long Island Sound is a 110-mile long semienclosed tidal estuary spanning the coastlines of New
York, Connecticut, and Rhode Island. The Sound
connects to the Atlantic Ocean at its eastern end and
New York Harbor at its western end, with the
Connecticut-New York state line cutting east-west
through the middle. It contains three general areas:
the Western Basin, which runs from the Narrows
(between Throgs Neck and Willets Point, New York) to
the Stratford Shoal (between Stratford Point, near
Bridgeport, Connecticut, and Port Jefferson, New
York); the Central Basin, which stretches from the
Stratford Shoal to the Mattituck Sill (between
Mulberry Point, Connecticut, and Mattituck Point,
New York); and the Eastern Basin, which extends
from the Mattituck Sill to the Race at the eastern end
of the Sound and includes Peconic Bay, Gardiners
Bay, and Fishers Sound.
There are more than 200 harbors, coves, bays,
and navigable rivers that require occasional dredging
in the Sound. Essentially, dredging entails the
excavation of materials and sediments that
accumulate over time on the seafloor due to natural
and industrial causes. While some of this sediment
may be suitable for beneficial uses such as
renourishing beaches, constructing wetlands, and
capping landfills, a significant portion still requires
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open-water disposal. And while dredged materials are
not necessarily toxic, they may be contaminated by
municipal, industrial wastes, or agricultural runoff.
40 C.F.R. § 227.13(a). The Army Corps of Engineers
alone is responsible for 52 ongoing maintenance and
improvement
projects—aptly
titled
“Federal
Navigation Projects”— in the Sound and adjacent
waters, most of which are in Connecticut’s waters. AR82, DMMP at 3. While Corps projects generate a
substantial portion of the material dredged in the
Sound, other federal and non-federal projects are
needed to accommodate marinas, boat yards, and
coastal businesses. FSEIS at 74. Indeed, dredging has
occurred in the Sound since at least the 1870s, and
the continued need for dredging is not disputed. Even
while objecting to the designation of the Eastern Site
at issue here, New York asserted that “[a]s a state
with considerable water dependent uses and
navigation infrastructure, New York recognizes the
need for, and is fully supportive of, dredging for
maintaining these types of activities.” AR-23, EPA
Response to New York Objection, at 18–19. Southold’s
comments acknowledged the same. FSEIS at 3695–
96. The trouble arises when all that material has to
go somewhere.
2. Recent Site Designations in the Sound
The current dispute can be traced to 1999,
when EPA published a notice of intention to consider
whether it was appropriate to designate disposal sites
in the Sound. 64 Fed. Reg. 29865–01 (June 3, 1999).
In March 2002, EPA issued a notice stating the
agency’s intention to first consider whether disposal
sites should be designated in the Western and Central
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basins, and thereafter consider whether a site would
be needed in the eastern Sound. 70 Fed. Reg. 32498–
01, 32509 (June 3, 2005). Following that plan, EPA
designated the Rhode Island Sound Disposal Site as a
permanent site in 2004. DMMP at 164. The following
year, EPA designated the Central and Western Long
Island Disposal Sites. The EPA’s Final Environmental
Impact Statement in support of designating those
sites did not address the dredging needs of the
eastern Sound, but stated the agency would soon
conduct supplemental analysis of the entire Sound. 70
Fed. Reg. at 32509.
While Connecticut concurred with EPA’s
determination that designation of the Central and
Western sites was consistent with the state’s coastal
management program, New York initially objected.
Negotiation ensued, and the parties agreed to certain
site use restrictions, under which New York concurred
that sites were consistent with their enforceable
coastal zone management programs. See AR-62 (70
Fed. Reg. at 32498, 32511–514, 32518–520) (40
C.F.R. §§ 228.15(b)(4)(vi), (b)(5)(vi)); AR-A 060, pp. 1–
2;. These restrictions included, among other
conditions, agreements that: dredged material would
only be placed at the sites after a demonstration that
there were not practicable alternatives to open-water
disposal, disposal would be barred during weather
that would create a heightened risk of spillage during
transit, and any party could petition the EPA to
amend the site use restrictions in the event that the
volume of open- water disposal has not declined by
2026. 81 Fed. Reg. 44220-01, 44229–30 (July 7, 2016).
Most significantly, EPA agreed to publish a
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Sound-wide Dredged Material Management Plan
(“DMMP”), researched and drafted by the Army
Corps. The basic idea is that the DMMP would
analyze dredging needs through 2045, contemplate
beneficial uses of dredged material, and outline
oceanographic and biological conditions across the
Sound. AR-7, DSEIS, at 48–49, 80; AR-8, Report of
the Public Scoping Meetings, at 47. In short, the
DMMP aimed “to provide a 30 year management
strategy to add certainty to dredging and placement
activities from navigation channels and Port facilities
within the region in an environmentally acceptable
and economically practicable manner, and to develop
alternatives to reduce or eliminate open water
placement where practicable.” DMMP at 60.
By 2011, the two dredged material disposal
sites operating in the eastern Sound—the New
London Disposal Site (NLDS) and the Cornfield
Shoals Disposal Site (CSDS)—were scheduled to
close. To buy time to evaluate a potential new site to
service the eastern Sound, Congress extended the life
of those sites for five additional years, until December
2016. AR-A 202; FSEIS at 58–59. In July 2012, EPA
began investigating whether a new disposal site, or
multiple sites, should be designated to service the
eastern Sound, and reached out to cooperating
agencies including the New York Department of State
(“NY DOS”) and the Connecticut Department of
Energy and Environmental Protection (“DEEP”).
Report of the Public Scoping Meetings at 60. Three
months later, consistent with EPA’s decision to follow
the agency’s Statement of Policy for Voluntary
Preparation of National Environmental Policy Act
(“NEPA”) Documents, EPA issued a notice of intent to
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prepare a supplemental environmental impact
statement in connection with the evaluation of
potential sites in the eastern Sound. 77 Fed. Reg.
63312 (Oct. 16, 2012). The notice stated EPA’s intent
“to evaluate the two current sites used in eastern Long
Island Sound, the CSDS and NLDS, as well as other
sites for, and means of, disposal and management.” Id.
The notice also expressly stated that, pursuant to the
law, EPA would consider a “no action alternative,”
meaning the alternative of not designating any new
sites. Id.
In furtherance of this process, EPA held two
public “scoping” meetings in late 2012 and early 2013,
in Groton, Connecticut and Riverhead, New York.
These meetings allowed public input on the potential
designation of one or more dredged material disposal
sites. Both featured speakers from the NY DOS, CT
DEEP, and the Army Corps of Engineers. Report of
the Public Scoping Meetings at 19. At one of those
meetings, which was attended by NY DOS and New
York Department of Environmental Conservation
(“NY DEC”), EPA stated that it was screening for
potential sites using a Zone of Siting Feasibility
(“ZSF”) extending 25 nautical miles from the known
dredging centers in the eastern Sound—i.e., 25
nautical miles was the maximum haul distance
between the projected dredging locations and
potential disposal site. FSEIS at 888–891. The ZSF
spanned from Guilford, Connecticut on the western
end to Montauk Point, New York, on the eastern end.
FSEIS at 30 (Figure ES-2).
EPA screened 11 potential sites and the “no
action alternative” through a two-tier process. The
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first tier was designed to ascertain which sites within
the ZSF were more or less appropriate than others,
while the second tier was designed to yield specific
follow-up recommendations. To explain this process to
stakeholders and solicit feedback, EPA held two
public meetings in June 2014: one in Riverheard, New
York, and one in New London, Connecticut. EPA then
held two additional meetings in December 2014 to
convey the agency’s findings as memorialized in its
Supplemental Environmental Impact Statement,
including the agency’s oceanography survey results
covering the entire eastern Sound area. EPA
explained that the agency had narrowed the field of
11 potential sites down to six: Cornfield Shoals, New
London, Niantic Bay, Orient Point, Clinton, and Six
Mile Reef. See Report of the Public Scoping Meetings
at 329. In April 2015, EPA published an analysis of
these six sites. AR-9. At that time, EPA explained it
was in fact considering a modified version of the New
London Site, including two new areas reaching
roughly 1.5 nautical miles to the west of the site’s
existing boundaries, called “NL-Wa” and “NL-Wb.” Id.
at 70.
In December 2015, the Corps completed its
Dredged Material Management Plan. The DMMP
projected that between 2015–2045, dredging projects
across the Sound would generate 52.89 million cubic
yards of material, 34 million of which would be finegrained sediment suitable for disposal at an openwater site. The Corps projected that the majority of
the remaining material—roughly 15.5 million cubic
yards—would be sand that could be used for
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beneficial beach use. 1 DMMP at 150.
In April 2016, EPA issued its Proposed Rule for
public comment, and concurrently published its Draft
Supplemental Environmental Impact Statement
(“DSEIS”). AR-5, Proposed Rule (81 Fed. Reg. 24748);
DSEIS. In line with EPA’s April 2015 site analysis, the
Proposed Rule suggested
designating
an
Eastern Sound Disposal Site
(“ELDS”
or
“Eastern Site”) comprised of the western half of the
existing New London Site, coupled with two new
adjacent areas extending roughly a mile and a half to
the west. EPA explained that this site would be
appropriate because unlike the existing Niantic Bay
and Cornfield Shoals sites, it is a containment site,
meaning that disposed sediment would not drift from
the site and contaminate nearby areas. EPA also
asserted the Eastern Site would have minimal
environmental impacts on water quality and benthic
habitat in the eastern Sound compared against the
other candidates. DSEIS at 377–86. Moreover, EPA
pointed out that the existing New London Site had
limited capacity after years of use, the eastern portion
of the site interfered with the New London
Submarine Base, and a more compact site would be
more manageable. Id. at 377. EPA supported the
Proposed Rule with a variety of findings, including:
analysis
of
alternative
sites;
the
physical
oceanography of the eastern Sound; sonar data;
biological data; disposal monitoring data from the
existing New London Disposal Site; a survey of
physical and chemical characteristics of sediment
1 The Corps estimated that the remaining 3.3 million cubic yards
of sediment would be unsuitable for open-water disposal. DMMP
at 150.
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found across the eastern Sound; fish habitat data; the
extensive public involvement throughout the
designation process; and a draft site management and
monitoring plan (“SMMP”) for the prospective
Eastern Site. EPA proposed attaching the same site
use restrictions to the Eastern Site that the agency
had agreed to apply to the Central and Western Sites.
81 Fed. Reg. 24748–01, 24763 (Apr. 27, 2016).
The public comment period in connection with
the proposed designation of the Eastern Site ran from
April 27, 2016 through July 18, 2016. 81 Fed. Reg.
87820, 87832 (Dec. 6, 2016). During this period, the
EPA held four public hearings, all in May 2016. The
agency received over 6,700 letters, emails, petition
signatures, and verbal comments. FSEIS at 68. On the
last day of the public comment period, NY DOS and
NY DEC submitted comments arguing that a new
permanent site designation was unnecessary given
the available capacity at the Central Site, which they
alleged was far more than the 20 million cubic yards
ultimately claimed by the EPA.
In July 2016, based on the Corps’ findings in
the DMMP, EPA amended the site use restrictions for
the Western and Central Sites. On July 18, New York
concurred with EPA’s determination that the
amended designations were consistent to the
maximum extent practicable with the enforceable
policies of New York’s CMP. That same day, New York
submitted a letter to EPA with comments regarding
the proposed Eastern Site, stating that although it
agreed that the same site-use restrictions that were
recently added to the Western and Central Sites
should be applied to the Eastern Site as well, EPA
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should designate the Niantic Bay and New London
Sites as remediation sites—only for use in certain
exigent circumstances—instead of designating a new
long-term site to service the eastern Sound. AR-A-43,
July 18, 2016 Letter at 1–2. New York also objected to
the Eastern Site’s designation on the basis that the
site would be “on top of vessel traffic lanes.” Id. at 3.
In response to New York’s objections, EPA requested
that the Corps take a harder look at projected
dredging needs in the eastern Sound. AR-80. In
September 2016, the Corps provided updated
projections, concluding that a disposal capacity of 20
million cubic yards, based on water volume below a
depth of 59 feet, would likely be sufficient. See FSEIS
at 78.
Two weeks later, pursuant to the CZMA, EPA
sent its consistency determination for the Eastern
Site to New York, arguing that the designation—like
that of the Central and Western Sites—was consistent
to the maximum extent possible with all enforceable
policies within the NY CMP and LWRP. In early
October, New York responded with its objections that
the EPA’s analysis contradicted certain specific
policies contained in the state’s coastal zone
management programs. AR-20, New York’s Objection.
On August 4, 2016, after the public comment
period closed, New York Governor Cuomo sent a
letter to President Obama and EPA indicating that
New York was opposed to any dredged material site
being designated in the eastern region of Long Island
Sound. August 4, 2016, Governor Cuomo Letter. This
was the first time the Governor—or any
representative from New York’s cooperating
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agencies—voiced wholesale opposition to a site in the
eastern Sound. The letter indicated New York’s intent
to initiate legal action to block the designation of the
Eastern Site, and reiterated the State’s position that
the remaining capacity at existing sites obviated the
need for the Eastern Site.
On November 4, 2016, EPA responded to New
York’s Objection, again arguing the Eastern Site was
in fact consistent to the maximum extent practicable
with the enforceable coastal policies of the NYS
Coastal Management Program. AR-22. That same
day, EPA issued its final rule designating the Eastern
Site as a permanent disposal site under the MPRSA.
Notwithstanding EPA’s disagreement with New
York’s objections, the agency agreed to make further
changes to the Eastern Site. In particular, EPA
excluded the portion of the proposed site that
overlapped with the prior New London Site, such that
the designated site included only the adjacent NL-Wa
and NL-Wb areas. 81 Fed. Reg. 87824. The rule was
published on December 6, 2016, and went into effect
on January 5, 2017. 81 Fed. Reg. 87820.
II.
PROCEDURAL HISTORY
New York filed its amended complaint on
October 11, 2017. ECF No. 9. Connecticut moved to
intervene as a defendant on November 30, 2017. ECF
No. 12. The Town of Southold, New York, moved to
intervene as a plaintiff on December 21, 2017, and
filed its complaint in intervention on February 2,
2018. ECF Nos. 14, 18, 21. The County of Suffolk, New
York, moved to intervene as a plaintiff on March 27,
2018. ECF No. 29. EPA filed its answer to the
Southold complaint on March 26, 2018, and its
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answer to Suffolk on June 6, 2018. ECF Nos. 27, 43.
Connecticut filed its answer to the Southold
complaint on March 29, 2018. ECF No. 31.
Plaintiffs move for summary judgment on five
claims for relief under the MPRSA, CZMA, and APA.
First, Plaintiffs argue EPA’s determination that a
new site was needed to service the eastern Sound was
arbitrary and capricious. Second, Plaintiffs argue
EPA failed to adequately consider potential
interference with shipping and navigation. Third,
Plaintiffs argue EPA arbitrarily decided to designate a
new site rather than relying on historically used sites.
Fourth, Plaintiffs argue EPA failed to consider the
pollutive effects of disposing dredged materials from
non-federal projects of less than 25,000 cubic yards.
Fifth, Plaintiffs argue EPA’s designation of the
Eastern Site as a permanent dredged material
disposal site was not consistent to the maximum
extent practicable with their coastal zone
management programs. In addition to these claims,
Southold raises three additional claims alleging that
EPA failed to respond to certain public comments.
Defendants and Defendant-Intervenor crossmove for summary judgment and in opposition to
Plaintiffs’ and Plaintiffs-Intervenors’ motions for
summary judgment. Those cross motions are before
the court. 2
2 Suffolk filed a separate brief echoing the arguments made by
New York. Suffolk also highlighted that a 2014 study showed
how the LIS adds between $17 billion and $36 billion in
economic activity. Suffolk Br. at 4. Suffolk also maintains,
without explanation, that “Dumping dredged materials at the
Eastern Site could have a significant harmful effect on this
multi-million-dollar industry.” Id. But for the reasons outlined in
B-20
III.
STANDARD OF REVIEW
The Administrative Procedure Act (“APA”)
provides that a court may set aside an agency’s
findings, conclusions of law or action if they are
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A); Brodsky v. U.S. Nuclear Regulatory
Comm’n, 704 F.3d 113, 119 (2d Cir. 2013). An agency
decision may be deemed arbitrary and capricious: “if
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983); accord Yale-New Haven Hosp.
v. Leavitt, 470 F.3d 71, 79 (2d Cir. 2006). Thus, in
evaluating agency actions under the “arbitrary and
capricious” standard, courts do not ask “whether a
regulatory decision is the best one possible or even
whether it is better than the alternatives.” F.E.R.C. v.
Elec. Power Supply Ass’n, 136 S. Ct. 760, 782, (2016).
Instead, the question is whether the agency’s decision
“was based on a consideration of the relevant factors
and whether there has been a clear error of
judgment.” Marsh v. Ore. Nat. Res. Council, 490 U.S.
360, 378 (1989) (quotation omitted).
Section 4.B.1, EPA considered countervailing evidence showing
that the failure to designate the Eastern Site would in fact result
in economic harms unacceptable to the coastal fishing and
maritime communities.
B-21
Judicial review of agency rulemaking is limited
to the administrative record, and “a court may uphold
agency action only on the grounds that the agency
invoked when it took the action.” Michigan v. EPA,
135 S. Ct. 2699, 2710 (2015). Where, as here, review
of an agency’s action is “bound up with a record-based
factual conclusion,” the reviewing court must
determine whether that conclusion “is supported by
substantial evidence.” Dickinson v. Zurko, 527 U.S.
150, 164 (1999) (quotations omitted). In this context,
substantial evidence means “enough evidence to
justify, if the trial were to a jury, a refusal to direct
a verdict when the conclusion sought to be drawn is
one of fact for the jury.” Defs. of Wildlife v. Jewell, 815
F.3d 1, 9 (D.C. Cir. 2016) (quoting NLRB v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 300
(1939)). Moreover, when an agency has made
predictions at the frontiers of science, a reviewing
court must generally be at its most deferential.
Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council,
Inc., 462 U.S. 87, 103 (1983). Accordingly, the
court’s scrutiny of an agency’s reasoning is
especially narrow “in a technical area” within an
agency’s special expertise. Elec. Power Supply Ass’n,
136 S. Ct. at 782.
The court is also limited to reviewing claims
that have been properly exhausted in the
administrative process. In this case, that pertains to
the public comment period EPA held during the
rulemaking process. Nonetheless, exhaustion will not
bar a claim when “the agency had the opportunity to
consider the very argument pressed by the petitioner
on judicial review.” Nat. Res. Def. Council, Inc. v.
E.P.A., 824 F.2d 1146, 1151 (D.C. Cir. 1987) (en banc)
B-22
(internal quotations omitted). This is consistent with
the
purpose
of
administrative
exhaustion
requirements, which “is to ensure that the agency is
given the first opportunity to bring its expertise to bear
on the resolution of a challenge to a rule.”
Appalachian Power Co. v. E.P.A., 135 F.3d 791, 818
(D.C. Cir. 1998). See also Smith v. Berryhill, 139 S.
Ct. 1765, 1779 (2019) (“a federal court generally goes
astray if it decides a question that has been delegated
to an agency if that agency has not first had a chance
to address the question”); Nuclear Energy Inst., Inc. v.
EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004) (“To
preserve a legal or factual argument, we require its
proponent to have given the agency a ‘fair opportunity’
to entertain it in the administrative forum before
raising it in the judicial one.”).
IV.
DISCUSSION
A. Subject Matter Jurisdiction
Before turning to Plaintiffs’ substantive
challenges, EPA moves to dismiss Plaintiffs’ claims
under the MPRSA for lack of subject matter
jurisdiction. EPA contends that because the MPRSA
does not waive sovereign immunity, Plaintiffs are
barred from bringing standalone claims under that
statute. EPA is incorrect. “Sovereign immunity
shields the United States from suit absent a consent
to be sued that is ‘unequivocally expressed.’” United
States v. Bormes, 568 U.S. 6, 9–10 (2012) (quoting
United States v. Nordic Village, Inc., 503 U.S. 30, 33–
34 (1992)). The MPRSA provides that “any person
may commence a civil suit on his own behalf to enjoin
any person, including the United States and any
other governmental instrumentality or agency (to the
B-23
extent permitted by the eleventh amendment to the
Constitution), who is alleged to be in violation of any
prohibition, limitation, criterion, or permit[.]” 33
U.S.C. § 1415(g)(1). This constitutes an unambiguous
waiver of sovereign immunity for purposes of
Plaintiffs’ second, third, and fourth claims, each of
which claim that EPA violated certain criteria
promulgated under Sections 1412 and 1413. See Town
of Huntington v. Marsh, 859 F.2d at 1143. Thus, this
court has jurisdiction to review Plaintiffs’ standalone
MPRSA claims.
In any event, as all parties agree, this court
has subject matter jurisdiction over each of Plaintiffs’
claims under the APA. Indeed, it is axiomatic that the
APA embodies a “basic presumption of judicial
review,” Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967). See also Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 670 (1986) (In determining
whether a suit can be brought under the APA, “[w]e
begin with the strong presumption that Congress
intends judicial review of administrative action.”).
This “presumption may be rebutted only if the
relevant statute precludes review, 5 U.S.C. §
701(a)(1), or if the action is “committed to agency
discretion by law, § 701(a)(2).” Weyerhaeuser Co. v.
U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018).
Neither the MPRSA nor the CZMA triggers these
exceptions. See Lincoln v. Vigil, 508 U.S. 182, 191–92
(1993) (judicial review is precluded where a standard
of review would be impossible to devise).
Although the APA does not itself confer subject
matter jurisdiction, see Califano v. Sanders, 430 U.S.
99, 106–07 (1977), the Federal Question Statute, 28
B-24
U.S.C. § 1331, confers jurisdiction over a suit that
“arises under” a “right of action” created by the APA.
See Bowen v. Massachusetts, 487 U.S. 879, 891 n.16
(1988) (“[I]t is common ground that if review is proper
under the APA, the District Court ha[s] jurisdiction
under 28 USC § 1331.”); see also Sharkey v.
Quarantillo, 541 F.3d 75, 83–84 (2d Cir. 2008) (same).
Thus, “[t]he ‘right of action’ in such cases is expressly
created by the [APA], which states that ‘final agency
action for which there is no other adequate remedy in
a court [is] subject to judicial review,’ at the behest of
‘[a] person ... adversely affected or aggrieved by
agency action.’” Japan Whaling Ass’n v. Am. Cetacean
So’y., 478 U.S. 221, 230 n. 4, (1986) (quoting 5 U.S.C.
§§ 702, 704). Here, Plaintiffs’ second, third, and
fourth claims allege EPA disregarded its legal
obligations under the MPRSA, and the agency’s
decision- making process was otherwise arbitrary,
capricious, or not in accordance with the law. Such
claims are plainly within the ambit of the APA.
B. Plaintiffs’ Challenges to the Eastern Long
Island Disposal Site
1. Need for a New Site in the Eastern
Sound
Plaintiffs’ first allegation is that EPA failed to
justify its determination that a new site was needed
in the eastern Sound. Specifically, Plaintiffs allege
EPA inflated the capacity needed in the Sound by: (1)
unreasonably including sand that will be used for
beach nourishment; (2) understating the remaining
capacity at the Central Site by approximately 16
million cubic yards; and (3) unreasonably assuming
that material dredged from the eastern Sound area
B-25
could not be disposed of at a more distant, existing
site, such as the Rhode Island site. ECF. No. 9,
Amended Complaint ¶ 146. Plaintiffs now concede
that the EPA did not underestimate disposal capacity
at the Central Site, but maintain their arguments
regarding sand use and the Rhode Island Site. NY
Reply Br. at 19. In response, EPA argues that as a
threshold matter, neither the MPRSA nor the
agency’s implementing regulations require EPA to
justify the need for a new site with reference to
capacity at existing sites. EPA Br. at 31. EPA further
responds that it reasonably concluded that the eastern
Sound’s disposal needs could only be serviced by a
new site in the eastern Sound, rather than preexisting sites farther afield.
a) Obligations Under the MPRSA and EPA
Regulations
EPA is correct that the factors listed in MPRSA
Section 1412(a) are not directly enforceable for
purposes of showing a procedural defect in the
agency’s designation process. As the D.C. Circuit has
explained, EPA “is not required by any provision in
the [MPRSA] to include in the criteria, in any literal
sense, the evaluation factors listed in the [MPRSA] . .
. Rather, [the agency] will have satisfied the
requirements of [1412](a) by considering those factors,
by taking them into account, when [] establish[ing]
the criteria” under Sections 228.5 and 228.6. Nat’l
Wildlife Fed’n v. Costle, 629 F.2d 118, 135 (D.C. Cir.
1980). In this regard, the MPRSA “gives unqualifiedly
broad authority to the Administrator to weigh and
consider the evaluation factors and, to the extent that
he does so, the criteria he promulgates will ‘reflect’
B-26
the factors listed in the Act and the Convention. Id. at
132. Moreover, while the MPRSA directs EPA to
consider “the need for proposed dumping” in
establishing its criteria to designate disposal sites, 33
U.S.C. 1412(a)(A), it does not follow that EPA may
only designate a new site upon a showing that
existing sites lack capacity.
Turning to EPA’s site designation criteria, EPA
must consider of the “[t]ypes and quantities of wastes
proposed to be disposed of[.]” 40 C.F.R. § 228.6. This
criterion ensures that an assessment of dredging and
disposal needs is baked into the designation process,
and that the agency justifies each new site with
reference to such needs. Furthermore, EPA has a
separate regulation, aptly titled “Need for Ocean
Dumping,” that requires the need for disposal to be
established before a dumping permit is awarded. 40
C.F.R. Part 227, Subpart C. At any rate, EPA did in
fact consider dredging needs. Accordingly, the
question is whether EPA’s determinations regarding
the eastern Sound’s dredging needs were consistent
with the “reasoned decisionmaking” mandated by the
APA. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52. To
adjudicate that question, it is first helpful to consider
why and how EPA used the ZSF in the designation
process.
b) The Zone of Siting Feasibility in the
Eastern Sound
EPA announced its ZSF for the eastern Sound
at a January 2013 meeting, at which New York DOS
and DEC representatives were present. Establishing
the ZSF was a standard step in the designation
process, outlined in EPA’s 1986 “Ocean Dumping Site
B-27
Designation Delegation Handbook.” AR-A 061,
Designation Handbook at 77. Following the Handbook
and prior practice, EPA explained it would use the
same ZSF that all parties had agreed was reasonable
with respect to the Western and Central designation
processes—25 nautical miles, measured from known
dredging centers. FSEIS at 891. EPA noted that
metric was chosen to incorporate what the agency had
learned through the Corps’ analysis of dredging
needs. Id.; Report of the Public Scoping Meetings at
222. EPA further justified the ZSF on the grounds that
more distant sites would require longer, more
expensive trips, increasing air pollution and elevating
the risk of collisions and spills. EPA solicited
objections to the ZSF, but no one, including Plaintiffs’
representatives, raised any. 3 FSEIS at 891. It bears
emphasizing that at this point, EPA was not
determined to designate a site in the eastern Sound.
Instead, as part of EPA’s holistic approach to
dredging across the entire Sound, and in tandem with
the Corps’ work with respect to the DMMP, the
agency had simply decided to compare the viability of
disposing material from the eastern Site at various
candidates across the Sound.
EPA again memorialized its justification for the
New York argues that its current challenge to the ZSF was
preserved by a statement made by Fishers Island resident
Marguerite Purnell, asserting the ZSF was an “artificial
construct.” FSEIS at 4222. Putting aside that New York never
expressed this view, Ms. Purnell’s opinion did not require EPA to
justify use of the ZSF, which the agency has never held out as a
statutory or regulatory requirement. See Pub. Citizen, Inc. v.
F.A.A., 988 F.2d 186, 197 (D.C. Cir. 1993) (comments must do
more than state disagreement with an agency’s premise or
conclusions).
3
B-28
ZSF in its Draft Supplemental Environmental Impact
Statement and Proposed Rule. See DSEIS at 98; see
also AR-A 061 at 77. EPA highlighted that economic
and environmental costs would be exacerbated by the
inability of large barges to transport dredged material
from many of the shallow, non-navigable areas that
required dredging in the eastern Sound. See DSEIS at
98. Based on these considerations, EPA asserted that
sites beyond the ZSF “would be economically and
operationally infeasible.” Id. New York again voiced
no objection. New York’s silence is particularly
significant because it was clear that applying the ZSF
ruled out the possibility that EPA would conclude that
the Central, Western, and Rhode Island Sites were
feasible alternatives to a site in the eastern Sound,
regardless of their available capacity.
Consistent with the above, EPA concluded that
without a new site in the eastern Sound, dredging
would either be blocked—endangering public safety,
economic activity, recreation and national security
could suffer—or dredging would proceed, causing
significant environmental and economic problems.
Critically, the Central Site and the Rhode Island Site
are 34.7 nautical miles and 44.5 nautical miles from
New London Harbor, respectively. The Western Site
is even farther, approximately 59 nautical miles west
of New London Harbor. 81 Fed. Reg. 87820–01, 87822
(Dec. 6, 2016). EPA found that requiring dredging
centers in the eastern Sound to transport their
material to those sites “would likely render many
dredging projects too expensive to conduct and needed
dredging would not take place.” FSEIS at 45. See also
81 Fed. Reg. at 87822.
B-29
The record plainly supports that conclusion.
The ferry, shipbuilding, and boating industries in the
eastern Sound depend on occasional dredging of the
area’s waterways to maintain the integrity of their
routes. To that end, EPA received public comments
stating that marinas on the Connecticut coastline
have been essentially “choked off” by the lack of a
nearby disposal site. Report of the Public Scoping
Meetings at 77. The national security implications
were even more stark. For example, the U.S. Navy
Submarine Base is expected to generate 425,000 cubic
yards of dredged material by 2025. The Corps
estimated that disposal of that material at the
Central Site would cost nearly $25 million, as opposed
to less than $12 million at the Eastern Site. 81 Fed.
Reg. at 87820-01. Disposal at the Western or Rhode
Island Sites would be even more expensive in
economic
and
environmental
terms.
It
is
unsurprising, therefore, that the U.S. Navy
Submarine Base in New London, as well as Electric
Boat, one of Connecticut’s largest employers and
maker of the Navy’s Columbia class nuclear
submarine, support designation of the Eastern Site.
See Conn. Br. at 14-15. On this record, EPA has
fulfilled its obligation to explain its reasoning, and the
“court will not second-guess EPA’s analysis nor
‘undertake [its] own economic study.’” Nat’l Wildlife
Fed’n v. E.P.A., 286 F.3d 554, 565 (D.C. Cir. 2002)
(alteration in original) (citation omitted). Against this
backdrop, I turn to the two specific defects Plaintiffs
argue undermine EPA’s determination that a new site
is needed in the eastern Sound.
c) Beneficial Use of Dredged Sand
B-30
Plaintiffs allege EPA undercounted the portion
of dredged sand that would likely be eligible for
beneficial uses such as beach replenishment. NY Br.
at 45–47. This alleged defect relates to the updated
estimate EPA requested from the Corps in response to
comments from New York asserting the DMMP
overestimated how much disposal capacity that the
eastern Sound would need over the next 30 years.
When New York made this same claim during the
public comment period, EPA had two rebuttals. First,
EPA reiterated that because the agency was
concerned
with
ensuring
operationally
and
economically feasible disposal for material dredged in
the eastern Sound, the relevant consideration was
how much sand would be dredged from the eastern
Sound, not the entire Sound. FSEIS at 3528–3531; 81
Fed. Reg. at 87825–27. Second, EPA explained that in
view of the uncertainties inherent in a 30-year
projection, and the costs of underestimating disposal
needs, the agency had taken a conservative approach
to protect against that contingency. Id. Nonetheless,
in response to these comments by New York and
others, EPA requested that the Corps take a closer
look at the projected dredging disposal needs in the
eastern Sound. See 81 Fed. Reg. 87822; FSEIS at 78,
3415; AR-A 074 at 2.
The Corps’ updated analysis, produced in
September 2016, concluded that a site with only 20
million cubic yards would be sufficient:
[T]he revised projected disposal capacity need
of approximately 20 million cy is based on the
need to accommodate approximately 12.5
million cy of suitable fine- grained sediment;
B-31
2.8 million cy from potential improvement
(deepening) dredging projects; 1.8 million cy of
shoal material resulting from extreme storm
events; 1.1 million cy of sand (recognizing that
beach nourishment may not be a practicable
alternative for all 9.1 million cy of the
projected sand); and 160,000 cy for the
excavation of Confined Aquatic Disposal cells
(for material unsuitable for open- water
disposal); for a total of 18,364,500 cy; and a
bulking factor of approximately 10 percent of
the total, which brings the total to about 20
million cy.
81 Fed. Reg. at 87824 (emphasis added). EPA reviewed
the Corps’ updated projections and agreed that the
eastern Sound could be serviced by a disposal site with
20 million cubic yards of capacity.
New York correctly points out, and EPA
concedes, that whereas the agency had previously
reasoned that all dredged sand could require openwater disposal, the Corps’ September 2016 update
assumed that only 12% dredged sand would likely
require open-water disposal. New York suggests that
“[i]f this assumption were applied to the original
Sound-wide projection used to project disposal
capacity need not only for an Eastern Sound site, but
for the Western and Central Sites, the projection of
dredged material relied on in the Proposed Rule
would drop from 49.6 million cubic yards to 36.26
million cubic yards.” New York Reply at 16. According
to New York, EPA therefore took two different
approaches to the same data point, rendering the
B-32
designation process arbitrary and capricious. NY Br.
at 45–57. New York is incorrect.
EPA did not arbitrarily apply two different
standards to the same data point at different times.
Rather, EPA independently reviewed the Army Corps
of Engineers’ updated projections— which EPA
requested in response to New York’s concerns—and
decided that based on those projections, the Eastern
Site could be reduced from 22.6 to 20.2 million cubic
yards. Without question, part of EPA’s rationale was
its conclusion that most of the sand dredged from the
eastern basin could likely be used for beneficial uses
like beach re-nourishment. But EPA’s updated
analysis was more refined than its initial review in
other ways as well. For instance, it credited the Corps’
updated finding that storms and other extreme
weather events could produce more sediment than the
DMMP initially projected. 81 Fed. Reg. at 87822,
87825–26; FSEIS at 3521–23, 3528–29. In addition,
EPA credited the Corps’ 10% volume bulking factor to
more accurately account for how sediment behaves
once dumped in an open-water site. See 81 Fed. Reg.
at 87823–24; FSEIS at 3529–30; AR-A 074 at 7–8. At
the same time, EPA realized that one million cubic
yards of material projected to be dredged near
Guilford could be omitted from the dredging needs
estimate for eastern Long Island Sound because
Guilford is located closer to the Central Site, and
would likely be disposed of at that site, rather than
the Eastern Site. FSEIS at 78; AR-A 074 at 3. Having
responded to New York’s comments regarding the
eastern Sound’s dredging needs, EPA was under no
obligation to revisit its Sound-wide projection, which
was not the basis for its determination that a new site
B-33
was needed in the eastern Sound. See Friends of
Capital Crescent Trail v. Fed. Transit Admin., 877
F.3d 1051, 1063 (D.C. Cir. 2017) (“Agencies need not
reanalyze
alternatives
previously
rejected,
particularly when an earlier analysis of numerous
reasonable alternatives was incorporated into the
final analysis and the agency has considered and
responded to public comment favoring other
alternatives.”). Forcing EPA to update the estimated
amount of sand that may be beneficially repurposed
Sound-wide “would be an idle and useless formality”
without any impact on the Final Rule. Li v. I.N.S.,
453 F.3d 129, 136–37 (2d Cir. 2006) (quoting NLRB v.
Wyman–Gordon Co., 394 U.S. 759, 766 n.6 (1969)).
d) The Rhode Island Site
The second defect Plaintiffs allege with respect
to EPA’s determination that a new site was needed in
the eastern Sound is that EPA ignored the feasibility
of relying on the Rhode Island Sound Disposal Site. 4 I
have already agreed that EPA’s ZSF was reasonable
and need not retread that territory here. Nonetheless,
I address the arguments New York raises with respect
4 New York’s first claim for relief alleges that EPA “excluded the
possibility of disposing of any material from the eastern Sound at
the Rhode Island Site, even though the Sound extends well into
Rhode Island, and that site has ample remaining capacity and
lies only 44 nautical miles from the New London Harbor
dredging center.” Amended Complaint ¶ 146. While New York’s
opening brief follows this argument, New York’s Reply appears
to broaden this allegation to encompass the Central and Western
Sites, in addition to the Rhode Island Site. See New York Reply
at 26. Because the Complaint governs, and because the Central
and Western Sites are addressed in the discussion of New York’s
third claim, see infra at Section IV.B.3, my discussion here
focuses on the Rhode Island Site.
B-34
to the Rhode Island Site specifically. First, New York
argues EPA arbitrarily ignored the fact that the
Rhode Island Site has previously been deemed a
suitable option for disposal of dredged spoils from two
portions of the Eastern Sound—Mystic Harbor and
Little Narragansett Bay. Second, New York argues
that EPA’s decision not to rely on the Rhode Island
Sound Site was contrary to the agency’s own
statement that it was designating the eastern Site to
service, among other areas, Rhode Island’s waters.
Both arguments are without merit.
With respect to Mystic Harbor, the Corps
estimated that federal maintenance and improvement
projects will require dredging approximately 550,000
cubic yards of fine sediment suitable for open-water
disposal over the next 30 years. DMMP at 5159.
While Mystic Harbor is approximately seven nautical
miles from the Eastern Site, it is considerably farther
from the Rhode Island Site. DMMP at 5242.
Unsurprisingly, when the Corps compared the
estimated cost of disposing sediment from Mystic
Harbor at the New London Site against alternatives,
the Rhode Island Site was not even among the 15 most
feasible alternative sites in terms of cost and available
capacity. DMMP at 242. (That same alternative site
screening estimated that disposal at the Central and
Western Sites would be more than two and three
times as expensive as disposal at the New London
Site, respectively.) This finding was consistent with
the Corps’ estimate that disposing of sediment
dredged from New London Harbor at the Central or
Rhode Island Sound Sites would be 2.7 times the cost
of using the New London Site. Id. at 255. Similarly,
the Corps’ analysis demonstrated that disposing of
B-35
fine-grained material from Little Narragansett Bay at
the Rhode Island Site would cost 77% more than at
the New London Site. Id. at 239. Beyond Mystic
Harbor and Little Narragansett Bay, the Corps’
analysis presents a clear picture that even though the
Rhode Island Site has an estimated remaining
capacity of 16.5 to 19.5 million cubic yards, it would
be prohibitively expensive for federal and private
dredgers in the eastern Sound. Id. at 164. As just one
example, the Corps estimated that disposing of the
785,300 cubic yards of fine sediment from federal
navigation maintenance projects in New London
Harbor would be 269% more expensive at the Rhode
Island Site. Id. at 576.
Finally, EPA simply did not designate the
Eastern Site to serve all of Rhode Island waters.
Instead, EPA designated the Eastern Site to serve the
eastern Sound, which includes a small portion of
Rhode Island’s waters near Block Island Sound. See
81 Fed. Reg. at 24762; FSEIS at 63–64 (Fig. 1-2), 73.
In fact, EPA omitted projects from this small area in
its estimates for eastern Sound dredging disposal
needs precisely because dredging centers there would
likely use the Rhode Island Site instead of the Eastern
Site. See 81 Fed. Reg. at 24750; FSEIS at 102. For
these reasons, Plaintiffs’ first claim fails.
2.
Interference
Navigation
with
Shipping
and
Plaintiffs’ second claim is that EPA failed to
consider vessel traffic across the Eastern Site, and
Cross Sound Ferry’s route between New London and
Orient Point in particular. Plaintiffs allege that EPA
failed to respond to this same concern during the
B-36
public comment period, and that these defects
violated EPA’s obligation to apply certain general and
specific criteria related to navigation, Sections
228.5(a) and 228.6(a)(8). See NY Br. at 50. Under
Section 228.5(a), “[t]he dumping of materials into the
ocean will be permitted only at sites or in areas
selected to minimize the interference of disposal
activities with other activities in the marine
environment, particularly avoiding areas of existing
fisheries or shellfisheries, and regions of heavy
commercial or recreational navigation.” 40 C.F.R. §
228.5(a). 5 Next, under Section 228.6(a)(8), EPA is
required to consider a proposed site’s potential
“[i]nterference with shipping, fishing, recreation,
mineral extraction, desalination, fish and shellfish
culture, areas of special scientific importance and
other legitimate uses of the ocean.” Id. § 228.6(a)(8).
EPA’s Final Rule argues the site satisfies
provisions for five reasons: (1) the site is not located
in shipping lanes or any other region of heavy
commercial or recreational navigation; (2) the site is
not located in an area that is important for commercial
or recreational fishing or shellfish harvesting; (3) use
of the site would have minimal potential for
5
New York and EPA disagree about whether Section 228.5(a)
requires that the EPA “avoid” regions of heavy commercial or
recreational navigation, or whether it merely requires the
agency to select sites “to minimize the interference with” those
regions. But to the extent the provision is ambiguous, this court
defers to EPA’s reasonable interpretation in view of the fact that
the agency “conduct[ed] factual investigations . . . consult[ed]
with affected parties, [and] consider[ed] how their experts have
handled similar issues over the long course of administering a
regulatory program.” Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019)
(plurality opinion).
B-37
interfering with other existing or ongoing uses of the
marine environment in and or around the ELDS,
including lobster harvesting or fishing activities; (4)
the adjacent, and now closed, NLDS has been used for
dredged material disposal for many years and activity
there has not significantly interfered with the uses
identified in this regulation, but mariners in the area
are accustomated to dealing with the presence of a
dredged material disposal site; and (5) time-of-year
restrictions imposed to protect fishery resources will
typically limit dredged material disposal activities to
the months of October through April, thus further
minimizing any possibility of interference with the
various maritime activities in the area. 81 Fed. Reg.
at 87833.
The record plainly demonstrates that the
designation of the Eastern Site comports with EPA’s
navigation-related regulatory criteria. Notably,
although New York insists the site will threaten Cross
Sound Ferry’s route between New London and Orient
Point, Cross Sound itself has filed an amicus brief—
along with nearly a dozen other ferry and boating
operators—rejecting that exact argument as “entirely
false.” ECF No. 78, Ferry Br. at 17. As Cross Sound
states, “[f]erries are not confined to a discrete specific
route, but rather operate in a three-mile area when
travelling between Connecticut and New York, the
exact route being different for every crossing
depending on a variety of factors including weather
conditions, visibility, sea state, state and magnitude of
tide and current, and marine traffic conditions.” Id. at
17–18 (emphasis added). Thus, any given ferry can
adjust its route in the unlikely event that a scow is
operating in its path. In fact, Cross Sound’s ferries
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never experienced any problems from the use of the
New London Disposal Site, and there is no reason to
expect the Eastern Site will present distinct
challenges. Id. at 18.
Cross Sound and other navigation companies
made their support for the Eastern Site known from
the beginning of EPA’s scoping and screening process.
At an initial public scoping meeting, the
representative of Cross Sound and other ferry
companies commented:
Economically, if dredging projects are to occur
in Eastern Connecticut and there is not an
Eastern Long Island Sound disposal area,
those dredge spoils have to be towed to either
the Central Long Island Sound disposal site
or the Western Long Island Sound disposal
site. The cost of that additional towing can
more than double the cost of the dredging.
That
is
the
economic
impact. The
environmental impact of towing those dredge
spoils across Long Island Sound can be
measured in air quality impacts. To tow those
dredge spoils a tug has to tow that scow. That
tug burns diesel fuel. The amount of diesel fuel
that it takes to tow a scow from Eastern
Connecticut to these disposal sites, as
compared to towing them right to an Eastern
Long Island Sound disposal site, is
significant.
Report of the Public Scoping Meetings at 76. 6 No one
contested this comment or its clear implications
6 Wronowski made these same points in a contemporaneous letter
submitted to the EPA. AR-A 105 at 2.
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regarding the need for a site in the eastern Sound.
Thus, there is no evidence that EPA’s determination
that the Eastern Site would not interfere with such
navigation was a “post hoc” or “convenient litigating
position.” Christopher v. SmithKline Beecham Corp.,
567 U.S. 142, 155 (2012) (quotation omitted). To the
contrary, EPA’s position is supported by multiple
reliable sources, including Cross Sound itself.
Ignoring this evidence, New York focuses on a
single map (the “Density Map”) EPA used in public
meetings in 2013, which New York argues misled the
agency’s consideration of navigation near the Eastern
Site. New York asserts the Density Map
misrepresented that data from 2009 was from 2012,
and, separately, undercounted vessel traffic in the
vicinity of the Eastern Site. NY MSJ at 52-59. These
arguments are without merit.
When EPA presented the Density Map in May
2013, the agency accompanied the map with a note
stating, “[t]he density grid was created using
tracklines that were generated from the 2009 United
States Automatic Identification System Database; the
data grids represent only 339 days in 2009.” FSEIS at
990.
The
meeting’s
attendees,
including
representatives from NY DOS, were on clear notice
that the map was based on 2009 data, and made no
objections or comments demanding more current
information. EPA Br. at 56. Next, while the Density
Map was used in the May 2013 to convey a snapshot
of traffic patterns, it was not the basis for EPA’s
determination that the Eastern Site would
accommodate regional navigation pursuant to the
criteria under Sections 228.5 and 228.6. Indeed, in
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support of that conclusion, EPA relied on an array of
sources, including more current data provided by the
Corps, the Coast Guard, and the ferry operators
themselves. EPA Br. at 59–60. New York has not
shown how EPA’s reliance on these sources, much less
the agency’s conclusion that the Eastern Site posed no
threat to navigation in the site’s vicinity, was
unreasonable. See Baltimore Gas, 462 U.S. at 103.
Finally, Plaintiffs have no answer to EPA’s
argument that time-of-year restrictions will ensure
that scows will not interfere with navigation. These
restrictions will limit dredge disposal at the Eastern
Site to October through April, when ferry traffic is
considerably lower. And during these months, notice
will be provided to mariners in the area when disposal
occurs. Combined with the fact that the shallowest
disposal depth permitted at a designated site would
be 59 feet, there is no reason to expect that the
disposal site will present navigational challenges to
the eastern Sound’s boating and shipping
communities. 81 Fed. Reg. at 87833; FSEIS at 43. On
these facts, Plaintiffs’ second claim is without merit.
3.
EPA’s Consideration of Previously Used
Disposal Sites
Plaintiffs’ third claim is that designation of the
Eastern Site violated the MPRSA and was arbitrary
and capricious because “it was feasible to designate
the historically used Niantic Bay Site, or use the
designated Western, Central, and Rhode Island
Sites.” Amended Complaint ¶¶ 48–49. Here, New
York does not press its claim that EPA should have
designated the Niantic Bay Disposal Site, but
continues to assert that EPA arbitrarily excluded the
B-41
Rhode Island Site from consideration. 7 New York
further argues that the agency disingenuously labeled
the Eastern Site as a historically used site insofar as
it incorporated a portion of the NLDS.
EPA responds first by reiterating that it was
not feasible to designate the Western, Central, or
Rhode Island Sites for disposal of material dredged in
the eastern Sound. I agreed with EPA’s reasoning to
that effect with respect to Plaintiffs’ first claim and do
so again here. Next, EPA responds that this claim
must fail because there is no requirement to designate
available historically used sites. EPA is correct on this
point as well.
Contrary to what Plaintiffs suggest, EPA’s site
selection criteria do not require the agency to
designate historically used sites with remaining
capacity regardless of other considerations. One of
EPA’s general site selection criterion is that the agency
“will, wherever feasible, designate ocean dumping
sites beyond the edge of the continental shelf and
other such sites that have been historically used.” 8 40
EPA’s April 2016 Proposed Rule indicated that EPA was
considering the possibility of designating one or two additional
dredged material disposal site alternatives within the ZSF—the
Niantic Bay Disposal Site (“NBDS”) and the Cornfield Shoals
Disposal Site (“CSDS”). See 81 Fed. Reg. 24748, 24749. EPA
considered designated these sites, individually or together, as
either a substitute for, or a complement to, the Eastern Site. But
EPA determined they were less suitable than the Eastern Site
for a variety of reasons. Indeed, the public comment period
elicited adamant opposition to designating the Niantic Bay Site.
See FSEIS at 3699.
7
8 EPA determined that because the continental shelf lies as far
from the eastern Sound dredging centers as the WLDS, CLDS,
B-42
C.F.R. § 228.5(e). New York emphasizes the word
“will,” New York Br. 68, suggesting the provision
constitutes a mandate, even though “will” is
immediately qualified by the phrase “wherever
feasible.” New York argues that in interpreting
feasibility
under
Section
228.5(e),
EPA
overemphasized economic cost, pointing to the
following passage from EPA’s 1986 Ocean Dumping
Site Designation Delegation Handbook:
The distance from the dredge area to
dump site affects the costs of ocean disposal
operations. However, cost of disposal cannot
be the main consideration used for locating a
site. Alternate siting at greater distances from
the dredging area must be considered when
they offer environmental benefits at
reasonable increases in costs.
AR-A-61, Designation Handbook at 77. New
York argues that particularly in light of prior
instances of eastern Sound dredging centers shipping
material to the Central and Western Sites, 9 EPA
arbitrarily ruled out relying on these sites in the
future.
But New York’s reliance on the Designation
Handbook is misplaced. In a nearby passage, the
Handbook also states that “[f]or new sites, the best
site will be selected, with the best site being defined as
and RISDS, a site there would be similarly impractical. FSEIS at
45.
9
I observe that prior disposal of certain eastern Sound material
at the Central and Western Sites indicates nothing about
whether other projects were stalled or cancelled, let alone
whether those sites are viable options going forward.
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the candidate site that has the least adverse
environmental impact at acceptable economic cost.” Id.
at 60 (emphasis added). Read in its entirety, the
Designation Handbook supports EPA’s holistic
approach to its regulatory criteria. As explained
above, see supra at Section IV.B.1, these
considerations reasonably supported EPA’s conclusion
that “candidate disposal sites more than 25 nautical
miles (nmi) (46 km) from a dredging center in the
eastern Long Island Sound were determined to be
neither economically nor operationally feasible.”
DSEIS at 98. See also 81 Fed. Reg. at 24749–50,
24762. Incidentally, the only way EPA could have
come to a different conclusion would have been to
ignore the dredging needs of eastern Sound
communities.
Turning to the historically-used sites within the
ZSF, New York’s claim is difficult to square with the
fact that EPA shifted the Eastern Site westward
precisely because New York objected to adding
dredged material to the existing New London Site.
EPA Response to New York Objection at 15. After
New York made this objection:
EPA decided to shift the boundaries of the
ELDS to the west so that the site would be
entirely outside of the submarine transit
corridor into the Thames River, the existing
[New London Disposal Site], and New York
state waters, as well as farther from Fishers
Island . . . EPA also adjusted the boundaries
of the ELDS to exclude two hard-bottom areas
that have the potential to provide relatively
more valuable marine habitat. These
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modifications to the site boundaries reduced
the area of the ELDS from two square
nautical miles (nmi2) to approximately a.3
nmi2), and the capacity of the site from
approximately 27 mcy to 20 mcy.
Id. In addition, EPA’s exclusion of certain
portions of the New London Site aimed to protect
sensitive lobster habitat close to Fishers Island. 81
Fed. Reg. at 87833, 87838.
In sum, EPA properly balanced the preference
for historic sites against the other general and specific
criteria enumerated in Sections 228.5 and 228.6,
which reflect the full range of environmental values
embedded in the MPRSA. 81 Fed. Reg. 87822–23.
4.
EPA’s Consideration of
Projects Under 25,000 cy
Non-Federal
Plaintiffs’ fourth claim is that EPA’s failure to
consider the environmental impacts of dredged
materials exempt from MPRSA standards rendered
the designation of the Eastern Site procedurally
flawed. NY Br. at 69. Specifically, Plaintiffs assert EPA
ignored dredged material that will be sourced from
non-federal projects of less than 25,000 cubic yards,
triggering only the testing standards of the Clean
Water Act, and not the MPRSA standards that govern
disposal of all projects over 25,000 cubic yards.
Plaintiffs further insist that due to this lapse in EPA’s
in decision- making there is a “very real possibility
that millions of cubic yards of dredge spoils destined
for the Eastern Site will be screened for suitability
under the Clean Water Act, not the [MPRSA].” Id. at
70. Finally, Plaintiffs argue that EPA’s alleged failure
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to account for the smaller non-federal projects
undermines EPA’s “assumption” that all dredged
material dumped at the Eastern Site will meet the
standards of the MPRSA. Id.
Southold Commissioner Scott Russell raised the
substance of this claim in a public hearing on May 25,
2016. Russell asked three questions: (1) what is the
sampling protocol of the sediments from non-Federal
facilities; (2) how do the Federal and non-Federal
sediment testing protocols compare to each other; and
(3) what are the quality control measures on testing
of non-Federal projects? FSEIS at 3696. Russell also
submitted written comments and questions on behalf
of Southold.
EPA responded to Southold’s comments, and
explained the overlapping regulatory structures of the
CWA and MPRSA as follows:
The commenter asks if the protocols are the
same for non-federal and federal projects. . .
[and] expresses concern that material from
smaller non-federal dredging projects might
still be placed in open water with
management steps under Section 404 of the
Clean Water Act (CWA), despite the
material’s potential to cause adverse impacts.
In addition, [he] is concerned that non-federal
projects may be “segmented” into smaller
projects involving 25,000 cubic yards or less in
order to remain below the qualifying
threshold for the MPRSA and to avoid
addressing the cumulative adverse impacts
of multiple events . . . The evaluation of
dredged material proposed for open-water
B-46
disposal is governed by the requirements of
USEPA’s sediment quality criteria regulations
found at 40 CFR Part 227 as well as a set of
memoranda or “manuals” developed under the
regulation to provide more detailed guidance .
. . The manuals provide national technical
guidance for determining the suitability of
dredged material for disposal in ocean and
inland waters through physical, chemical, and
biological
evaluations.
The
manuals
recommend standardized testing procedures
and, among other things, provide guidance on
choosing appropriate test organisms for
bioassay testing . . . In addition, the Regional
Implementation Manual (RIM), consistent
with the Green Book and the Inland Testing
Manual, provides specific testing and
evaluation methods for dredging projects in
New England and outlines the USEPA and
USACE coordination process.
FSEIS at 3550–3553. Plaintiffs’ claim that EPA failed
to consider the disparate testing regimes under the
CWA is impossible to square with EPA’s response to
Southold’s comments.
There is no basis for New York’s claim that
EPA’s treatment of potential small, non-federal
dredging was procedurally defective. Under the
Ambro Amendment, it is clear that the MPRSA
applies to the dumping of dredged material by federal
agencies, or by private parties dumping more than
25,000 cubic yards of dredged material. But it is
equally clear that Congress left testing of sediment
proposed through smaller, non-federal projects to the
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regulatory framework of the Clean Water Act. That is
not to say that Congress failed to consider small nonfederal projects. To the contrary, Representative
Ambro himself noted that federal projects and private
operations dredging more than 25,000 cubic yards
comprised the overwhelming majority of dredging
activity in the Sound. Town of Huntington, 859 F.2d
at 1139 (citing 126 Cong. Rec. H34063 (Dec. 13, 1980)
(remarks of Rep. Ambro)). Thus, to the extent the
MPRSA may demand more stringent testing than the
CWA, that is “because federal law makes it so.” Conn.
Br. at at 33. EPA simply enforced the mandatory
limits of federal law, which in general mean “that
disposal in the Long Island Sound is controlled by
more stringent standards than apply to dredged
material disposal anywhere else.” Id. To the extent
New York disagrees with the scope of the MPRSA,
such disagreement does not constitute a viable legal
claim.
Moreover, throughout the screening and
designation process, EPA repeatedly pointed out that
Section 404 of the Clean Water Act would cover
disposal of dredged material from smaller non-federal
projects. Plaintiffs offer no substantive attack on the
Clean Water Act’s testing standards, other than to
say they are deficient because they are less stringent
than those under MPRSA. New York also overlooks
the permitting process’s gatekeeping function. Section
1344(b) of the CWA directs the Corps to issue permits
for discharges of dredged or fill material based on the
application of EPA guidelines, published at 40 C.F.R.
Part 230. These guidelines establish that: (1) no
discharge will be permitted if “there is a practicable
alternative to the proposed discharge which would
B-48
have less adverse impact on the aquatic ecosystems,
so long as the alternative does not have other
significant adverse environmental consequences,” 40
C.F.R. § 230.10(a); and (2) “no discharge . . . shall be
permitted which will cause or contribute to significant
degradation of the waters of the United States.” Id. §
230.10(c). Thus, under both the MPRSA and CWA,
disposal cannot take place until a project-specific
review has been conducted and the required permit or
authorization has been issued. And as New York
concedes, EPA consults “the highly technical
EPA/Army Corps Regional Implementation Manual
for the Evaluation of Dredged Materials Proposed for
Disposal in New England Waters, a 2004 agency
guidance manual,” when making such decisions. NY
Br. at 77; AR-A-208. On this record, it is unclear what
else EPA could have done beyond explaining the
regulatory framework related to sediment testing and
incorporating the Regional Implementation Manual’s
protocols into its decision-making process. Indeed,
New York concurred in site use restrictions for the
Central and Western Sites that recognized the Ambro
Amendment’s scope and limitations. 40 C.F.R. §§
228.15(b)(4)(vi), 228.15(b)(5)(vi).
Finally, Plaintiffs’ concerns about segmentation
and cumulative impacts are premature. Permit
actions under Section 404 of the CWA trigger NEPA
review, providing opportunities to raise these exact
issues. DSEIS at 58. To the extent segmentation of
non-federal projects poses a hypothetical risk, the
courts stand ready to guard against such
gamesmanship if and when it arises. See Town of
Huntington, 859 F.2d at 1140 (voicing “serious doubts
as to whether the Corps should have considered the
B-49
[dredging] Applicants separately” where the total
yardage of waste collected among them would exceed
25,000 cubic yards). Until that juncture, Plaintiffs
cannot complain that EPA abided by the applicable
statutory scheme. Pub. Citizen, Inc., 988 F.2d at 197
(D.C. Cir. 1993) (agencies need not respond to
comments raising speculative problems).
C. Southold’s Additional APA Arguments
In addition to joining New York’s claims, Southold
argues EPA arbitrarily and capriciously failed to
respond to certain comments submitted by Town
Supervisor
Russell,
Fishers
Island
resident
Marguerite Purnell, and the Fishers Island
Conservancy. An agency “need not address every
comment, but it must respond in a reasoned manner
to those that raise significant problems.” City of
Waukesha v. E.P.A., 320 F.3d 228, 257 (D.C. Cir. 2003)
(quoting Reytblatt v. Nuclear Regulatory Comm’n, 105
F.3d 715, 722 (D.C. Cir. 1997)). Thus, when a public
comment raises a major substantive concern, an
agency’s failure to respond can render a decision
arbitrary and capricious. Sierra Club v. E.P.A., 863
F.3d 834, 838 (D.C. Cir. 2017). I have reviewed the
record in detail and disagree with Southold’s claims.
EPA sufficiently responded to each of the comments
and objections raised by Southold, Purnell, and
Fishers Island. Many of the concerns Southold raises
echo points dealt with above, and I need not retread
that territory here. Nonetheless, to the extent
Southold’s claims raise distinct points, I briefly
discuss why they are without merit here.
First, EPA explained why the site management
plan for the Eastern Site does not include an in-depth
B-50
overview of remediation protocols. Southold asked
EPA whether EPA’s economic analysis included
potential remediation and bonding costs, and whether
the agency was going to include remediation plans in
its rule designating the Eastern Site. EPA squarely
responded to these questions, explaining that while
remediation and bonding were outside the scope of
designation, the site’s management plan would
include protocols for discerning whether post-disposal
remediation may be needed, and what form such
remediation could take. This answer fulfilled EPA’s
obligations under the APA. See Cement Kiln Recycling
Coal. v. E.P.A., 493 F.3d 207, 225– 26 (D.C. Cir. 2007).
Second, EPA sufficiently addressed Southold’s
concerns regarding EPA’s reliance on testing manuals
from the 1990s. EPA explained that “regardless of
their age, these manuals continue to be relied upon
and are scientifically valid and protective of the
environment.” EPA Br. at 94. Southold has failed to
explain why the age of these manuals renders the
agency’s reliance upon them defective, or which
resources the agency should have consulted in their
place.
Third, EPA thoroughly responded to concerns—
raised by Southold, Ms. Purnell, and the Fisher
Island
Conservancy—regarding
the
potential
cumulative effects of toxic sediment disposal at the
Eastern Site. As a general matter, EPA responded
that “sediment quality criteria regulations found at 40
CFR Part 227 will preclude the placement of toxic
material” at the Eastern Site. FSEIS at 3553. EPA
further explained that “[t]oxicity tests are conducted
on benthic organisms and risk assessments are
B-51
conducted using lobster, fish, clam, and worm data,
and this work supports the designation of the ELDS.”
Id. The FSEIS also discusses how Eastern Site will not
adversely impact benthic organisms, lobsters, fish, or
clams because the site is not home to substantial
populations of those species. Indeed, EPA excluded
preferred lobster habitats from the final Eastern Site,
which has a flat and sandy bottom, without the
structures that support diverse fish and shellfish
populations. 81 Fed. Reg. at 87824.
Fourth, EPA sufficiently responded to concerns
raised by the Fishers Island Conservancy regarding
the possible dispersion of contaminated sediment
during the disposal process. Specifically, a
representative of the Conservancy asserted that
disposal of sediment in the shallow waters near
Fishers Island would lead to an unacceptable risk of
contaminants dispersing into the water column before
reaching the seafloor. Southold Br. at 49. Again, EPA
explained that the permitting and testing processes
would effectively screen out toxic sediments in
dredged material. See FSEIS at 50, 52-55, 61, 3518–
19. And more specifically, EPA determined that “99100 percent of sand, silt, and clumps would reach the
seafloor under both mean and high flow conditions.
Under high flow conditions, 83 percent of the clay
would reach the seafloor during disposal operations,
while 96 percent of the clay would reach the seafloor
under man flow conditions.” Id. at 3549. EPA’s
analysis also demonstrated that precisely because the
Eastern Site is relatively shallow, it contains less
essential fish habitat than the (deeper) previouslyused sites in the eastern Sound. See AR-15, Essential
Fish Habitat Assessment. In addition, the two
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endangered fish who have been found in the vicinity
of the Eastern Site, the shortnose sturgeon and the
Atlantic sturgeon, are highly mobile species that are
not expected to be impacted by occasional disposal
activities. AR-16, Draft Eastern Site SMMP at 27.
Finally, EPA explained that after each disposal, the
Corps compares the conditions of the seafloor to predisposal conditions, ensuring the Corps learns how
much material was dispersed in the process. Id.
Southold offers no explanation for how this process is
deficient. For these reasons, Southold’s claims are
without merit.
D.
Plaintiffs’ CZMA Claims
The last claim in this action is that EPA’s designation
of the Eastern Site violated the APA because the
designation of the Eastern Site was “not in
accordance” with the CZMA, which is to say it was not
“carried out in a manner which is consistent to the
maximum extent practicable with the enforceable
policies” of New York’s federally-approved coastal
management program. Amended Complaint ¶¶ 17377.
NOAA regulations under the CZMA explain
that:
An enforceable policy shall contain standards
of sufficient specificity to guide public and
private uses. Enforceable policies need not
establish detailed criteria such that a
proponent of an activity could determine the
consistency of an activity without interaction
with the State agency. State agencies may
identify management measures which are
based on enforceable policies, and, if
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implemented, would allow the activity to be
conducted consistent with the enforceable
policies of the program.
15 C.F.R. § 930.11(h).
Under the CZMA, all federal agency activities
that affect a land or water use or natural resource in
a coastal zone must be “carried out in a manner which
is consistent to the maximum extent practicable with
the enforceable policies” of any state coastal
management program which encompasses that
coastal zone and which has been approved by the U.S.
Secretary of Commerce. 16 U.S.C. § 1456(c)(1)(A).
While long-term site designation does not itself
permit the disposal of any material, such disposal—
and its secondary effects on coastal uses—is an
“indirect” effect that triggers CZMA obligations under
Department of Commerce regulations. 15 C.F.R. §
930.11(g).
There is no dispute EPA met its procedural
obligations to determine whether the Eastern Site
was consistent to the maximum extent practicable
with both New York’s CMP and Long Island’s WRP.
Consistent with CZMA § 307(c), in July 2016, shortly
after EPA and New York came to an agreement that
the designation of the Western and Central Sites was
consistent with New York’s CMP, EPA delivered its
50-page consistency determination to the NY DOS.
AR-18. New York responded with its objections on
October 3, 2016, and EPA responded to those
objections in a 59-page letter dated November 4,
2016. Although EPA’s response expressly noted that
the agency had adjusted the Eastern Site in a goodfaith effort to ameliorate New York’s concerns, New
B-54
York apparently did not reply one way or another to
the agency’s subsequent outreach.
Here, Plaintiffs renew many of the arguments
raised in New York’s objections, and allege the
designation process for the Eastern Site was
inconsistent with the following five policies: Policy 5
of the Long Island Sound and Southold Programs, to
Protect and Improve Water Quality and Supply;
Policy 6 of the Long Island Sound and Southold
Programs, to Protect and Restore the Quality of
Function of the Ecosystem; Policy 8 of both Programs,
to Minimize Environmental Degradation from Solid
Waste and Hazardous Substances and Wastes; Policy
10 of both Programs, to Protect Water-Dependent
Uses; and Policy 11 of both Programs, to Promote the
Sustainable Use of Living Marine Resources.
As a general matter, New York is correct that
its CZMA claim is adjudicated under a different
standard than its MPRSA claims, and in theory,
neither is dispositive of the other. Nonetheless, New
York rests its CZMA claim largely on the “same conduct
and actions upon which New York’s first four claims
for relief” are based. NY Br. at 84. I rejected those
claims above and reject the same arguments here.
Proceeding from that baseline, New York has not
offered any additional viable explanations for how
EPA’s designation of the Eastern Site is inconsistent
with New York, Long Island, or Southold’s Programs.
This is especially significant in light of regulations
requiring that “enforceable policies” “contain
standards of sufficient specificity to guide public and
private uses.” 15 C.F.R. § 930.11(h). In the absence of
such standards, accepting New York’s view of what
B-55
constitutes a violation of their policies would
effectively transform their coastal programs into a
veto over otherwise lawful agency actions.
In addition, New York’s repeated assertion that
the previously unused portion of the Eastern Site
represents an “unwarranted expansion” of the New
London Site that may adversely affect environmental
conditions is without merit. NY Br. at 84–88.
Throughout the designation process, EPA emphasized
its view that the historically used portion of the
NLDS, combined with the new NL-Wa and NL-Wb
areas, would constitute a suitable disposal site
precisely because it is a containment site, from which
disposed material will not depart. EPA supported this
position with a series of studies looking at the
stability of sediment in the water column and near
the seafloor.
See, e.g., AR-10 (FSEIS App. C, Physical
Oceanography Study). Likewise, as the FSEIS points
out:
concerns about the disposal of toxic sediments
at the NLDS and other Long Island Sound
disposal sites also have been addressed by the
[Corps]’s Disposal Area Monitoring System
(DAMOS), which has collected data at these
sites since the late 1970s. The program has
generated
over
200
detailed
reports
addressing questions and concerns related to
placement of dredged material in the Sound.
These reports indicate that toxic sediments
are not being placed at open-water disposal
sites. Moreover, sequential surveys of
biological conditions at sites following the
B-56
placement of dredged material consistently
show a rapid recovery of the benthic
community to that of the surrounding habitat
outside the disposal sites. Monitoring at the
NLDS has verified that past management
practices have been successful in adequately
controlling any potential adverse impacts to
water quality and benthic habitat. With the
nearly 40-year record of surveys, these
investigations also have also demonstrated
long-term stability of the mounds at all three
containment sites in Long Island Sound (i.e.,
WLDS, CLDS, and NLDS).
FSEIS at 3519 (response to comment 2).
Finally, New York was directly involved in the
development of the site use restrictions for the
Central and Western Sites and concurred that they
were satisfactory under the New York CMP. Plaintiffs
offer no good explanation for why those same
restrictions are all of a sudden violative in the context
of the Eastern Site. Meanwhile, EPA has explained
that the uniformity of site restrictions across the
entire Sound will contribute to providing “a rational
predictable, and consistent regulatory regime to the
public.” EPA Response to New York Objection at 16.
On this record, there is no doubt that EPA’s
consistency determination “was the result of a
thorough and reasonable analysis of the relevant
factors and different alternatives available.” Matter
of Defend H20 v. Town Bd. of the Town of E. Hampton,
147 F. Supp. 3d 80, 111 (E.D.N.Y. 2015). See also
Karpova v. Snow, 497 F.3d 262, 268 (2d Cir.2007)
(“[S]o long as the agency examines the relevant data
B-57
and has set out a satisfactory explanation including a
rational connection between the facts found and the
choice made, a reviewing court will uphold the agency
action, even a decision that is not perfectly clear,
provided the agency’s path to its conclusion may
reasonably be discerned.”).
CONCLUSION
So long as there are practical limits to the
beneficial uses of dredged material, there will be fierce
disputes over where such material goes. In
adjudicating this particular dispute, I neither endorse
the practice of open-water disposal, nor discourage
EPA from pursuing more environmentally sustainable
alternatives. See Dep’t of Homeland Sec. v. Regents of
the Univ. of California, 140 S. Ct. 1891, 1916 (2020).
Instead, I simply conclude that, in designating the
Eastern Site, EPA based its findings on substantial
evidence, and followed the agency’s obligations under
the law. See Jewell, 815 F.3d at 9. For these reasons,
Plaintiffs’ and Plaintiffs-Intervenors’ motions for
summary judgment are denied, and Defendants’ and
Defendant-Intervenor’s cross- motions for summary
judgment are granted.
SO ORDERED.
Edward R. Korman
Brooklyn, New York
Edward R. Korman
July 17, 2020
United States District Judge
C-1
Appendix C Order of the United States
Court of Appeals for the Second Circuit
Denying Petition for Rehearing,
dated November 17, 2022
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
_______________________________________
At a Stated Term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 17th day of November,
two thousand twenty-two,
____________________________________
Town of Southold,
Plaintiff-Intervenor-Appellant,
Rossana Rosado, in her official capacity
as New York State Secretary of State,
Basil Seggos, in his official capacity as
Commissioner of the New York State
Department of Environmental
Conservation, State of New York,
Plaintiffs - Appellants,
County of Suffolk,
v.
Plaintiff - Intervenor,
ORDER
Docket Nos.
20-3188 (Lead)
20-3189 (CON)
C-2
Andrew Wheeler, in his official capacity
as Administrator of the United States
Environmental Protection
of the United States Environmental
Protection Agency, United States
Environmental Protection Agency,
Dennis Deziel, in his official capacity
as Regional Administrator of United
States Environmental Protection
Agency Region 1,
Defendants - Appellees,
Connecticut Department of Energy and
Environmental Protection,
Defendant - Intervenor - Appellee.
____________________________________
C-3
Appellant, Town of Southold, filed a petition for panel
rehearing, or, in the alternative, for rehearing en
banc. The panel that determined the appeal has
considered the request for panel rehearing, and the
active members of the Court have considered the
request for rehearing en banc.
IT IS HEREBY ORDERED, that the petition is
denied.
For the Court:
Catherine O’Hagan Wolfe,
Clerk of Court
D-1
Appendix D
Pertinent Statutes and Regulations
§ 930.1 Overall objectives., 15 C.F.R. § 930.1
Code of Federal Regulations
Title 15. Commerce and Foreign Trade
Subtitle B. Regulations Relating to Commerce and
Foreign Trade
Chapter IX. National Oceanic and Atmospheric
Administration, Department of Commerce
Subchapter B. Ocean and Coastal Resource
Management (Refs & Annos)
Part 930. Federal Consistency with Approved Coastal
Management Programs (Refs & Annos) Subpart A.
General Information
15 C.F.R. § 930.1
§ 930.1 Overall objectives.
Effective: February 6, 2006
Currentness
The objectives of this part are:
(a) To describe the obligations of all parties who are
required to comply with the federal consistency
requirement of the Coastal Zone Management Act;
(b) To
implement
the
federal
consistency
requirement in a manner which strikes a balance
between the need to ensure consistency for federal
actions affecting any coastal use or resource with
the enforceable policies of approved management
programs and the importance of federal activities
(the term “federal action” includes all types of
activities subject to the federal consistency
D-2
requirement under subparts C, D, E, F and I of this
part.);
(c) To provide flexible procedures which foster
intergovernmental cooperation and minimize
duplicative effort and unnecessary delay, while
making certain that the objectives of the federal
consistency requirement of the Act are satisfied.
Federal agencies, State agencies, and applicants
should coordinate as early as possible in developing
a proposed federal action, and may mutually agree
to intergovernmental coordination efforts to meet
the requirements of these regulations, provided that
public participation requirements are met and
applicable State management program enforceable
policies are considered. State agencies should
participate in the administrative processes of
federal agencies concerning federal actions that
may be subject to state review under subparts C, D,
E, F and I of this part.
(d) To interpret significant terms in the Act and this
part;
(e) To provide procedures to make certain that all
Federal agency and State agency consistency
decisions are directly related to the enforceable
policies of approved management programs;
(f) To provide procedures which the Secretary, in
cooperation with the Executive Office of the
President,
may
use
to
mediate
serious
disagreements which arise between Federal and
State agencies during the administration of
approved management programs; and
(g) To provide procedures which permit the
Secretary to review federal license or permit
D-3
activities, or federal assistance activities, to
determine whether they are consistent with the
objectives or purposes of the Act, or are necessary in
the interest of national security.
Credits
[71 FR 826, Jan. 5, 2006]
SOURCE: 57 FR 43323, Sept. 18, 1992; 57 FR 55444,
Nov. 25, 1992; 65 FR 77154 Dec. 8, 2000, unless
otherwise noted.
AUTHORITY: 16 U.S.C. 1451 et seq.
Notes of Decisions (1)
Current through Feb. 13, 2023, 88 FR 9384. Some
sections may be more current. See credits for details.
End of Document
D-4
§ 930.4 Conditional concurrences.,
15 C.F.R. § 930.4
Code of Federal Regulations
Title 15. Commerce and Foreign Trade
Subtitle B. Regulations Relating to Commerce and
Foreign Trade
Chapter IX. National Oceanic and Atmospheric
Administration, Department of Commerce
Subchapter B. Ocean and Coastal Resource
Management (Refs & Annos)
Part 930. Federal Consistency with Approved Coastal
Management Programs (Refs & Annos)
Subpart A. General Information
15 C.F.R. § 930.4
§ 930.4 Conditional concurrences.
Currentness
(a) Federal agencies, applicants, persons and
applicant agencies should cooperate with State
agencies to develop conditions that, if agreed to
during the State agency's consistency review period
and included in a Federal agency's final decision
under subpart C or in a Federal agency's approval
under subparts D, E, F or I of this part, would allow
the State agency to concur with the federal action. If
instead a State agency issues a conditional
concurrence:
(1) The State agency shall include in its
concurrence letter the conditions which must be
satisfied, an explanation of why the conditions
are necessary to ensure consistency with specific
D-5
enforceable policies of the management
program, and an identification of the specific
enforceable policies. The State agency's
concurrence letter shall also inform the parties
that if the requirements of paragraphs (a)(1)
through (3) of the section are not met, then all
parties shall treat the State agency's conditional
concurrence letter as an objection pursuant to
the applicable subpart and notify, pursuant to §
930.63(e), applicants, persons and applicant
agencies of the opportunity to appeal the State
agency's objection to the Secretary of Commerce
within 30 days after receipt of the State agency's
conditional concurrence/objection or 30 days
after receiving notice from the Federal agency
that the application will not be approved as
amended by the State agency's conditions; and
(2) The Federal agency (for subpart C),
applicant (for subparts D and I), person (for
subpart E) or applicant agency (for subpart F)
shall modify the applicable plan, project
proposal, or application to the Federal agency
pursuant to the State agency's conditions. The
Federal agency, applicant, person or applicant
agency shall immediately notify the State
agency if the State agency's conditions are not
acceptable; and
(3) The Federal agency (for subparts D, E, F and
I) shall approve the amended application (with
the State agency's conditions). The Federal
agency shall immediately notify the State agency
and applicant or applicant agency if the Federal
agency will not approve the application as
amended by the State agency's conditions.
D-6
(b) If the requirements of paragraphs (a)(1)
through (3) of this section are not met, then all
parties shall treat the State agency's conditional
concurrence as an objection pursuant to the
applicable subpart.
SOURCE: 57 FR 43323, Sept. 18, 1992; 57 FR 55444,
Nov. 25, 1992; 65 FR 77154 Dec. 8, 2000, unless
otherwise noted.
AUTHORITY: 16 U.S.C. 1451 et seq.
Notes of Decisions (1)
Current through Feb. 13, 2023, 88 FR 9384. Some
sections may be more current. See credits for details.
End of Document
D-7
§ 930.5 State enforcement action.,
15 C.F.R. § 930.5
Code of Federal Regulations
Title 15. Commerce and Foreign Trade
Subtitle B. Regulations Relating to Commerce and
Foreign Trade
Chapter IX. National Oceanic and Atmospheric
Administration, Department of Commerce
Subchapter B. Ocean and Coastal Resource
Management (Refs & Annos)
Part 930. Federal Consistency with Approved Coastal
Management Programs (Refs & Annos)
Subpart A. General Information
15 C.F.R. § 930.5
§ 930.5 State enforcement action.
Currentness
The regulations in this part are not intended in any
way to alter or limit other legal remedies, including
judicial review or State enforcement, otherwise
available. State agencies and Federal agencies
should f
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