The Department of Energy and Environmental Protection held a hearing on objections by DRVN, a road salt business being forced off State Pier, regarding a proposed dredging permit for the Connecticut Port Authority – one of the last approvals needed for the proposed $235 million wind project to move forward.
Attorney Keith Anthony presented the case for DRVN, based largely on a notice of insufficiency by the department outlining what elements were still missing from the port authority permit application.
In that notice, the port authority was asked to provide information on “water-dependent” users of the port, asking whether they would be displaced during the construction, and if they would be allowed to use the site after the work is completed.
Anthony argued that DRVN’s water-dependent use had not been properly considered. Attorneys for DEEP, Connecticut Port Authority, and DEEP Commissioner Katie Dykes argued instead that DRVN’s issue was with its contract to work on the pier, not the permit.
DRVN had been operating at State Pier since 2014, said Anthony, and would be still if not for the wind project. According to Anthony, for the next two years at the minimum the only place that salt can be imported by water in Connecticut is through New Haven harbor.
“My client was providing a service that helped the safety of the citizens of Connecticut,” Anthony said. “Now that’s gone, and it didn’t need to be that way if the relevant statutory and regulatory provisions were complied with. If the same analysis that was given to commercial fishermen was given to my client, we would be in a much different position.”
According to a draft of the decision, the law requires prioritizing water-dependent uses, but not any one water-dependent use, like salt, over another, like shipping materials to construct wind turbines. If the permit is approved, State Pier would continue to serve a water-dependent use, according to the draft decision.
DEEP Commissioner Katie Dykes, who makes the ultimate ruling on whether to approve the permit, told Anthony that it felt like he was asking DEEP to go beyond their requirement to protect water-dependent uses, and to prioritize the specific use of DRVN.
Anthony said he was not asking for DRVN to be prioritized over anyone else, he said there was no analysis in the hearing record about DRVN being displaced, or the possibility of DRVN being allowed to use the pier again after the project is over – even though the notice of insufficiency asked for that information.
“[DEEP] is not extending a lease here, this is not our lease,” Dykes said. “That feels to me that this is a contractual matter that you’re raising with respect to a different party. I’m struggling to see how, if we were to find in your favor, that we could provide the relief you’re seeking, which is the continuation of a lease.”
Anthony argued that preferential treatment was being given to commercial fishermen who were allowed to continue using the pier as their home port.
John Casey, the attorney representing the Connecticut Port Authority, said the Coastal Management Act specifically protects commercial fishermen. There wasn’t a requirement in the draft permit that they give the fishermen space at the pier, just that they assist them in finding a suitable location. Allowing them to stay at the pier was a “business decision,” he said.
Assistant Attorney General Lori DiBella, representing DEEP staff in the proceeding, said there was nothing in the Coastal Management Act that required a permit applicant to engage in a particular water dependent use with a particular user. There is also testimony in the record that the project will not prevent the importation of salt at the pier in the future, she said.
DiBella argued that it was not the application from the Port Authority that was keeping DRVN off the State Pier, it was Gateway, the current pier operator, which told DRVN it would need to vacate the pier in December 2018.
“[This is] about this business and its business relationships have affected its ability to be at State Pier, and there’s nothing in the Coastal Management Act that requires you to account for that,” DiBella said.
Editor’s note: This story was corrected to reflect that Gateway is the current operator of State Pier