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Home My WebLink About07/10/2015 letter to US Dept. Army Corps of Engineers6e5 Broadway, 14th Floor Albany, New York 12233-1010 P: (518) 402-8545 wuiw:dec. ny,gov July 10, 2015 NEW'YOjRK.!§TAT-E One Commerce Plaza 99 Washington Avenue Albany, New York 12231-0001 P:(518)-474-0500 wW%#,dos,nY:9oV` , Meghan Quinn Project Manager, LIS DMMP U.S. Department of the Army Corps of Engineers 1 New England District Civil Works and Interagency / International Project Management Branch 696 Virginia Road Concord, MA 01742 Re: File-# 0-2015-0025 — U.S. Army Corps preparation of a Dredged Material Management Plan (DMMP) for the Long Island Sound (LIS) Region Dear Ms. Quinn: The New York State'Department of State and the New York State Department of Environmental Conservation (jointly referred to here as "NYS Agencies") have reviewed and jointly provide these comments on the U.S. Army Corps of Engineers (Corps) technical review copy of the draft Long Island Sound Dredged, Material Management Plan ("pre -draft DMMP®). At the outset, the NYS Agencies restate our long-standing support for the goal of reducing or eliminating open water disposa[ so as to minimize potential impacts to marine resources of Long Island Sound (LIS). Based on the NYS Agencies' review of the pre -draft DMMP, the State Agency comments are as follows: The pre -draft DHA P does not achieve the goal of reducing or eliminating the use of open water disposal Although, the goal to reduce or eliminate the use of open water disposal, as described in, the USEPA 2005 Final Rule (40 CFR § 226.15), is quoted in a number of locations throughout the pre -draft DMMP, the document appears to be focused primarily on establishing conditions pursuant to which LIS may continue to be used under the current status quo as an open water waste disposal facility. The Corps' base plans identified for each of the Federal Navigation Projects (FNPs) and suggested placement options for non-federal projects (in Section 5 of the pre -draft DMMP) continue to be open -water disposal, with few -exceptions and identified alternatives, and are based solely on the assumption that all other options are too costly to be practicable for use in NEYIPYOR -- ,pepartr®18rIt®f' pb 'drtment- ,STAEU PP . oceoa10w! Envlranineatai `of5tate�r Conservation 4 FNPs. Of specific concern is the plan to continue to dispose up to 80% of the dredged materials at disposal sites in LIS over the next 30 years, which represents less than a 4% reduction in the amount of dredged materials that are currently disposed of in LIS. The pre -draft DMMP improperly assumes the New London Disposal Site (NLDS) and Cornfield Shoals Disposal Site (CSDS) will be available as designated open water disposal options beyond 20`16 The pre -draft DMMP assumes the availability of NLDS and CSDS as designated open water disposal options pursuant to Ocean Dumping Act § 102; however, these two sites have not been designated as such by the Environmental Protection Agency (EPA). Until an SGEIS is completed, these sites may not be relied upon in the calculation of a base plan for any of the federal navigation projects (FNPs). The Corps', reliance on the use of these sites over -the next 30 years as a management tool for open water disposal does not meet Engineering Regulation (ER) 1105-2-100, which requires that the DMMP developed to manage dredged material disposal for FDPs for the next 20 years (here 30 years) 'be attainable. The pre -draft DMMP includes insufficient baseline information and inadequate monitoring to address information gaps At the onset of the DMMP process, participating agencies were informed that existing data gaps in the DMMP development process would be identified and that' additional studies would be undertaken to fill those gaps. While some of these gaps have been identified.and filled in the pre -draft DMMP, many others were not'addressed and have not been filled as promised. The NYS Agencies are aware that the Corps routinely undertakes sediment budgets to support navigation and water quality stud les; 'however, despite numerous discussions and email correspondence between New York and the Corps regarding this request over the past several years, nos ' uch studies have been undertaken. The pre -draft DMMP does not provide an adequate costibenefit analysis The NYS Agencies indicate that the cost/benefit analysis in the pre -draft DMMP is insufficient. The pre -draft DMMP needs to address how the base plan meets the environmental standards of all applicable environmental laws, including consistency with State coastal policies. The current procedure for the analysis of alternatives used by the Corps is flawed because all practicable alternatives roust be evaluated for compliance with the applicable federal laws, including the Clean Water Act (CWA) and Coastal Zone Zone Management Act (CZMA), prior to selection based on cost. KI The pre -draft DMMP does not consider the State's opportunity cost, economic losses associated, with not pursuing beneficial re -use or potential long-term economic costs of continued open water dumping. The pre -draft DMMP does not include sufficient consideration of opportunity costs associated with continued reliance. on open water disposal. For example, the permanent discarding of dredged material .through open water disposal is not beneficial if another use'is found to be suitable. A determination of suitability for open water disposal should also include material that is suitable for use such as fill, road surfacing, bank stabilization, storm surge protection, and land fill .capping, to name a few possibilities. The pre -draft DMMP Does Not Consider Ecosystem Resilience The pre -draft DMMP provides insufficient information on effects on ecosystem resiliency as a stressor due to the continued contaminant exposures. Numerous studies collectively demonstrate that LIS's long history of pollution, overfishing and contaminated dredged material disposal have eroded the health of the LIS overtime, thereby reducing its resilience capacity to deal with additional ecological stressors. The pre -draft DMMP should be amended to more accurately describe the New York Coastal Management Program (NYCMP) and the role of the New York State Department of State, which administers the NYCMP, in the DMMP process The NYCMP is a comprehensive program and incorporates Statewide; regional Long Island Sound, and Local Waterfront Devitalization Programs (LWRP) enforceable coastal policies to conduct federal consistency reviews. Additionally, this letter also serves to notify the Corps that the_ development of the DMMP for New York and Connecticut waters in LIS will have reasonably foreseeable effects on uses and resources in New York's coastal area and therefore will be reviewed by the NYSDOS for consistency with the enforceable policies of New York's approved NYCMP in accordance with the federal CZMA. In closing,, .the NYS Agencies would like to thank the'Corps for the opportunity to review and comment on the pre -draft DMMP and looks forward to engaging with the Corps and others in cooperatively identifying and implementing solutions to the difficult and complex problems of dredged material management in LIS. We welcome any questions about our comments. Sincerely, lathleen'Moser Assistant Commissioner Office of Natural Resources Sandra Allen, Esq. Deputy Secretary of State . Office of Planning and Development 4. c: Robert Klee, Commissioner, Ci DEEP , Brigadier Gen. William Graham Array Corps of Engineers NAD Col. David Caldwell, Army Corps of Engineers NY District Joseph Vietri, NAD Curt Spaulding, EPA Region 1 Judith Enck, EPA Region 2 Jeff Payne, PhD., NOAH R. Randall Schneider, NOAA Glynnis Roberts, NOAH Lou Chiarella, NOAH