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- Monitoring and education

within NewYork State government, nor did it enlist the support of outside organizations to lobby for changes of the present system. Consequently, the project had little effect on changing policy related to the Hudson River.

A few years later in 1976, another planning effort was initiated to comprehensively analyze the resources of the Hudson River Basin, this time by NewYork State with Federal funding. The Hudson River Level B Study assessed the basin's existing conditions and projected water and related land needs and problems to the year 2000. It provided a series ofrecommendations, including the creation of "new management structure with a unified approach to conservation and development of land and water" (New York State Department of Environmental Conservation, 1979). The recommendations from the Level B Study suffered the same fate, however, as the Hudson River Basin Project. Though sponsored by government, the project was purely a planning exercise and had no effect on changing existing policies.

During the 1980s, significant changes were made to the management structure guiding decisions about the Hudson River. The Hudson River Estuary Management Program and the New York/New Jersey Harbor Estuary Program both came into effect in the late 1980s and resulted in the first sustainable and comprehensive programs to deal with estuary and river issues. They will be discussed in greater detail in a subsequent section of this paper.

The Federal Superfund program was authorized by the U.S. Congress in 1980 andhad particular significance to the Hudson River. Unacceptably high concentrations of PCBs and cadmium in sediments within two distinct portions of the Hudson could now be dealt with through a Federal initiative.

Also, in recent years citizens have been demanding greater access to the river and better protection of the aesthetic resources of adjacent land areas. New programs, like NewYork State's Hudson River Greenway established in 1991, are now successfully preserving and enhancing the scenic, historic, cultural, and recreational resources of the Hudson River Valley.

westway

Westway was a project developed in the early 1970s to rebuild the crumbling West Side Highway and create over 200 acres of developable land and parks in Manhattan. A new highway was to be sunk in a landfill created in the Hudson River that extended over four miles, and at a cost of approximately $2 billion. As the project was designed to be part of the Federal interstate highway system, the Federal government would pay 90 percent of the bill. The project sponsors were required to obtain a permit from the U.S. Army Corps of Engineers (Corps) because fill would be placed into the Hudson to create the landfill. The Corps' permit review process provided a forum for individuals, groups, and agencies to voice support or opposition to the plan. While there were many issues debated in the Westway case, the one that resulted in the project's demise was the potential impact of the proposed landfill on the population of striped bass in the Hudson River.

The aquatic environment that the landfill would displace was originally characterized by the project sponsors as being biologically impoverished. This assessment was based upon very little field information. Federal actions, like the Westway permit review by the Corps of Engineers, trigger impact assessments in accordance with the National Environmental Policy Act of 1969 (NEPA), and require scientific counsel (Limburg,Moran, andMcDowell, 1986). As more information was collected so the Corps could complete its environmental assessment, and as that information was reviewed by other agencies and groups, the project area was found to be inhabited by far more organisms than previously thought. Juvenile striped bass were observed in the inter-pier areas of the project site during winter months, prompting scientists to hypothesize that the Westway area was an important wintering area for these young fish. The Corps rejected that hypothesis and issued a permit 1981. The decision was challenged in court and the permit was vacated.

The Court allowed the project sponsors, the New York State Department of Transportation, to reapply for a landfill permit, but the Corps was required to prepare a supplemental environmental impact statement (SEIS) addressing specifically the impact of Westway onHudson River fishery resources. The Corps' final SEIS estimated, according to a most probable worst case analysis, that Westway could displace one-quarter of the juvenile striped bass population (New York District, U.S. Corps of Engineers, 1985). But what would become of displaced fish if the project were built? And if these fish perished, would the overall population of striped bass be adversely affected? All of the experts consulted agreed that it was impossible to design a study to determine the answer to those questions. The population dynamics of striped bass would have to be better understood through longer term research before accurate impact predictions could be made.

For Westway's permit decision, the answers would have to come from expert opinion and qualitative judgments. That decision rested on whether the Corps believed that the construction of West-way would harm Hudson River striped bass and result in a finding of "unacceptable adverse impact," and whether there were any practicable alternatives to the project that would lessen impacts to the aquatic environment, the criteria used in determining whether projects are in compliance with Section404 of the Clean Water Act. The Corps concluded that displaced fish would likely survive and that Westway would not cause a "significant adverse impact" to the Hudson and Coastal striped bass stocks. Consequently the Corps approved a permit in January 1985.

The permit was immediately challenged in court, and Corps representatives had great difficulty explaining to Judge Thomas Griesa how they reached their decision. The final SEIS used language in describing aquatic impacts that was dramatically different from language in the draft SEIS. The term "significant," which has both a regulatory and statistical meaning, was freely and loosely used in the draft SEIS to describe impacts. The Court eventually found that the Corps' decision to grant the permit was arbitrary and violated NEPA and the Clean Water Act (Sierra Club vs. United States Army Corps of Engineers, 81 Civ. 3000 Opinion, August 7,1985).

The Westway saga had a chilling effect on any future plans for large-scale filling of the Hudson River. An unwritten new regulatory commandment of "Thou shalt not fill" propagated throughout the region. Inaddition, the Westway case not only highlighted the need to obtain appropriate scientific information and expertise prior to decisionmaking, but also demonstrated the limitations in our understandings of fundamental ecosystem processes, making impact assessmentvery difficult, especially in cases where there are potential population-level effects.

hudson river power case and hudson river foundation

The Hudson River Power Case, involving the permitting of several power plants in the mid-Hudson River, has focused considerable attention to human impacts on fisheries resources and led ultimately to the formation of a foundation to conduct environmental research. The conflicts between the power-generating industry - which uses Hudson River water to run steam turbines and cool them -and those concerned with the conservation of natural resources proved to be an enormously important milestone in environmental policy development for the Hudson, and indeed the nation itself.

In 1962, the electric power generating company, Consolidated Edison (Con Ed), proposed construction of a "pumped storage generating plant" drawing water from the River at historic and beautiful Storm King Mountain in the Hudson Highlands. An enormous outcry ensued and soon thereafter the Scenic Hudson Preservation Conference1 was formed and later, the Hudson River Fishermen's Association2. The Second Circuit Court's decision in the case, Scenic Hudson Preservation Conference v. Federal Power Commission (1965) set an important precedent for environmental law in the United States by affording citizens' groups legal standing to sue over environmental and aesthetic issues3. From the perspective of the present paper, though, the nearly protracted legal battle that preceded the final settlement in 1980 with Con Ed led to the widespread recognition that "the fundamental environmental information needed to make many management decisions was simply not available," nor was any public agency adequately prepared to fund necessary studies.

Under the terms of the "Hudson River Settlement Agreement," which also pertains to thermal pollution problems associated with the Indian Point Nuclear Power Plant and two other plants, the Storm King project was abandoned and steps were taken to reduce fish mortality, particularly

1 Now known as Scenic Hudson.

2 Now known as Riverkeeper.

3 Before, only those with a direct economic interest could be construed to be an "injured party" in cases before the courts.

during spawning times. Of particular significance is the recognition of the need for better scientific information that was articulated and promoted very passionately and cogently by environmental activist Robert Boyle (1979). Accordingly, the utilities also agreed to conduct biological monitoring that still continues today and to provide a $12 million endowment for a new foundation for independent environmental research on the Hudson River. Thus, the Hudsonnowhas aninstitutionalresource that no other river or estuary we are aware of anywhere has, the Hudson River Foundation (HRF). HRF, a private not-for-profit organization, sponsors research in the natural sciences and public policy, and promotes efforts to improve management policies through the integration of science. Since 1983, the Foundation has funded approximately 460 individual projects totaling approximately $30 million, contributing to more than 60 percent of the research conducted about the Hudson River since that time.

In addition to its contributions to the broader understanding of the ecological function of the river, the HRF is generally regarded to have made important research contributions regarding the operation of power plants and the potential effects they have on the populations of several species of Hudson River fish. The continuing need for regulatory action argues for the need to incorporate cutting-edge, unbiased, and credible scientific information into environmental decision making. As in the Westway matter, current science may not be able to make significant reductions in uncertainties with respect to important impacts, particularly in cases where population-level effects are possible. Clearly, more focused and sustained research on fundamental ecosystem processes will be needed, as will be better ways to enable managers to incorporate the results of basic research into their policies and decisions.

pcbs in the upper hudson river

Among the most vexing and persistent challenges to the Hudson River science and management are the PCBs4 that have accumulated in the river north

4 PCBs - polychlorinated biphenyls - are very stable organic compounds with chlorine atoms in a variety of configurations that are used as insulators in transformers and other industrial applications.

of the Troy Dam. From 1947 to 1977 General Electric (GE) plants at Fort Edwards and Hudson Falls, New York, released an estimated 590,000 kg (1.3 million pounds) of PCBs into the river, and although GE stopped using PCBs after 1977, some PCBs have since leached from its plant sites.

In the ensuing years - almost three decades have passed since the legal actions first began -this problem has motivated one of the most high profile and vitriolic environmental debates in the United States, pitting environmentalists, who have sought to have PCB-contaminated sediments removed from the river, against GE and its supporters.

As growing awareness of toxic organics developed in the decade after the publication of Rachel Carson's Silent Spring (1962), attention began to be focused on the health risks of PCBs. Studies soon linked PCBs to developmental and neurological disorders, as well as cancer, reduced diseased resistance and reproductive problems not only in humans, but also in animal populations in the vicinity of the Hudson.

Monitoring and science have played criticalroles in dealing with the Upper Hudson PCB problem, and several numerical models exist to predict the distribution and mobility of PCBs in the freshwater and estuarine parts of the river. Chapter 24 in this volume summarizes the science behind several of the key factors involved in the decision to dredge PCBs from the Upper Hudson River. Finally, in February 2002, the U.S. Environmental Protection Agency issued a record of decision calling for targeted environmental dredging and removal of approximately two million cubic meters of PCB-contaminated sediment from a 65-km (40-mile) stretch of the Upper Hudson.

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