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Home My WebLink AboutFishers Island vs. USACEGREGORY F. YAKABOSKI TOWN ATTORNEY greg.yak~boski@town.souihold.ny.us PATRICIA A. FINNEGAN ASSYSTANT TOWN ATTORNEY p atric/m, finnegan@~own, southoldmy,us JOSIIUA Y, I:IORTON Supervisor Town Hsll, 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facs~mle (~31) 765-18-0 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: Su pervlsor Horton Town Board From: Date: Re: Patricia A. Finnegan, Esq. Assistant Town Attorney February 26, 2003 Fishers Island Conservancy, Inc. v. US Army Corps of EnRineers Attached, please find a copy of the fully executed settlement agreement in the above captioned matter. The settlement agreement limits the locations where future dumping of dredged material in the Long Island Sound will be allowed. If you have any questions, please contact Greg or myself. Pat PAF/md eric. cc: To~n Clerk Towh~ Comptroller NEUFELD & O'LEARY ATTORNEYS AT LAW 230 PARK AVENUE NEW YORK. NEW YORK I0169 November 22, 2002 =LEASE RePlY TO: New York Patricia A. Finnegan, Esq. Assistant Town Attorney Town Halt, 53095 Route 25 Post Office Box 1177 Southold, New York 11971-0959 Re: Fishers Island Conservancy, Inc. v. U.S. Army Corps. of Engineers Dear Ms. Finnegan: [ have your letter of November 20, 2002. Please be advised that the matter has been fully settled and the Appeal being withdrawn by my letter dated July 19, 2002, a copy of which is enclosed. I enclose herewith a copy of the fully executed Settlement Agreement for your file. Please note, given that the payment required pursuant to Paragraph 25 (see copy of check which is enclosed) thereof has been made, the Appeal was withdrawn pursuant to Paragraph 17 thereof, and the matter closed. DPO/hd Enclosures Denis P. O'Leary ~ cc: Mr. John Thatcher SETTLEMENT AGREEMENT This Settlement Agreement is made by and between the Plaintiffs in litigation styled Fishers Island v. Corps of Engineers, No. CV-95-4374 (E.D.N.Y.), AP-00-6284 (2d Cir.), individually and collectively, and the United States of America, for purposes of resolving that litigation. WHEREAS, the Plaintiffs filed the complaint in the above-referenced action on October 31, 1995, seeking relief associated w/th the disposal of dredged material required to support submarine operations at New Londgn, Connecticut; ~VI-IEREAS, Section 1416(0 of the Marine Protection, Research and Sanctuaries Act of 1972 provides that "... 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 shall comply with the requirements ofthis subchapter"; WHEREAS, the parties have reached an accommodation concerning the same action and its appeal that they believe will be in their respective interest% and. in the public interest; NOW, TIIEREFORE, in consideration of the mutual promises undertaken herein, the Plaintiffs and the United States hereby AGREE: DEFINITIONS 1. "Corps" means the United States Army Corps of Engineers. 2. "CWA" means the Federal Water Pollution Control Act, more commonly known ks the "Clean Water Act," 33 U.S.C. §§ 1251-1387. 3. The terms "dredged material" and "dumping," as used in this Settlement Agreement, shall have the same meaning as that set fOrth in MPRSA § 3, 33 U,S.C. § 1402. 4. "EPA" means the United States Envkonmental Protection Agency. 5. "Existing Disposal Site(s)" means the New London Disposal Site, the Central Long Island Disposal Site, the Cornfield .Shoals Disposal Site, and the Western Long Island Disposal Site, defined as follows: a. The "New London Disposal Site" is a one nautical mile square cemered at 41° 16.3' N, 72° 4.6' W (NAD 27), with sides runrfmg true North-SOuth and East- West. b. The "Central Long Island Disposal Site" is a 2 nanfical mile by 1 nautical mile rectangle centered at 41° 08.9' N, 72° 53.1' W (NAD 27) with the major axis nmnhig true East-West at the center. c. The "Cornfield Shoals Disposal Site" is a 1 nautical mile square centered at 41° 12.68' N, 72° 21.52' W (NAD 27), with sides ranning true North-South, East- West. .~ cl. The "Western Long Island Sound Disposal Site" is a 2,384 meter by 2,221 meter rectangle, with corners at 41° 00' N, 73° 29.5' W; 41° 00.0' N, 73° 27.8' W; 40° 58.8' N, 73° 29.5' W; 40° 58.8' N, 73° 27.8' W (NAD27). .~. 6. References to "Long Island Sound" or "the waters of Long Island Sound," for purposes of this Settlement Agreement, shall mean a body of water.constituting an arm of the Atlantic Ocean. The Sound is bordered on the East by those portions of the base line from which the territorial sea is measured extending from the eastern end of Phim Island to Race Point at the western end of Fishers Island and continuing from East Point on Fishers Island northeasterly to Napatree Point. It is further bordered on the West by the eastern mouth of the East River, on the South by the North shore of Long Island, and on the North by the South shore of the States of Connecticut and New York. This defmition, however, expressly excludes: l) any area within a harbor bordering the waters described; 2) Rhode Island waters; and 3) any waters upriver of the mouth of any fiver flowing into the waters described in this paragraph. 2 7. "MPRSA' means the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S,C: §§ 1401-45. 8. "New London Disposal Site" means the Existing Disposal Site defined in Paragraph 5(a). 9. "Permit," as used in this Settlement Agreement, means: (a) a Corps pemait issued consistent with the provisions ofMPRSA § 103, 33 U.S.C. § 1413, providing for the dumping o£ dredged material exceeding 25,000 cubic yards by a non-Federal applicant in the waters of Long Island Sound; (b) a Corps permit issued consistent with the provisions o£MPRSA § 103, 33 U.S.C. § 1413, providing for the dumping of dredged material by a Federal applicant in the waters of Long Island Sound; or (c) authorization by the Corps issued consistent with the provisions ofMPRSA § 103(e), 33 U.S.C. § 1413(e), providing for the dumping of dredged material from a Federal project in the waters of Long Island Sound. 10. "Pier 15/17 permit" means the permit issued bythe Corps on or about December 23, 1994, granting the United States Navy permission to discharge at the New London Disposal Site approximately 260,000 cubic yards of material taken from the Thames River in the vicinity of two piers at the New London Submarine Base. 11. "Plaintiffs" means the Plaintiffs in this case, individually and collectively, including Michael Forbes, the Fishers Island Conservancy, Inc., the Town of Southhold, the Fishers Island Civic Association, the Long Island Sound Lobstermen's Association, the North Shore Baymen's Association, and the Concerned Citizens of Montauk, Inc. 12. "Seawolfpermit" means the permit issued by the Corps on or about October 13, 1995, granting the United States Navy permission to discharge at the New London Disposal Site approximately 1.1 million cubic yards of material taken from the Thames River channel. 13. "United States" means the United States of America, together with its agencies, deparunems and instrumentalities, including but not limited to the Deparmaent of the Army, the United States Army Corps of Engineers, the Department of the Navy (together with the Secretary), and the United States Env/ronmental Protection Agency. ADDITIONAL DISCHARGES 14. The United States shall not discharge any dredged material pursuant to the Seawolf or Pier 15/17 permits at the New London Disposal Site after the Effective Date specified in Paragraph 35. SITE SELECTION, SITE DESIGNATION, AND PERMITTING ,!5: Beginning on the Effective Date of this Settlement Agreement, the Corps shall issue Permits providing for: a) any dumping of dredged material by the United States in the waters of Long Island Sound; and b) any dumping of dredged material from any single dred~ng project exceeding 25,000 cubic yards by a non-Federal applicant in the waters of Long Island Sound. 16. Beginning on the Effective Date of this Settlement AgreemenT, the Corps shall not issue any Permit providing for the dumping of dredged material in the waters of Long Island Sound, unless: a. The location has been designated for the dumping of dredged material by EPA consistent with the provisions ofMPRSA § 102(c), 33 U.S.C. § 1412(c); or b. The location has been selected for the dumping of dredged material by the Corps consistent with the provisions ofMPRSA § 103Co), 33 U.S.C. § 1413(b). 4 DISMISSAL OF LITIGATION AND COVENANTS NOT TO SUE 17, Upon clearance of the check to be delivered pursuant to Paragraph 25 hereof, plaintiffs shall cause the appeal captioned Fishers Island v. U.S. Army Corps of Engineers, AP- 00-6284 (2d Cir.), to be dismissed with prejudice. Attorneys for the United States will make their best efforts to deliver the check to plaintiffs' counsel within 90 days of execution of this Settlement Agreement. To the extent such cheek is not dehvered to plaintiffs' counsel within 120 days of execution of this Settlement Agreement, plaintiffs shall, at their sole discretion, be permitted to request that the appeal be reinstated, and such reinstatement shall nullify this Settlement Agreement. 18. Each Plaintiff covenants not to sue the United States, as follows: Each Plaintiff shall refrain from challenging any permit or authorization issued prior to the Effective Date of this Settlement Agreement providing for the discharge or dumping of dredged material in the waters of Long Island Sound on grounds that such permission was issued in the absence of an IvI~RSA permit, or that the requirements for obtaining an MPRSA permit were not met; Each Plaintiff shall refrain from challenging any permit or authorization issued prior to the Effective Date of this Settlement Agreement providing for the discharge or dumping of dredged material in the waters of Long Island Sound on grounds that such permission was issued in the absence ofMPRSA § 102(c) site designation or MPRSA § 103(b) site selection; and Each Plaintiff shall refrain from challenging any permit or authorization issued prior to the Effective Date of this Settlement Agreement providing for the discharge or dumping of dredged material in the waters of Long Island Sound on grounds that such permission was issued in the absence of an MPRSA § 102(c) site management plan. 19. Each Plaintiff further covenants not to sue the Un/ted States, as follows: Each Plaintiff shall refrain from challenging any Permit issued following the Effective Date of this Settlement Agreement providing for the dumping of 5 dredged material in the waters of Long Island Sound on grounds that such permission was issued in the absence ofMPRSA § 102(c) site designation, provided that the Permit is issued in accordance with the promsions of Paragraphs 15-16; b. Each Plaintiff shall refrain from challengang any Permit issued following the Effective Date of this Settlement Agreement providing for the dumping of dredged material in the waters of Long Island Sound at a site selected by the Corps on grounds that such permission was issued in the absence of a site management plan consistent with the provisions ofMPRSA § 102(c), 33 U.S~C. · §'~1412{c),pro~dedthatthe?ermiti~s issuedin accordancewith the~rovisions of Paragraphs 15-16. 20. Each Plaintiff further covenants nor to sue the Un/ted States, or to challenge any Permit issued, on grounds tha~ the MPRSA does not authorize the Corps to issue Permits consistent with the provisions of section 103, 33 U.S.C. § 1413, providing for the dumping of dredged material in the waters of Lung Island Sound. 21. Each Plaintiff shall refrain from providing assistance to any person or entity in pursuing litigation inconsistent with the covenants set forth in Paragraphs 18 through 20, including any challenge brought by or on behalf of one or more of their members. RESERVATIONS 22. The Plaintiffs expressly retain any and all rights they may have to challenge a particular Permit issued in accordance with the provisions of this Settlement Agreement on any and ali grounds other than those expressly relinquished in Paragraphs 17 through 21. 23. The Plaintiffs expressly retain any and all rights they may have to challenge the adequacy of EPA's designation of anyparticular site in Long Island Sound for the dumping of dredged material, to challenge the adequacy of the Corps' selection of any particular site in Long Island Sound for the dumping of dredged material, and to challenge the adequacy of any site 6 management plan that EPA may develop in conjunction with the Corps for any particular disposal site in Long Island Sound. 24. This Settlement Agreement is expressly subject to statutory and regulatory changes, including any changes the Corps or EPA may make in regulations implementing the MPRSA or other applicable statutes. The Plaintiffs expressly reserve any and all rights they may have to challenge any such regulatory change, j~ro~ided that nothing in this Settlement Agreement shall be construed to prohibit, limit, or otherwise hinder the same regulatory change. 25. The United States shall remit to Plaintiffs the sum of one hundred thousand dollars ($100,000) in full settlement of claims for costs of litigation, including attorney and expert witness fees. Such payment shall be made by check payable to "Neufeld & O'Leary as Attorneys for Plaintiffs" and shall be delivered to Plaintiffs' counsel. Upon full execution of this Settlement Agreement, the United States shall commence the process needed to issue the above check. MISCELLANEOUS 26. This Settlement Agreement is specifically understood to be without admission of fact or law in the underlying litigation by either party. 27. Nothing in this Settlement Agreement shall be construed to require a Permit for non-Federal projects involving the dumping of dredged material not exceeding 25,000 cubic yards in the waters of Long Island Sound. 28. Implementing this Settlement Agreement will require coordination with the existing CWA § 404, 33 U.S.C. § 1344, permitting regime. Accordingly, the Plaintiffs acknowledge that: 7 1. Nothing in this Settlement Agreemem shall be construed to relieve any person of the obligation to obtain a CWA § 404 permit or authorization for the purpose of discharg/ng dredged material in the waters of Long Island Sound; and 2. Nothing in this Settlement Agreement shall be construed to preclude issuance by the Corps of a single instrament serving as permission, in a particular case, for the disposal of dredged material in the waters of Long Island Sound for purposes of the CWA and the MPRSA. 29. Actions undertaken bythe United States pursuant ro this Settlement Agreement m'e subject to the availability of appropriated funds. No provision of this Settlement Agreement shall be interpreted as or constitute a comminnem or requirement that the United States obligate or expend funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341. 30. The undersigned representatives of the parties certify that they are fully authorized by the parties they represent to enter into this Settlement Agreement, and to bind the parties they represent to this Settlement Agreement. 31. This Settlement Agreement constitutes the entire agreement between and among the parties regarding matters addressed or to be addressed in connection with the litigation styled Fishers Island v. Corps of Engineers, No. CV-95-4374 (E.D.N.Y.), AP-00-6284 (2d Cir.), and shall not be modified except by an appropriate written instrument executed by the United States and the Plaintiffs. 32. This Settlement Agreement is entered into between the parties exclusively for their mutual benefit, and not for the benefit of any person or entity not a signatory to this Settlement Agreement. The Settlement Agreement does not affect the rights of the United States or the Plaintiffs against any other person or entity. 33. The parties agree that this Settlement Agreement was drafted jointly by the 8 Plaintiffs and the United States. Rules of construction to the effect that ambiguity is construed against the draftsman of a document shall be inapplicable in any dispute concerning the provisions, meaning, or interpretation of this Settlement Agreement. 34. This Settlement Agreement may be executed in any number of counterparts, each of which shall be deemed to constitute an original document, and al/of which shall const/mte a single agreement. The execution of a single counterpart by any party, or that party's representative, shall have the same force and effect as if that party had signed all the other counterparts. EFFECTIVE DATE This Settlement Agreement shall be immediately effective upon execution by 35. counsel for the parties. Dated: ,~(x,'v,~ t ~_~ 2002 Dated: 0Jv-t t~"~ ,2002 NEUFELD & O'LEARY Attomeys at Law (212) 986-0999 ATTORNEYS FOR THE PLAINTIFFS By: ALAN VINEGRAD United States Attorney Brooklyn, New York 11201 (718) 254-6023/7000 ATTORNEYS FOR THE UNITED STATES NEUFELD & O'I~EAI~Y 230 PARK AVENUE NEW YOR[/~ NEW YORK 10169 New York Jt~ly 19, 2002 Stanley A. Bass, ~. st coUn e :: United States Co~ofAppeals for the Second Circuit 40 Foley Square % New York, NY l~)~0~7 Re: Fishers I's~ Conservancy, et al. v. U.S. Army Corps of 84' ' Engineer(et d.; Docket No. 00-62 Dear Mr..Bass: ~ I write to confi~ the above-referenced matter has been resolved between counsel and, as such, I hereb~f.quest, on behalf of the Appellants, that the above-referenced appeal be withdrawn and d~ssed with prejudice. Should you reqt~e any additional doctamemtation in order to effectuate this request, please advise and I wiit~use the same to be prepar~ and submitted. On beh .all of co~el for ail pames berem~ I thank you for your efforts m helping to bring about this resolul~pn. Respectfully yours, DPO&d cc: Stanley N. Alpert, Esq., A.U.S.A. Mr. John Thatcher