Suffolk Water Authority sets hearings to decide its own immunity from local rules for pipeline project

The Suffolk County Water Authority will hold three public hearings next week on whether it is subject to local zoning codes in connection with its proposed North Fork Pipeline project.

The proposed transmission line is needed to bring drinking water to SCWA  customers on the North Fork, the water authority says. The new water main will traverse the Town of Riverhead from Flanders to Southold Town, including along Sound Avenue from Northville Turnpike to the Southold Town line. The first phase of the project calls for the installation of a little over  eight miles of 24-inch water main and the construction of a booster station on a 1.5-acre parcel owned by SCWA on Pier Avenue just north of Sound Avenue.

The water authority, which declared itself lead agency for purposes of environmental review, claims it is exempt from local town code requirements. Riverhead officials disagree.

The “Monroe Balancing Test,” named for a 1988 case decided by New York’s highest court — Matter of County of Monroe v. City of Rochester — in which the court introduced the “balancing of public interests” test to resolve intergovernmental land use conflicts. 

The Court of Appeals in Monroe articulated nine factors municipalities must weigh in deciding whether another governmental entity is immune from local regulation.  Under the Monroe test, an encroaching municipality must show that, on the balance of the nine factors, the proposed land by another municipality benefits the public. 

Riverhead Town convened a Monroe hearing of its own on Aug. 19. An attorney for the water authority testified at the hearing, as did several town residents. The town has not yet issued a determination.

Riverhead Town Attorney Erik Howard questioned SCWA’s authority to hold the Monroe hearings.

“The guidance issued by the [ N.Y. Department of State]  Division of Local Government Services is clear that the balancing test should be conducted by the host community and it is apparent that SCWA is not a ‘host community’ for the purposes of the balancing test — at least as it pertains to Riverhead since they do not service any properties in Town,” Howard wrote in an email this afternoon.

He said while the town cannot prevent SCWA from conducting its own balancing test, “there would certainly be a basis for litigation if they, after conducting their own self-serving analysis, were to determine that they had the ability to evade Riverhead Town zoning and land use codes and regulations.”

The town will issue its determination following its own Monroe hearing and will expect SCWA to comply with the town’s findings, Howard said.  

“Absent some agreement to the contrary, in the event SCWA fails to comply with the Monroe determination the Town adopts, we will seek judicial intervention,” Howard said.

The Suffolk County Water Authority is “very confident in both our right to hold the hearings and in our immunity,” a spokesperson for the authority said this afternoon. 

“The Town of Riverhead has tried to insert itself by holding its own hearing— just the latest attempt to take over the process and delay a project that will bring a safe, sustainable supply of high-quality water to the North Fork while protecting the fragile aquiferm” SCWA spokesperson Dan Dubois said.   

He cited the 2017 decision by the Appellate Division, Second Department, in which the court affirmed that water suppliers are entitled to make Monroe determinations. “We remain committed to following the law and moving this project forward,” Dubois said.

The town had no notice of the upcoming hearings being held by the water authority and learned from a reporter they’d been scheduled, Howard said.

“SCWA’s strong-arm tactics to date coupled with the failure to produce any specifics concerning the path of the water main,  I assume they’d prefer that we don’t participate in what I view as an entirely self-serving and performative public hearing,” he said.