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Cross-Sound Blues

Legal challenges continue for the undersea transmission line.

Fortnightly Magazine - February 2004

depths would not be expected to have an impact on fisheries' resources. The Army Corps of Engineers stated that operation would pose neither navigational nor environmental harm, and it acknowledged that it had no objection to operation of the cable while Cross-Sound obtained the necessary authorizations to reach the final burial depths set forth in the permits.

The CDEP, however, took a different approach from that of the Army Corps. In a letter to Cross-Sound dated Jan. 6, 2003, the CDEP objected to the cable's operation on "procedural" grounds. CDEP effectively said that until the cable was installed to the permitted depth requirements, operation would violate the permit, notwithstanding the absence of environmental harm.

Cross-Sound requested in January 2003 that CDEP modify the burial-depth requirement through a certificate of permission (COP). The COP effectively would have harmonized CDEP's position with that of the Army Corps.

The CDEP, however, refused to consider Cross-Sound's request. The CDEP cited a 2002 legislative moratorium on permits or applications related to certain infrastructure crossings of the sound. Cross-Sound responded by filing a lawsuit in Connecticut Superior Court, seeking an order of against the commissioner of the CDEP. In the lawsuit, Cross-Sound argued that its permits (and the facility itself) pre-dated the 2002 moratorium, and therefore the agency had a statutory duty to consider and rule upon Cross-Sound's request for permit modification. On April 9, 2003, the court denied Cross-Sound's request for a temporary order of pending the lawsuit's resolution.

Several weeks before the 2002 moratorium was set to expire in June 2003, Cross-Sound requested that CDEP modify its installation permit to allow the cable to operate while Cross-Sound worked with CDEP and the ACOE to address the permanent burial depth requirements. Cross-Sound argued that because the 2002 moratorium was about to expire, the CDEP could render its final decision on this COP application within the time frames required under Connecticut statutes. Specifically, Cross-Sound asked CDEP to modify its permit to provide that Cross-Sound could operate the cable as installed in its current location for a period up to, and including, the expiration of the permit, by which time the cable would be installed to a depth that the CDEP determined would not cause any substantial adverse environmental impacts.

On June 2, 2003, one day before the 2002 moratorium was to expire, the CDEP denied the request to modify the permit, stating again that the 2002 moratorium precluded the CDEP from considering the COP, and citing the Connecticut legislature's recent passage of legislation that would extend the moratorium for an additional year. Even though the state's governor had not yet signed the bill, the CDEP said "the clear will of the legislature" was to "extend the moratorium to allow additional study and review of utility and infrastructure crossings of Long Island Sound."

The 2002 moratorium expired on June 3, 2003. Upon expiration, the CDEP reopened and denied both of Cross-Sound's previously filed COP applications. The CDEP found that the requested change in the initial COP filed in January was not a minor alteration or amendment to the original