2012 1128 short-eared owl

The state’s highest court has accepted an appeal by Riverhead Town on “incidental take” regulations adopted by the N.Y. Department of Environmental Conservation in 2010.

An appellate division panel in July affirmed the trial court’s dismissal of the action last December, ruling that the town and its co-plaintiffs Jan Burman and the Association for a Better Long Island lacked standing to bring the action.

Standing — the right to initiate a lawsuit — requires the parties to demonstrate “an actual legal stake in the matter being adjudicated,” the lower court ruled. Because the petitioners/plaintiffs “have no pending applications for a permit under the regulations,” the court said they lacked legal standing to bring the lawsuit. They could only claim “potential, speculative harm,” the court said.

The town argues that applying this standard makes it impossible to sue, because the suit must be brought within four months of the date the new regulations went into effect, because that’s not enough time to prepare and file a complete application.

“By knocking us out they’ve eviscerated the ability of any applicant to challenge these regulations,” Riverhead Supervisor Sean Walter said Tuesday afternoon. “It would be impossible to ever challenge the legality of regulations again.”

Walter said he was elated the high court granted leave to appeal. The right to bring a civil appeal to the state’s highest court, the N.Y. Court of Appeals, is not automatic. The court has to grant permission.

“I’d love to get back to arguing the merits of this case,” the supervisor said.

Walter believes the “incidental take” regulations, which took effect Nov. 3, 2010, could paralyze development initiatives at the Calverton enterprise park.

According to the regulations, a DEC permit is now required for any activity that results in, or is likely to 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.

“These are sweeping new rules that go way, way beyond the agency’s statutory authority,” Walter told RiverheadLOCAL last December, after the town board authorized a legal challenge to the new rules.

Walter was incensed that the state agency adopted the new regulations without any public hearings. A legal notice appeared in the state register in late August, which kicked off a 30-day comment period, after which the regulations were adopted.

A DEC spokesman said at the time that the new regulations simply “clarify processes and procedures” established by a patchwork of court decisions on the subject, dating back to 1999.

But Riverhead argues that the regs do much more than that, imposing new burdens on property owners that will be difficult or impossible to meet — and extremely expensive. These include the preparation and implementation of a DEC-approved “species mitigation plan” which must result in “a net conservation benefit to the species in question.”

“That’s anywhere, not just on the owner’s property,” Walter said.

If the property owner is unable to show that a net conservation benefit for the species cannot be achieved by implementing his species mitigation plan, the incidental take permit must be denied, according to the new regulations.

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.

These requirements “place onerous burdens on property owners that rightfully should be borne by the state,” Walter wrote in a five-page letter to the DEC Sept. 17, 2010, during the 30-day comment period. They will have “substantial, long-range and sweeping impacts on property rights affecting the future of development of vacant and improved land throughout the state,” he wrote.

It adds a new regulatory hurdle to the development process, Walter said. Until now, developers had to address environmental issues through the State Environmental Quality Review Act. During SEQRA, the developer had to show that it was taking mitigation measures to minimize adverse environmental impacts. Now, the developer, in a separate DEC proceeding, will have to prove that mitigation measures will actually improve the species, he said.

Walter said he worries that the new regulations will make developing the Calverton Enterprise Park even more difficult and burdensome. But, he warned, 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, he noted, many of which live in or migrate through our region. Those include terns, Northern harriers, short-eared owls, piping plovers, box turtles, ospreys, and several types of hawks, among others, according to the regulations.

The DEC is relying on its authority under the part 182 regs to order Burman to remove Superstorm Sandy-damaged vehicles from grasslands on his property at EPCAL. See separate story. The storage of vehicles on the grasslands is “an adverse modification of foraging habitat for northern harriers,” the DEC wrote in a Nov. 26 cease and desist letter to Burman. The area also “serves as winter foraging habitat” for the endangered short-eared owl, the DEC said in the letter. The adverse modification of habitat — defined as “any alteration of the occupied habitat of any species listed as endangered or threatened” that the DEC determines is “likely to negatively affect one or more of the essential behaviors of such species.” A DEC “incidental take permit” is required, the agency said. Violations are punishable by a fine of $2,350 per species per day.

In 2010, Riverhead Town, State Sen. Ken LaValle, the Long Island Regional Planning Council and others asked the DEC to hold public hearings before adopting the new regulations, but the state agency refused.

Walter said yesterday he hope’s the Court of Appeals ruling to allow the appeal will inspire the state to reconsider its refusal to hold hearings on the regs.

“I challenge the governor and the DEC to meet with the town. Let’s do what’s right for the people,” Walter said. “It’s never a good idea when different levels of governments are fighting each other,” he said.

Photo credit: (c) gjohnstonphoto / www.fotosearch.com 

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