Riverhead wins decade-old lawsuit challenging new endangered species regulations adopted by DEC without public hearing

A State Supreme Court judge in Albany County has sided with the Town of Riverhead in a decade-old lawsuit challenging regulations adopted by the State DEC in 2010 to protect endangered species.

In a Feb. 18 decision, the court ruled the new regulations null and void because the Department of Environmental Conservation failed to hold a public hearing on the regulations prior to adopting them. A public hearing is required by the State Environmental Conservation Law and the state agency’s failure to comply with the hearing requirement “renders a regulation defectively promulgated,” wrote Acting Supreme Court Justice James Ferreira.

The DEC is enjoined from enforcing the regulations, the judge ruled.

The DEC adopted regulations, effective Nov. 2, 2010, that required a DEC permit 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.

The regulations required, as condition of the “incidental take” permit, the preparation and implementation of a DEC-approved “species mitigation plan” which must result in “a net conservation benefit to the species in question.” If no net conservation benefit could be established, the regulations required denial of the permit.

Riverhead Town sued the DEC over the regulations in 2011, arguing that the failure to hold a public hearing prior to adopting the rules made the adoption illegal.

The DEC argued that no public hearing was necessary because the regulations did not establish new standards or criteria but “instead clarified and codified DEC’s pre-existing standards and or criteria for incidental take permitting.” The agency pointed to four incidental take permits it had issued prior to the 2010 regulations as evidence that DEC was already using the permitting requirements set forth in the regulations.

The judge didn’t buy the state’s argument. The DEC’s “contentions… are not supported by any language in the controlling statute,” the judge wrote.

“The statute does not limit the public hearing requirement to the enactment of new environmental standards or criteria which have never been applied by DEC, and does not carve out any exception for the codification of criteria or standards that have already been informally applied by DEC in the past.”

The town was represented in the suit by Frank Isler of Smith, Finkelstein, Lundberg, Isler and Yakaboski.

Riverhead Town challenged the regulations in 2011 because town officials believed they would have “substantial, long-range and sweeping impacts on property rights affecting the future of development of vacant and improved land throughout the state” — and in particular, the Enterprise Park at Calverton, according to written comments on the proposed regulations by then-Riverhead Supervisor Sean Walter.

“These are sweeping new rules that go way, way beyond the agency’s statutory authority,” Walter said in a 2010 interview.

The trial court initially ruled, on Dec. 1, 2011, that the plaintiffs lacked standing to sue and the mere adoption of regulations did not create a controversy “ripe” for judicial review.

The town appealed the decision but an Appellate Division panel in July 2012 affirmed the lower court’s decision.

The state’s highest court in November 2012 agreed to hear Riverhead’s appeal. On April 1, 2014, the N.Y. Court of Appeals held that the town had standing to challenge the regulations and that its causes of action were ripe for review by a court. The Court of Appeals sent the case back to the trial court and in July 2015 it was assigned to Ferreira.

But the lawsuit was held “in abeyance” by the court at the request of the parties, who told the judge they were engaged in settlement negotiations.

The town was hoping to secure, through those negotiations, the DEC’s agreement to key aspects of its land subdivision application at the EPCAL site, according to town officials. Those negotiations eventually broke down without an agreement being reached.

The EPCAL subdivision application remains pending before the Riverhead Planning Board, which granted preliminary approval in June 2019.

In order to gain final approval, the town must first obtain a Wild, Scenic and Recreational Rivers Act permit from the DEC. In a notice of incomplete application in connection with that permit request, the DEC said the town, which prepared and submitted a comprehensive habitat protection plan for the site, may also be required to obtain an incidental take permit under the regulations invalidated by the State Supreme Court in Albany this month.