Nov 30
2023
Tonawanda Senecas sue to halt pipeline
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The major industrial park under construction in rural Genesee County has hit yet another roadblock.
The Tonawanda Seneca Nation has filed a lawsuit in federal court against the U.S. Fish and Wildlife Service and several officials, including Secretary of the Interior Deb Haaland, arguing that they violated several environmental laws in issuing a permit to the industrial park’s wastewater pipeline.
The pipeline, which is being built by the Genesee County Economic Development Center through the federally managed Iroquois National Wildlife Refuge, required a right-of-way permit from the Fish and Wildlife Service.
“We’re asking them to revoke that permit,” Chief Roger Hill told Investigative Post in an interview Thursday.
The Nation is also asking a judge to nix assessments that claimed the project would have no environmental impacts. The lawsuit seeks no financial damages aside from attorneys’ fees. The nonprofit environmental law group Earthjustice is representing the Nation.
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The pipeline for the Science, Technology and Advanced Manufacturing Park (STAMP) has emerged as one of the most controversial pieces of the 1,250-acre industrial park, which is supported by Sen. Chuck Schumer and Gov. Kathy Hochul.
Promising to lure high-tech companies and some 9,000 jobs to the Town of Alabama, state and local officials have pitched STAMP for a decade as a key to economic growth in Western New York. To date, Hochul and Andrew Cuomo before her have directed nearly $100 million in state money to build STAMP. Two companies that have promised to build there — hydrogen energy producer Plug Power and Edwards Vacuum, a parts maker for the semiconductor industry — have so far received more than $300 million in subsidies from the Genesee County Economic Development Center, the New York Power Authority and Empire State Development Corp.
Despite the significant public investment in STAMP, Genesee County EDC and its engineers have struggled to construct a wastewater disposal system for the park. Initial designs were rejected due to a negative impact on the Tonawanda Seneca Nation, which borders STAMP. Then, negotiations with the Village of Medina to use its wastewater treatment system fell through.
The EDC is now seeking to construct an on-site wastewater treatment facility and a 9.5-mile pipeline from STAMP that would travel across the Orleans County line and discharge into Oak Orchard Creek.
Orleans County has already sued Genesee County EDC over that plan and a judge has prohibited construction from crossing the county line.
But to get to Orleans County, the pipeline has to travel through the federally managed Iroquois National Wildlife Refuge. That refuge, along with the Nation’s territory and two other adjacent wildlife preserves, forms a 19,000-acre protected wetlands complex, according to the lawsuit.
Already, pipeline construction has caused problems. In August and again in September, crews spilled hundreds of gallons of drilling fluids while digging along the perimeter of the refuge. Contractors spilled between 500 to 700 gallons of a slurry made of water and Wyoming sodium bentonite into the refuge and did not immediately clean it up. The Fish and Wildlife Service shut down pipeline construction as a result.
The Nation, in its suit, now wants the Fish and Wildlife Service to go further, arguing that it issued a right-of-way permit to the pipeline in violation of the National Wildlife Refuge System Administration Act. The suit also argues that the service failed to negotiate with the Nation when issuing the approval.
“Though the Nation has repeatedly expressed concern about the pipeline, the U.S. Fish and Wildlife Service approved it without engaging in government-to-government consultation with the Nation, in violation of the National Historic Preservation Act, and without conducting a sufficient environmental review, in violation of the National Environmental Policy Act,” the suit alleges.
The 82-page complaint describes how the Nation attempted to engage the Fish and Wildlife Service over the permit and how the agency ignored the Nation, then later apologized for doing so.
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“In May 2023, the Service apologized to the Nation for its failure to consult and promised to suspend the approval,” the suit alleges. “But eleven days later, the Service reversed course and said it had no power to stop the pipeline.”
Also named in the suit are Fish and Wildlife Service Director Martha Williams; Tom Roster, the manager of the refuge; Scott Kahan, the Fish and Wildlife Service’s Northeast regional director; and Holly Gaboriault, deputy regional chief for the agency.
David Eisenhauer, a spokesperson for the Fish and Wildlife Service, declined to comment on the lawsuit on behalf of Roster and Kahan. A spokesperson for the Department of the Interior declined comment on behalf of the agency, the service, Gaboriault and Haaland.
Representatives of the Genesee County EDC did not respond to a request for comment.
Hill said Nation members use their territory and the surrounding protected lands for hunting, fishing and collecting plants for medicine. He and other Tonawanda Senecas worry that STAMP will harm the Nation’s sustenance by driving away animals and potentially contaminating groundwater and wetlands. If that happens, the lawsuit asserts it would “threaten to impact the Nation’s long-standing treaty rights.”
STAMP, he said, could lead to “the destruction of our way of life” on top of being “a waste of your taxpayers’ money.” Hill said the lawsuit is a result of the EDC and the Fish and Wildlife Service not being “good neighbors” to the Nation.
“Shut the whole project down,” he said. “We never wanted it, we don’t want it, and we don’t want it in the future. We’re not asking for any compromise.”
Feds hot and cold
Though pipeline construction is currently paused, the lawsuit, citing the spills of drilling fluid, describes the work performed so far as “disastrous.” The suit argues the Service should reassess the permit because of the spills.
Genesee County EDC officials have downplayed the significance of the spills.
The lawsuit further alleges that the environmental assessment didn’t take into account the wastewater’s impact on Oak Orchard Creek.
In October, Investigative Post reported that discharge from the pipeline could violate the federal Clean Water Act. That’s because even treated wastewater is likely to contain phosphorus, a chemical the creek is listed as “impaired” for, meaning no more of it is allowed to enter the waterway. The state Department of Environmental Conservation issued a discharge permit for the project but has since backtracked. DEC’s negotiations with Genesee County EDC over the permit are ongoing.
The lawsuit goes on to argue that the Fish and Wildlife Service failed to consult with the Nation about the pipeline and the permit.
At first, the suit alleges, the agency seemed willing to negotiate with the Nation.
In January, the Nation argues, the Fish and Wildlife Service acknowledged a request to hold a “government-to-government consultation.” An “initial meeting” was held in April.
“During the April 12 meeting, representatives from the Service apologized for failing to consult prior to issuing the permit,” the suit states.
In May, according to the lawsuit, Gaboriault — the agency’s deputy regional chief — said the service would begin the process of a “supplemental” environmental assessment, which would “consider the concerns and comments that the Nation has expressed” and would “include a new public comment process.”
A May 15 letter then stated the service “would suspend the right-of-way permit ‘until a new decision is made.’” Investigative Post and the Niagara Gazette reported on that letter at the time.
But after that, the suit alleges, the Fish and Wildlife Service changed its mind. In a letter in late May, the service’s Kahan “claimed that it lacked the authority to suspend the right-of-way permit.”
Communication has continued, according to the lawsuit, but not about the right-of-way permit.
Hill said he’s been frustrated by the lack of communication and cooperation with Genesee County EDC and the Fish and Wildlife Service. But, he said, “it’s par for the course for New York State. A slap in the face.”
He said he plans to travel to Washington, D.C. next month for a conference of tribal leaders and federal officials but doesn’t expect much to come of it.
Hill said the industrial park is a threat because the Nation can’t go elsewhere.
“We can’t move to South Buffalo. We can’t pick up the whole Nation and everything we have here and move to Rochester or wherever,” he said.
“This is it. This is all we have for the next generations.”
