State’s highest court backs town’s challenge to DEC

04/01/2014 9:49 PM |
EPCAL is home to at least two endangered species. (Courtesy photo)

EPCAL is home to at least two endangered species. (Courtesy photo)

Despite striking out at the lower court and appellate court levels, Riverhead Town can challenge a set of new state Department of Environmental Conservation regulations that established stringent new rules for the protection of endangered and threatened species, the state’s highest court ruled Tuesday. 

The town, concerned about the impact the new rules would have on its attempts to develop the Enterprise Park at Calverton, had challenged the regulations on the grounds that the state adopted them without having public hearings or environmental impact studies, among other things.

“It’s the most sweeping changes to the endangered species act probably since it was instituted and nobody took a hard look at the legislation,” Riverhead Supervisor Sean Walter said at the time.

He said the regulations would make development much more difficult in areas like the Enterprise Park at Calverton, where at least two endangered species have been identified. The regulations established a formal process by which people or municipalities could obtain a permit for the hunting or trapping of endangered or threatened species of wildlife, but they would need to submit a plan to the DEC for how to minimize the impact of this “taking.”

Initially, the state supreme court ruled that the town lacked legal “standing” to bring the case and dismissed it. It also dismissed it because the challenge was made before any applications had been filed that were affected by the new regulations.

When the town appealed that ruling, the state appellate division supported the lower court ruling.

But the decision was challenged further, and the state’s highest court, the Court of Appeals,  overthrew the prior court rulings Tuesday and allowed the town to try the case on three of the four claims it had made.

The decision said the town’s allegations “are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from the public at large.”

The seven-judge panel wrote that to deny the town legal standing in this case “would have the effect of insulating these amendments from timely procedural challenge, a result that is contrary to the public interest.”

The town didn’t win the case, it merely gets to try it on the merits of its arguments, Mr. Walter said.

The one claim the town made that the Court of Appeals didn’t support was that the DEC failed to take a “hard look” before deciding it didn’t need an environmental impact study to enact the new regulations.

The town failed to allege any environmental harm in making that claim, and the town’s assertion that the regulations will impede its ability to develop the EPCAL property is not a legitimate reason to sue under the state Environmental Quality Review Act, the decision read.

tgannon@timesreview.com

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