Challenge to new DEC regs thrown out by court

Potential development of the remaining land inside the Calverton Enterprise Park suffered a major blow this month, according to town officials.

A State Supreme Court Justice has thrown out a legal challenge to new state  regulations that require a DEC permit for a potentially wide range of activities — if the activities might impact protected species.

The parties to the suit — including the Town of Riverhead and EPCAL developer Jan Burman — lacked standing to sue, the court ruled; and the mere adoption of regulations did not create a controversy “ripe” for judicial review, according to the Dec. 1 decision.

The new regulations, known as the “incidental take” regulations, require a state Department of Environmental Conservation permit for any activity that might result in the “unintended killing, injuring or harassing” of a protected species, or any “adverse modification” of its habitat, or “any impairment of its essential behavior.”

The regulations have “sweeping impacts” on private property owners, Supervisor Sean Walter said last year after their adoption by the state — without a public hearing.

The state agency said it was merely “clarify processes and procedures” established by a patchwork of court decisions on the subject, dating back to 1999.

But local and state elected officials, as well as the L.I. Regional Planning Council, private developers and the Association for a Better Long Island disagreed, arguing that the new regs give the DEC broad new authority that exceeds the agency’s statutory jurisdiction. See Oct. 2010 story.

The regs allow the the DEC to condition the incidental take permit on the preparation of a species mitigation plan which a property owner will be required to implement. The property owner will be required to sign an implementation agreement with the DEC and post a performance bond, or some other funding acceptable to the DEC, to assure that the implementation of the species mitigation plan will be carried out.

The proposed new regulations also require the property owner to show that his “species mitigation plan will result in a net conservation benefit to the species in question.”

This requires a private property owner to bear responsibility for things well beyond his control and places a potentially impossible burden on him, Riverhead Town argued in the failed lawsuit.

While the impacts for redevelopment of the former Grumman site are huge, the supervisor said last year, the new regulations will affect all property owners everywhere in the state.

The list of endangered and threatened species is extensive and includes insects, birds, mollusks, fish, reptiles, amphibians and mammals, Walter said, many of which live in or migrate through our region. Those include tiger salamanders, terns, Northern harriers, short-eared owls, piping plovers, box turtles, ospreys, and several  types of hawks, among others, according to the DEC regulations.

Any activity that might have any impact on any of these species or their habitat would trigger the new permit requirement, Walter said.

Town Board members met with outside counsel Frank Isler to discuss the decision in executive session last week. No word yet on whether the town will appeal the decision.

Photo captions:

Top: One of the runways at the Calverton Enterprise Park last December. RiverheadLOCAL file photo by Peter Blasl.

Bottom: Eastern tiger salamander. (NYS DEC photo)