Who’s the decider? Riverhead Town and Suffolk County Water Authority head toward ‘impasse’

The battle of the balancing tests is on.

Is the Suffolk County Water Authority subject to the local land-use regulations of the Town of Riverhead as it runs a 24-inch transmission line through the town to deliver potable water to Southold Town?

Or does the mission of the state-created authority trump the “parochial” interests of a municipality that’s literally in the path of its proposed pipeline?

The face-off between the Town of Riverhead and the Suffolk County Water Authority kicked up a notch this week when Riverhead officials issued their formal decision holding the water authority subject to the town’s zoning authority.

The Town Board on Tuesday unanimously approved a resolution finding that the Suffolk County Water Authority is not immune from local zoning and land-use regulations. 

The board’s decision Tuesday came as no surprise to anyone who’s been following the issue, as town officials had been clear about their position for months. The  8.5 mile transmission line traversing Riverhead from Flanders to Southold will burden Riverhead residents and taxpayers without providing them any benefits, town board members maintained.

Board members made no bones about it during an Aug. 19 public hearing, known as a “Monroe Balancing Test Hearing,” called to weigh the balance of the public interests involved. During that hearing, the town supervisor and council members  openly clashed with an attorney for the water authority.

“You design it, you approve it, and you do it and step all over Riverhead while doing it, with no benefit to us whatsoever,” Supervisor Tim Hubbard said during the Aug. 19 hearing. Riverhead Town will only suffer the burdens of the installation, Hubbard argued.

The four council members each backed Hubbard’s point of view, arguing that the installation of the pipeline, especially along Sound Avenue, a the major east-west thoroughfare in the town will disrupt traffic, tourism, agriculture and the local economy, unfairly burdening Riverhead residents.

The water authority last month announced it would hold its own Monroe Balancing Test hearing to determine whether it is immune from local regulation as it carries out its plan, which it calls the North Fork Pipeline. The water authority held the hearing in three sessions: first in Westhampton Tuesday evening, then in Southold Town Wednesday evening, and the third and concluding session in Riverhead last night at the Riverhead library.

Riverhead officials challenged the notion that the SCWA had the legal authority to hold a Monroe hearing. Riverhead Town Attorney Erik Howard said the Monroe balancing test should be conducted by the host community. 

“[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 told RiverheadLOCAL Oct 1.

SCWA lawyer: The balancing of public interests favor immunity

Suffolk County Water Authority CEO Jeff Szabo, Deputy CEO of Operations Joseph Pokorny, attorney Richard Finkel of Bond Schoeneck & King, outside counsel to the water authority, and John Milazzo, the authority’s general counsel conducted the hearing in the library’s meeting room last night. 

Szabo outlined SCWA’s perspective on the need for the project in Southold Town, where the water authority currently provides public water to about 9,500 customers from 60 wells across the North Fork.  The North Fork transmission line will improve the existing system to better serve those customers, ensuring adequate supply even in times of peak demand and improving water pressure and firefighting capabilities in the local communities, Szabo said. It will also position the authority to undertake a later expansion into Orient, where, he said private drinking water wells have the highest levels of PFAS in Suffolk County.  

SCWA outside counsel Finkel spoke at great length about why the balancing of the public interests favor the water authority’s immunity from local land use regulations. For approximately 20 minutes, he read from a written statement addressing, one by one, each of the nine factors spelled out by the New York Court of Appeals in its 1988 County of Monroe v. City of Rochester decision:

1. Nature and scope of the instrumentality seeking immunity
2. Encroaching government’s legislative grant of authority
3. Kind of function or land use involved
4. Effect of local land-use regulation on the enterprise
5. Alternative sites in less restrictive zones
6. Impact on legitimate local interests
7. Alternative means to provide the proposed improvement
8. Extent of the public interest served
9. Intergovernmental participation and opportunity for hearing

Local officials push back on assertion of immunity

When the hearing was opened for public comment, Riverhead Town Council Member Ken Rothwell was first up. Reading from a prepared statement he advised the water authority of the Town Board’s conclusion that SCWA is not immune from local land use regulations as it pursues its North Fork Pipeline project.

“The Suffolk County Water Authority has designed a process such that Suffolk County Water Authority attempts to fill the role of the applicant, project designer [and] reviewing entity for impacts and mitigation of [impacts] for the project,” Rothwell said. 

“The Town Board is the host community for substantial portions of the … project within the physical boundaries of the town of Riverhead,” he said. 

Citing guidance issued by New York Department of State Division of Local Government Services, Rothwell said it is within the town’s jurisdiction to determine whether Suffolk County Water Authority is immune from the town’s laws, zoning and codes. 

Rothwell then read a list of approvals and permits the town determined SCWA requires for the project, including: temporary and permanent easements, a special permit, site plan approval and building permit for its proposed booster station on Pier Avenue, highway department road opening permits, wetland permits, excavating and grading permits and, possibly, soil sample analyses if excavated soils is to be placed along town rights of way.

Rothwell submitted a letter to SCWA providing the town’s Monroe analysis and signed by Supervisor Tim Hubbard, who did not attend the hearing.

Rothwell questioned why members of the water authority board were not at the hearing and questioned the authority of water authority staff members and outside council to conduct the hearing.

Council Member Denise Merrifield also spoke at the hearing. “The SCWA pipeline project has the potential for long term and substantial impacts to the environment and immediate negative impacts on our local economy, both agricultural, tourism, traffic, roadway infrastructure and community resources,” Merrifield said. She criticized the draft scoping document as lacking details regarding issues that must be addressed in the DEIS.

“This project does not benefit any residents in the Town of Riverhead,” she said.

Southold Council Member Greg Doroski said a key point is the extent of the public interest in  installing the pipeline — not whether there is any public interest. “It’s not really an either-or proposition,” he said. 

He recited eight questions he said the SCWA should answer as part of its balancing test: 

• Whether the need for the pipeline has been established, and on what basis was it established? 
• Whether the absence of the US Geological report that the town board of the Town of Southold recently commissioned makes the findings presented in your proposal a bit premature?
• Whether the urgency created by the Suffolk County Water Authority in moving the proposal forward is artificially created? 
• Whether the existing quality and quantity of water in Orient is accurately reflected in your investigation? 
• Whether the Suffolk County Water Authority has sufficiently established its ability to bring water to the area served by phase one and two? 
• Whether there is sufficient water available in Southampton to draw from, and what are the estimates of the absolute availability? 
• Whether the recent conservation efforts of the county and the town will eliminate or reduce any alleged public need? 
• What is the growth model that was employed in the estimates? And then how has this model shifted at all? 

Doroski said Southold is currently updating its zoning code. Land Use, development potential and capacity is “very much at the center of the update,” he said. 

The municipalities should be part of the discussion as equal parties with the water authority, Doroski said. “I think I see this within the broader context of maintaining local control. I know there’s always a push and a pull between state government and local government and entities like the Suffolk County Water Authority and municipalities, but we in Southold really believe in local control and are fighting for local control,” he said.

Blass: ‘We’re headed for an impasse’

Barbara Blass of Jamesport, a former Riverhead Town Board member and former member and chairperson of the Riverhead Planning Board, questioned what the water authority was balancing and what it is seeking immunity from. SCWA decided at the outset that Riverhead has no involvement other than certain “ministerial acts.” 

Blass was referring to SCWA designating the town as an interested agency rather than an involved agency for purposes of SEQRA review. 

“Anyway, it begs the question: exactly what is the authority seeking immunity from?” she asked. 

Noting that the town has reached its conclusion that the water authority’s proposed project is not immune from local regulation and that it’s likely the water authority will come to the opposite conclusion, Blass said, “We’re headed for an impasse.”

“I’m confident that there can be a meeting of the minds. Adversarial relationships are draining and counterproductive,” she said.  “The unique circumstances inherent in this project do not lend themselves to cookie-cutter resolution,” Blass said. 

“To the members of the Suffolk County Water Authority’s board of directors and the members of the Riverhead Town Board, I ask if it’s possible to reach an agreement now, perhaps in an MOU [memorandum of agreement] which would set the ground rules and resolve their significant matters of mutual concern,” Blass said.

Joan Cear of Jamesport urged the water authority “to balance people’s need for water… with more assertive measures to encourage conservation.” Providing more water supply without conservation will simply encourage more use, she said. “This falls into the category, if you build it, they will come. If you give them more water, they will use more water. They will water their lawns twice a day,” Cear said. “So we need to encourage conservation as a means of making sure that we have water for Long Island’s future, not just for Southold’s future — and for the long term.”

If the project goes forward, Cear said, “I would urge you to relocate the North Fork portions of the project to underneath the electric transmission line easements that run from Riverhead to Mattituck and would not go along public roadways and would not disrupt traffic and businesses on those roadways.”

Mark Woolley of Riverhead said, through his work with SCWA in the past, when he was an aide to former Congressman Lee Zeldin, he knows SCWA is successful in carrying out its mission. However, he urged the authority to work on improving its communication with local governments and local residents affected by its actions.

The Monroe hearing record was left open for public comment through Oct. 15. Comments can be submitted via the SCWA website. 

There will be additional public hearings on the Draft Environmental Impact Statement after it is published, Szabo said.  The final scoping statement should be published within two weeks, he said, and the DEIS should be published this winter. The water authority hopes to have a Final Environmental Impact Statement completed in early 2026, he said.