Tuesday, June 8, 2010

Holcim and O&G Respond

Last night at the informal Common Council meeting, one of the communications received was a letter to Common Council President Don Moore from Holcim attorney Donald Stever and O&G's Kenneth Faroni.

You can read that letter by clicking here.

[ADDENDUM: Here's the link to Moore's March 15 letter commenting on the LWRP which is referenced in the Holcim/O&G letter.]

An interesting complement to the content of the Holcim/O&G letter is this video produced by the aggregate industry.


  1. this letter is so loaded it makes me gag. the "pinnacle of the hierarchy"? "regulatory whim"? "allow us to cross the causeway when not in use"? causeway upgrade "funded by the city or ngo"? we, the people of hudson, don't want your promises of "up to 10gs" for culvert modification. you are allowed to do business here at the pleasure of the people of this town, do not confuse this for a second.

  2. This reminds me of a recent town meeting I attended in the Catskills concerning a new cell tower proposal by Verizon.

    The town and board run scared and are willing to bow to all of Verizons demands. While the reality is Verizon will do whatever an empowered town board asks - as they have done in the few communities that have actually stood up to them.

    They need us - we don't need them !

    We certainly don't need a cement plant for any reason at all - because there are NO reasons on the plus side for Hudson - not a single one.

  3. It's as if O&G/Holcim never read Don Moore's original letter at all; they simply repeat their original, insufficient offers.

    That they support the draft LWRP as it stands might raise an eyebrow or two concerning that document.

    O&G/Holcim state that they "have serious doubts that a competent harbor management study would conclude that a harbor management plan is necessary for Hudson's dock area."

    Their doubts should be of no interest to anyone else, since a harbor management plan covers much more than the areas of their operations, and is ultimately a safety plan for all water uses at Hudson Harbor. Their doubts and concerns are consistently self-centered (their repeated flimsy generosity notwithstanding; c.f. Don Moore's original comments).

    Of course there is no reference made in this letter to the single viable alternative to their proposed road through the wetlands, i.e., the proposed "public" route south of L&B. There is a sound argument to be made that this alternative was intentionally kept out of the draft LWRP by its select authors. By continuing to ignore the only viable road alternative, the industry still hopes to fool the NYS Department of Environmental Conservation. And they very well may fool them, even if the public does not drop its guard.

    Presumably it is the South Bay dike that is referred to in the third paragraph as "private land historically used as a transportation corridor."

    Note the repeated use of the word "causeway," which already gives a non-historical force to the road argument. There has never been a road on the dike.

    Barring any as-yet undiscovered easements in the County records, the historical definition of the dike contradicts the "causeway" account. The 1873 deed for the original railway bed specified that "this agreement is made upon the express understanding & said deed is to be upon the express condition that said Road shall not be used for any purpose other than a private Rail Road from the quarries in Greenport to the Hudson River." (Columbia County Deed Book 51, Page 358).

    This latest letter predates a dog's having drowned at the culverts recently, and so does not address what everyone now acknowledges to be O&G/Holcim's exposure at this site.

    The waters right up to the culverts are navigable in fact by the public, as they have been since the day the culverts were installed*, and present a serious liability issue that the industry has ignored at great risk to the public and to their own bottom line. They should address that situation themselves with their own money, and soon.

    *Were the culverts installed before or after the Clean Water Act of 1972? That is, were they originally illegally installed?

  4. A correction to my above, 11:36 post:

    The June 2nd letter from O&G/Holcim actually post-dates Max's drowning. At the time of writing then, the letter's authors were fully aware that the public was by then fully aware of O&G/Holcim's exposure at the culverts.

  5. The arrogance of the language in that letter is breathtaking. Apparently Holcim and O & G have forgotten that St. Lawrence Cement pissed away $58 million in an effort to impose themselves on this community.

  6. http://www.youtube.com/watch?v=5XglhC2z500

    Here's a video shot the Hudson waterfront on a beautiful morning. Turn up your volume and listen to the sound of an industrial barge at the Holcim dock. This is mild stuff compared to what O & G wants to do.

  7. Anyone who believes that the phrase "pinnacle of the hierarchy" is an arrogant phrase - the phrase that O&G/Holcim used to describe their own status at the deep water port - should study the 44 Coastal Management Policies (CMP). You will misunderstand the policies at your peril.

    Policy number 1a. establishes this hierarchy as far as New York State is concerned:

    "When a Federal or State action is proposed to take place in an urban waterfront area regarded as suitable for redevelopment, the following guidelines will be used: a. Priority should be given to uses which are dependent on a location adjacent to the water (see Policy 2);"


    You can rail against the policies all you want and get exactly nowhere in regard to the South Bay.

    The state recognizes Hudson's deep water port for its significance as the only deep water port between Newburgh and Albany (see Don Moore's letter).

    Further undergirding this obtuse refusal to comprehend the priority of "water-dependent uses" (which are further outlined in the 2nd CMP, and throughout), is an embarrassing over-dependence on the obiter dicta of former Secretary of State Randy Daniels. The mere opinions offered within the otherwise devastating Daniels letter, those which opine on a future Hudson might imagine for itself, were never worth very much in legal terms.

    No, the Daniels decision against St. Lawrence was a firm but careful weighing of a common sense of proportionality. Yet today that decision is customarily discussed by my neighbors in self-aggrandizing either/or terms. The latter attitude is a recipe for defeat.

    Use of the phrase "regulatory whim" offers a peak at O&G/Holcim's cards. They are correct that any simplistic attempt to zone away the rights of a water-dependent function will be challenged as "whimsical" in view of the 44 CMP.

    To attribute "arrogance" to what is fundamentally true runs the risk of watering down and losing the thread of much better arguments.

  8. I am deeply moved by Holcim's offer to give away title to South Bay. First, the watered area of the Bay is of no use to them, and giving up the deed relieves them of their tax liability.

    It is also worth noting that the acquisition of South Bay to the City or another entity would be worthless if O & G were to use the causeway. No government agency or non-profit is going to invest a nickel in the maintenance and upgrade of the Bay if there is a steady parade of heavy dump trucks plowing right through it. This whole scheme is utter nonsense, and it is an embarrassment to the City of Hudson and the Coastal Resources Division of the NY Dep't of State that this ridiculous idea has survived this long.

  9. middle ground flatsJune 8, 2010 at 3:03 PM

    To the anonymous poster above who doesn't think that corporate arrogance is a big deal-- I disagree. Wiseguy lawyers and insensitive corporate executives are masters at hoisting themselves on their own petard. Their bluster and blowhard attitude are what turns fence-sitters into adversaries. They overstate their presumed rights, and condescend to the community, and in the end it doesn't serve their own interests. Since O & G has nothing in the way of economic upside to offer Hudson, they seek to kick their way in with legalese and grand statements about their supposed "as of rights."
    One would think that they had learned a thing or two from the SLC battle, but apparently not.

  10. Outrageous.

    After just a quick read through, here's a few things that I think they are trying to do (and it just keeps getting worse, huh?)

    1. As the "owner" of South Bay, they refused the earlier attempt to allow restoration of the Bay by the State because they knew that if contamination was found (as I'm sure it will be) that they would be responsible for that aspect of the clean-up. Now, they want to magnanimously "give" the area except for the causeway to the city. But with no responsibility for what's there. Gee, thanks. We know from people who worked at the cement company that they used the Bay as a dumping ground for decades. So to claim that it was the City that caused the problem is creepy, but, of course, when it comes to something like that Scalera is anxious for the City to take responsibility. The dumping the City did was done, by the way, in the area that is now occupied by the L&B building.

    2. I like how they are so giving with public access across the "causeway" as long as the City or State upgrades the whole road. This whole document is designed to get what want and actually get someone else to pay for it and to take responsibility for it.

    3. Ditto, with the development of the waterfront. They want the City to get the permissions, etc to allow the recreational access to the river on their dock (which they know they couldn't themselves because they are not the upland owner) and then use it for their own purposes -- on THEIR terms. It's interesting to see that they say that they have "operational control" of the waterfront; they didn't say they have ownership control. They don't and are trying to get around that by the hocus pocus of a "park" and effective ownership control by the city -- while they use it most of the time (and at ANY time) for their business use.

    4. Contrary to their claim, it has already been demonstrated that the dock area interferes with residential areas now that residential use has increased since the dock has not been really used in over 30 years. When the dock was used, people moved away from it to more desirable areas -- such as the Boulevards and elsewhere in the 5th Ward. But now, as the Assessor will tell you, the desirable areas are back in areas directly affected by the waterfront area. Reintroduction of the industry on the dock area will lower property values in neighboring residential areas. That, too, has already been demonstrated.

    5. Gee, a big $10,000 toward all that could be done to South Bay and its environs. You can barely get lunch for $10,000

    And all of this is great in the mind of Scalera (and others). Hmm. Wonder why?

  11. anon 2:11, for the record neither "pinnacle" or "hierarchy" are used in the document you point to. secondly, it is arrogant language to use with the president of the common council, no matter how confident you are of your position. it states, ipso facto, that any challenge to the definition of these policies, in situ, is flawed. designating the south bay as a wetland is not a change of zoning, it is a categorical redefinition of landscape that has imminent & very clear bureaucratic/legal implications, not entirely defined within this policy doc. It is also dishonest to call the dock a "deepwater Port", it is not "Port" at all. It may facilitate deepwater docking, but it is illegal to anchor here and frankly, the Port of Albany has very generous empire zone tax breaks, an extensive cargo and rail distribution infrastructure, and is 20 miles further north, as the crow flies. This is all in addition to the fact that I am extremely suspicious of the necessicty of deep water facilities for barge docking, which is 99% of the use this "deepwater dock" gets. That is all in addition to the fact that this letter goes a long way in demonstrating that The King will Let them Eat Bread if he so pleases. It you can't see how arrogant this letter is, I imagine its because you've Kings shiny lawyer ring has temporarily blinded such a reading. While I admonish myself for the flippant comment I made earlier, its in no way a reflection of how deeply I fear the machinations of these people, along with those who've aligned themselves with them. I'am certain any bluechip lawyer can find our challenge to them "regulatory whim", but that doens't get beyond the arrogance of the tone.

  12. My point (at 2:11) was apparently too subtle for "middle ground flats."

    That arrogance can often backfire is as old as the hills, but that rule applies to everyone.

    If there are so many people who don't know the 44 Coastal Management Policies, the mere assumption that they are in the right will probably, eventually backfire on them too. As someone who cares about the bay, that would be a big deal to me.

    I prefer to avail myself of actual policies and laws in order to be a better steward of the South Bay's ecosystem.

    There are many in Hudson who would side with me, but who also seem overly satisfied with a justified outrage which looks to border on arrogance. I'm just saying, that may be a weak hand this time around.


  13. To anonymous at 3:42:

    In reply, I quote (again) from O&G/Holcim's June 2nd letter to the Council President.

    "Our position that the commercial/industrial waterfront operations, which stand at the pinnacle of the hierarchy of favored water-dependent uses ..."

    What's not to understand? What document are you looking at?

    Incidentally, I am entirely, 100% supportive of Mr. Don Moore.

    My name is Timothy O'Connor

  14. It's interesting to note that O & G tries to make the case that their proposed operations won't be a bother to residential areas of Hudson. Not true- the houses on lower Allen and Union have back yards that face the waterfront area, and industrial sights and sounds are clearly an impact of consequence.

    And further, even if there is no impact to residences, what about our waterfront park? Surely it would be directly and adversely impacted by trucks and barges.

  15. The anonymous commenter above who claims to know so much about the 44 coastal policies in fact does not know what she (hi, Cheryl Roberts!) is talking about.

    The 44 Coastal Policies are NOT the same as EnCon "balancing" tests under SEQRA.

    You are NOT allowed to sacrifice one policy for another.

    ALL 44 goals must be met... and if you can't meet one or some of them, you don't get to say that one benefit outweighs another.

    If Holcim's goals under one policy conflict with others in other policies, Holcim has to go.

  16. To the anonymous jargon-meister above (at June 9, 12:46), I am afraid that you may be misleading people.

    May I begin by expressing my disdain for any and all self-appointed technocrats, not least the ones who satisfy themselves with replying in sound-bites, and to invite you to join in with the spirit of broader public involvement by providing links to precedent, other discussions, and actual NY State policies, etc. 

    Also, please refrain from ad hominem criticisms, especially when using personal names for making comparisons which are meant to be insulting! That sort of shameful behavior should be beneath this debate, and you do us all a disservice. (Not to mention the individual named.) It is a misuse of our ability to post anonymously at this blog, and invites the bad behavior of others.

    Now to the point. I am afraid for the environment if your willingness to sacrifice the South Bay as a test case for some losing extremist proposition exceeds the common sense of state policy makers.


Is your strategy to secure the future of a healthy bay to fully rely on an "EnCon 'balancing' test," whatever that is? And to what end? To shut out a private enterprise and a property owner? That would be a foolish and wasteful crusade, though it would promise to secure some short-term publicity for a very few actors.

    What you might have done in your comment was to persuade readers by providing some history of applications of this "EnCon 'balancing' test," where water-enhanced uses won out over privately owned water-dependent uses. I cannot find any examples of it, though I would be happy to learn that there is some sort of precedent. Yes, I would be glad to learn that I am wrong about all of this, and that the O&G/Holcim attorneys are quavering after reading your post.


Also, please describe why you believe these precedents would apply to Hudson's situation without further risking the prospects for the bay.

    Please explain, define, or provide hyperlinks to, any discussion concerning the potential reversal of the stated or implied priority of water-dependent uses over water-enhanced uses.


It is my understanding that the expressions of NY State policy detailed in my immediately following comment (below, with Carole's permission) will trump the unexplained and possibly eccentric notions you covet of what constitutes a proper coastal "balancing test."

    T. O'Connor

  17. 1. Coastal Management Policies:

    Policy no. 1:

    1. When a Federal or State action is proposed to take place in an urban waterfront area regarded as suitable for redevelopment, the following guidelines will be used:

    a. Priority should be given to uses which are dependent on a location adjacent to the water (see Policy 2) ..."

    Policy no. 2:

    "... To ensure that such 'water-dependent' uses can continue to be accommodated within the State, State agencies will avoid undertaking, funding, or approving non-water dependent uses when such uses would preempt the reasonably foreseeable development of water dependent uses; furthermore, agencies will utilize appropriate existing programs to encourage water dependent activities." [under "Explanation of Policy"].

    Policy no. 4 (1):

    "The action shall give priority to those traditional and/or desired uses which are dependent on or enhanced by a location adjacent to the water."


    2. New York State Executive Law Article 42

    "911-7. 'Water dependent use' means an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water."

    "915-b Notwithstanding any other provision of law, water dependent use activities as defined in subdivision eleven of section nine hundred eleven of this article, shall not be considered a private nuisance, provided such activities were commenced prior to the surrounding activities and have not been determined to be the cause of conditions dangerous to life or health as determined by the commissioner of health, the local health officer, or local board of health pursuant to sections thirteen hundred, thirteen hundred-a, thirteen hundred three and thirteen hundred four of the public health law and any disturbance to enjoyment of land has not materially increased."

    "922-4. No provision of this chapter ... shall it be read to authorize local harbor management plans displacing conforming water-dependent businesses in existence on the effective date of this section."


    T. O'Connor

  18. Mr O'Connor,

    Your constant referral to the Policy Document does not:

    A. Explain in any reasonable way why the letter from Holcim wasn't arrogant.

    B. Get around the fact that "Policies" are not a one-to-one translation to "Cases".

    C. Get at the fact that redefining the South Bay as a wetland is not a zoning issue, nor is it regulatory whim. It is one of the most powerful designations DEC uses.

    D. Distinguish "causeway" and "deep water port" as two distinct units, under totally different policy advisories.

    E. Produce Legal Reasoning and Precedent vis-a-vis policy as applied in situ.

    F. Show how the use of the phrase: "pinnacle of the hierarchy" does not infer an entire host of agencies signing off on their "water dependent use". Because they used the language you found in a policy doc does not for one moment mean that another policy doc couldn't be used to challenge this assumption.

    F. Do anything but continue to blind you to the byzantine ways this issue can be hashed.

    The letter was Arrogant. Period.

  19. Since I am attempting to cover much ground with what I take to be several misinformed but nevertheless self-righteous writers, it is easy to take cheap shots. (Someone above even read my words as having been critical - even rude - towards Mr. Don Moore. Nothing could be further from the case.)

    First part, in reply to your A - C.

    A. While I do not disagree that the general tone of O&G/Holcim consistently verges on arrogance, I am as certain that the general tone many of those who claim to care about the South Bay (and probably know zero about it) are as arrogant if not more arrogant than the industry. I just don't feel that kind of self-righteousness, nor do I think it advances anything.

    I am frankly more concerned with the arrogance of someone who purports to be "on my side," than I am with the arrogance of a well-trained attorney for a company as vast as Holcim USA.

    So yes, they are arrogant, but how intelligent is it to be arrogant in return? Much of "our" arrogance stems from the frustration I perceive, a frustration possibly stemming from a lack of planning, and a recognizable strategy. Lack of real involvement too. Meanwhile I'm working alone in the South Bay, wondering where are all of these people who say they care?

    B. I'm not at all sure what you are getting at. I thought that I'd been trying to indicate the general, cultural background that has led, nationally and statewide, to such a wide bias towards water-dependent uses, and frankly towards preserving and increasing commerce. This priority - as well as the Coastal Management Policies themselves - follow from a general American attitude, and federal policies.

    We ignore the general culture at our peril when we hope to be revolutionaries. The existing NY State policies should be weighed carefully in this regard. Attempts to overturn the policies would be another conversation for a different crusade.

    It seems to me that you, Mr. Anonymous, think and write as if you live in a Euro-style universe of civil law. It is New York's common law that you must anticipate, and which contrasts to a narrowly litigious approach exemplified by your seeming over-dependence on something called "EnCon balancing tests."

    But was it narrowness of which you were accusing me? Like I said, I can't tell.

    C. Apparently my referral to the policies doesn't "get at the fact that redefining the South Bay as a wetland is not a zoning issue, nor is it regulatory whim. It is one of the most powerful designations DEC uses."

    This certainly isn't a zoning issue, nor should zoning be relied on to solve this ecological challenge. That people might think that zoning is enough is a situation that invariably will lead to new and doomed regulations. There is the whimsy. And you can bet that mere zoning changes and regulatory attempts will also be attended by a much arrogance on our parts, and even be a condition for such foolishness. There will be great heroes and much publicity for the publicity whores, but very little for the South Bay. The fate of the bay will be left to the lawyers.

    The strategy right now ought to be the daily nattering of the DEC - by all of us, by the Common Council, by our elected representatives, the Register Star, etc. - to finish their delineation of the South Bay. Nearly 40 years late, and taking Hudsonians into account, I hold out almost no hope for that.

    TO'C (to be cont.)

  20. D. That I do not distinguish "causeway" and "deep water port" as two distinct units is nonsense.

    For the moment my interest in the port is limited, but to deny that the port implies that there is a road to it would be ludicrous. A port and its service road are part and parcel of one operation.

    But you would do well to separate them by calling the dike or berm something other than "causeway," a term which suggests that it is already a sort of a road (which it never has been).

    E. "Policy as applied in situ" only applies when it has been applied, in situ, "in the place". Situ connotes a particular locus, a specific place.

    As far as I can discern, not much policy has ever applied to this particular "situ." This situ has never even been completely delineated. Considering the situation we're in, and have been in for a decade, I think that this is a disgrace, and reflects somewhat on Hudsonians flagging interest.

    May I say that you seem to generalize when it is more appropriate to be particular, and vice versa?

    F. You may challenge the assumption of a hierarchy, but if you hope to regulate someone out of existence then you will lose. (Is that the strategy? So far you only ask hostile questions.)

    In balancing between competing waterfront interests, a compromise will be struck, and a preexisting water-dependent use will be granted a lot of leeway. At that point if we have wasted our efforts trying to run a multinational out-of-business, or at least out-of-town, and they will get their road across the dike.

    Don't get angry for too long, and start getting smart. There is a hierarchy and you should get used to it and anticipate how to work with it. Don't reinvent the legal wheel when you can be applying specific knowledge concerning the integrity of this particular environment.

    F(2). Allegedly, my "constant referral to the Policy Document does not do anything but continue to blind [me] to the byzantine ways this issue can be hashed"?

    Probably all culture is "byzantine," which may account for what I perceive to be most Hudsonians being more concerned with getting the trucks off of their streets than preventing a road on the dike, at the same time that you are consumed with environmental righteousness, and cannot see that you are on a losing tack.

    There are times to make swift attempts at changing things and other times to move more deliberately. Convince me that your seeming rashness and revolutionizing of some basic assumptions is the most effective way and I'm yours. But don't waste too much time before you learn a thing or two about the art of compromise. Master that and you still might win it all.

    T. O'Connor

  21. Huh? Your disjointed response and hostile grandstanding is hypnotically schizophrenic.

  22. It's unfortunate that Mr. O'Connor didn't understand an earlier poster's references above to "balancing tests" or the crucial difference between how Coastal Policies and Encon reviews and Coastal reviews, because the previous post was correct.

    When DEC (sometimes referred to as EnCon) performs reviews of projects, it is charged under SEQR to weigh and balance impacts, and whereever possible to find a compromise through mitigation. As a result, it is rare for a DEC adjudicatory process to result in a denial of a permit.

    But when DOS (or other lead agencies working within the Coastal framework) perform a Consistency Review, the standard is entirely different.

    Coastal programs are delegated from the Federal level and the rules are not like those of SEQR. Indeed, such programs proceed from entirely distinct set of fundamental assumptions and prerogatives.

    Coastal regulations require that all policies be upheld, and that one policy not be sacrificed for another. In the case of Waterfront Revitalization Plans which contain conflicting elements or other goals, these cannot be shrugged off as compromises or mitigation and the like, as they might be in a DEC review.

    As for specific references to public officials involved in the review of these matters, it is admirable that you want to observe Marquess of Queensbury niceties. But when a city attorney (who is paid) or an elected official (who is accountable to the voters) delivers bad information, don't be surprised if such people get called out from time to time. If Ms. Roberts or any other persons involved in deciding the future of Hudson's waterfront can't take the heat, the kitchen door is wide open.

  23. http://www.nae.usace.army.mil/projects/ri/LISDMMP/Presentations/NYDOS-Nov07.pdf

    "The Department of State expects and will work to ensure the plan will be developed to be consistent to the maximum extent practicable with the enforceable policies of New York’s Coastal Management Program ... This “consistent to the maximum extent practicable” standard is a federally required element of New York’s
    Coastal Management Program. It does not allow agencies or others to use a general claim of a lack of funding or insufficient funds, or failure to include the costs of being consistent in budget or planning
    processes as a basis for not acting or undertaking activities in a manner fully consistent with all applicable
    policies of New York’s Coastal Management Program. Agencies instead are to advance all applicable coastal policies relating to the protection and use of the coastal area and its resources in a manner that avoids
    conflicts between competing governmental policy objectives, without advancing any one of those objectives to the detriment of another. This is what distinguishes New York’s Coastal Management Program decisionmaking from other regulatory and related decision-making requirements. It is what New York’s Department of State is working toward and hopes to achieve with its partner agencies and the public..."

  24. Ah! An honest interlocutor, Thank you.

    So it was worth my slog through the trolls then (but it's also good to keep an eye on such types, especially where law enforcement may become an issue).

    What you have written is all very helpful, though I'll have to try and sort it out later. Perhaps to more fully understand if, and in exactly what manner you may be correct, I might relay your description to someone at the DEC. But will they give me an honest reply? I guess that will probably depend upon who it is I'm speaking with (among the problems I perceive at the DEC).

    That "EnCon" is the same as the DEC is nice to learn after all of the above. I've been around the DEC for years, but no one I know on Long Island calls it EnCon, which sounds like jargon to me.

    I am a naturalist, but I bear no grudges against anyone trying to turn a buck. O&G builds sewage treatment plants, which is commendable as far as that goes. But traversing the South Bay in order to do this must not happen.

    You've been very helpful, and honest. I'm glad to see that I am not alone where sensible strategies will be needed. I would like to talk more about these things, but I have no idea who anyone is in this anonymous forum. I'd like to run a few things passed you - some of Coastal Resource Specialist Nancy Welsh's words, for instance - to see how they fit with your structural description of things.

    You can find me, most any day, in a kayak. I'm primarily a bird man, but I'll give you a tour of the plants, fish, mollusks, whatever. Got a canoe?

    T. O'Connor

  25. Anon, your words and those of the Corps of Engineers at the address you provided square with what I already believe to be the case, though I may have conflated some of the steps here and there.

    But the two problems that I keep banging away at persist, until someone can fully satisfy my worries.

    The first snag, as far as I can tell, is that the Hudson South Bay has never been fully delineated by any agency. If that is the case - and I cannot find any designation, state or federal, as to its having a "coastal" status - then the "coastal framework" may not apply at all.

    In one of O&G's letters (about the DGEIS?) they wrote of the South Bay's not being "tidal." I didn't think that ridiculous at the time, but litigious. That it is in fact tidal may be immaterial if it is not officially delineated as "tidal." I can find no reference to its tidal status, so I cannot yet contradict the industry's claim.

    If you know specifically that I am incorrect, I would be infinitely grateful if you'd provide that source. It should be defined as "coastal," and not merely inferred as being coastal by anyone with common sense.

    (I have conducted a tide study of the East Bay, just so you know I'm not being cute with anyone. I'd love to supply anyone with the results.)

    The second snag has to do with what I called a "compromise" earlier.

    When Coastal Resource Specialist Nancy Welsh informs us that inasmuch as "desired land uses for the waterfront can be mutually advanced," and that they might not "hinder one another," she explained that any "trade-offs being made [must] explain the underlying rationale."

    That letter was written in a different context (concerning an earlier draft LWRP), but the consideration resonates with the Corp's application of standards "consistent to the maximum extent practicable."

    To some degree, however miniscule, the acknowledgement is tacit in this quotation that one policy is definitely being sacrificed for another wherever we can achieve only a practicable solution.

    To seek the "maximum" is an excellent intention, but implicit in this formulation is having to arrive finally at something less than perfection, which is then justified by its underlying rationale.

    There will always be trade-offs and choices that must be made among bad options, which has nothing to do with lame excuses made by state agencies. It is about every conundrum that is posed by two or more equally valid and equally vying claims.

    Each particular site will also result in a unique balance between the policies. Can one really say that all solutions to these problems in the past have balanced the policies equally, one case compared with another? I'm not questioning fairness, but whether it makes any sense to even compare beyond a certain point. There is nowhere else with a situation exactly like the one we face here, and I am not comforted by a faith in the "maximum extent practicable."

    I am anxious as to the "rationale" that our community can come up with when much counts against preventing that road out there.

    That the South Bay has seemingly slipped through the cracks at the DEC (and upwards) is one of my greatest concerns.

    On a different subject, I do not believe that a great deal of nastiness will help us, nor will I be involved with self-righteous types. (I do not speak about you, Mr./Ms. Anonymous #15.)

    Personally, I have much to criticize about the work of Ms. Roberts, but the nasty tone displayed above demeans us all. Assuming that some of us are civilized, I'd rather be discussing those other things.

    T. O'Connor

  26. Four hours of surveying least bitterns this morning, since 5 A.M., like finding a needle in a haystack. The bird's status in New York is "threatened," and since there has never been a confirmed breeding record in the Hudson area, officially it is as good as not here at all. We are going to correct that.

    As I paddled along it occurred to me that the patient explanation of the most recent Anon gives me a contradictory, double impression.

    Please indulge my intuition, as it is in NO WAY meant to be insulting or criticizing. I offer my mere intuition in the most constructive spirit, and ultimately from my sense of alarm.

    It is that your description strikes me as both overconfident, or overoptimistic about the inevitable right conclusion that the federal bureaucracies will reach (on their own?), but seem at the same time vaguely preparatory of an appeal.

    I prefer to over-prepare, if that is not evident enough.

    T. O'Connor

  27. Mr. O'Connor:

    Neither the Army Corps nor DEC (referred to by many Albany folks as EnCon, though that usage is fading) is among the agencies with essential regulatory authority over the LWRP.

    The lead agency for the Waterfront Revitalization Plan is the Hudson Common Council. The Department of State must approve anything the Common Council does. Also NOAA, the agency from which these Coastal programs are delegated, has oversight over what that DOS does regarding Coastal Management.

    The Corps and DEC can of course offer their opinions about the project if they want, but the key regulatory standards which apply here to the LWRP are those of the Coastal program.

    So to apply either philosophical or legal frameworks from those other agencies is a fundamental error. It would be helpful to avoid making mistaken assumptions about what is and isn't possible in the LWRP to carefully read the DOS guidance, starting with this link.


  28. In February I read the document at the address you provided. I will look at it again.

    I appreciate your latest attempt to sort all of these agencies for me / us.

    I am aware that NOAA ultimately signs off on every LWRP among the states that participate, and that fortunately the Corps has nothing to do with it. It is no coincidence that our national fisheries also fall under NOAA.

    But I am not overly concerned about the LWRP at the moment. (Should I be?) I think we probably agree that it is a shoddy production which should and almost certainly will be sent back down to our stumbling lead agency.

    No, my mention of the LWRP was entirely incidental, except that I see an analogy where you do not.

    As for the Army Corps of Engineers, you had provided a quotation which I similarly engaged for being potentially analogous. I hoped that I was using it to make a good, general point about overconfidence in any agency's wisdom, and about our potentially misplaced faith in the ultimately equitable application of The Policies.

    Actually, you have not described how my analogy is false, but only that it must be false since each framework by definition cannot have anything in common with any other logic than its own. Certainly I have not been altogether clear myself, but claiming mutually exclusive logics and leaving the discussion at that is not much of an argument.

    But perhaps you were referring there only to my mention of the LWRP, which mention was wholly unnecessary as I continue to believe that I am not discussing that program at all. I am with the analogy. (I began my comments by questioning the assumption that all we need to do is to change our city's zoning - using the LWRP or otherwise - to make the industry's position untenable. That is the "logic" that I am rejecting.)

    As I've continued thinking on our conversation, mostly in an effort to discern what it is you might be driving at, or strategizing towards,* I'm revisiting what I last wrote about your seeming to be already preparing an appeal. I guess that I had your latest post in mind even though I hadn't read yet.

    Am I incorrect that you seem to be expecting all of these programs and agency processes to play themselves out, on their own, long before you weigh in on the legality - or illegality - of the results?

    I don't discern anything that strikes one as proactive in your words, only the repeated seeming assurance that the Fed will do the right thing by the policies.

    Forgive me if I misread you. Personally, I wouldn't like to wait to first see where things end up. I see an opportunity to provide definition, and everything that I have learned and everyone I've spoken with at the federal level says the same thing: local involvement is crucial, and that without it ecosystems can and will continue to degrade and fall through the cracks.

    I believe that my analogies are still apt to our imperfect world. However, I would like to learn to worry less.

    Do you believe that even though every application of the policies is particular to unique places and conditions, that all applications attain equal conclusions that do not involve trade-offs? It sort of appears that that is your belief.

    *Incidentally, I do not suggest that a public forum is the best place to air such things, but I know of no one who is discussing this at all. Actually, I know many people in Hudson that want the trucks off the city streets so badly, that the general attitude seems to be that if they have to cut across the South Bay, so be it. I trust that you can discern that this is not my attitude.)


  29. I should've made my last question clearer (early bitterns and all ...).

    Please help me imagine a scenario where "all policies are upheld, and that one policy [is not] sacrificed for another," as the "coastal regulations require." (Your words.)

    I can only imagine such an outcome in the most simplistic situations.

    To my litigious eye, O&G/Holcim has a valid claim as a preexisting, water-dependent entity. If this can be true, do you really see a way that all policies can be upheld considering that there are other, contradictory claims on Hudson South Bay (assuming the proper authority ever gets around to delineating it)?


  30. If any trade-offs are required then my analogy holds. Only in an ideal world can the policies be applied equally.

    To go back to my second post above, "to attribute [O&G's] 'arrogance' to what is fundamentally true runs the risk of watering down and losing the thread [of opposing O&G]."

    I am not sanguine about the South Bay when considering the policies that cover water-dependent uses. No other poster has addressed those aspects of the Coastal Management Policies.

    Add to this the possibility that the South Bay may neither be "tidal" nor even "coastal," at least officially. (Of course they are in fact.)

    It is idealism to suggest that the Fed's responsibility to not sacrifice one policy for another will make everything come out right in the end, if by that one means what is "ecologically best."

    The lesson on the hierarchy of agencies was helpful, but remains unconvincing in regard to my concerns.

    One must square the actual policies before making unsupported claims about the universal "logic" of their application.

    There are always trade-offs, and there will be trade-offs here, too. Who defines the terms of these trade-offs remains to be seen.

    Step one: delineate the South Bay. (That should be a mantra.)