Marcy NanoCenter in the Balance - Part 1

In case you missed them, there were two excellent interviews on WUTQ this week concerning Army Corps of Engineers' recent denial of a wetlands permit for the Marcy NanoCenter project pending that project signing up a tenant.

Jeff Hawk of Army Corps of Engineers vs Steve DiMeo of MV EDGE  

Administrative balancing . . . 

ACE is an administrative agency charged with carrying out the provisions of Clean Water Act Section 404.  It can only act within the authority found in its governing statute and regulations. Its decisions must be based upon substantive evidence.  It cannot act arbitrarily or capriciously. It also has an obligation to act and not avoid its responsibilities. ACE must balance each proposal against what is required by law. 

ACE is concerned that EDGE will never find a tenant, and that, per ACE's decision, the wetland “will be filled without purpose.”

"Purpose" is key to understanding this controversy . . .

As understood by the public, the  purpose of this project is to have an Oneida County site prepared where the semi-conductor industry can simply come in and break ground on a plant without delay, with the ultimate goal of producing local jobs. 

 

There is nothing in the Part 230 regulations that allows ACE to evaluate the purpose of the project beyond determining whether or not it is a water-dependent activity and whether it might be more appropriately conducted elsewhere with less adverse impact. ACE feels that it needs the tenant because it hopes to work with the tenant to get the tenant to modify its requirements to further reduce the impact to the wetland -- but that defeats the entire purpose of the project by injecting delay and uncertainty. Simply put, ACE does not have the legal authority to change the purpose of the project but its position is an attempt to do so.

Previously ACE had issued a permit to EDGE with the condition that no work be performed on the site without a written contract securing a tenant.   "In the District’s view, issuing a conditioned permit achieved the goal of identifying a site that was “pre-approved” or “pre-permitted” in order to attract a semiconductor facility . . . "  Mr. Hawk admitted during his interview on WUTQ that ACE has no expertise in the semi-conductor industry.  ACE's determination that its previously-issued permit was sufficient "to attract a semiconductor facility," thus, was a determination that was both outside its expertise and not based upon substantive evidence.   

As pointed out by Mr. DiMeo during his interview, ACE has issued similar permits for shopping centers without requiring the developer to have signed commitments from tenants. Why did not ACE require commitments in those situations to ensure that the wetland is not filled "without purpose" or to work with those tenants to get them to reduce their impacts by, perhaps, reducing the sizes of their stores?  What regulation allows ACE to make the tenant a requirement for EDGE's proposed shovel-ready site but not for shopping centers?  ACE is acting arbitrarily and capriciously when it requires tenants in one situation and not the other.

Simply put, ACE, without authority, without evidence, and without the proper expertise has arbitrarily imposed a tenant requirement to avoid conducting the review it is commanded by law to perform. We can only guess why it has done this.

This situation can only be rectified by ACE's recognition of its errors and doing its job, or by litigation.

Whether or not Oneida County should proceed to litigation involves another type of balancing ... but that will be discussed in Part 2.