Our Baykeeper Wins Two!
by Cile Downs
Baykeeper Kevin McAllister and his talented and hardworking legal staff have, just this past year, achieved two important victories in court that are of great interest and relevance to APC.
First, the State Supreme Court ruled in his favor last January in a case involving Southampton Trustees’ issuance of a permit for expansion of a marina on Shinnecock Bay in state and federally designated fish and wildlife habitat that supported active shellfish harvests. A marina in such a place is, to begin with, a bad mistake since any marina encourages boating that could damage bottomland, increase pollution and bring about a need for dredging and its ensuing damage. In an area with pristine waters, an expansion of a marina should be unthinkable.
A key aspect of the judge’s decision was the ruling that the Trustees are in fact an agency of the state and, as such, are obligated to comply with the State Environmental Quality Review Act (SEQRA). This should set an important precedent, especially as it requires Trustees to coordinate their environmental review with other regulatory agencies before issuing any further permits.
Secondly, the almost ten-year struggle to induce Suffolk County to recognize the primacy of the federal Clean Water Act (CWA) has ended in a settlement that includes some good changes. It terminates policies like depositing dredge spoil on wetlands, allowing pollutants to reach bay and creek waters through mosquito ditches, and discharging restricted pesticides into surface waters.
The Baykeeper tried for years to convince Suffolk County to adopt scientifically valid methods of mosquito control that do not threaten the health of our waters, the fish and shellfish that live in them, and our own well-being. Finding the County unresponsive, he went to court, and won the above-mentioned improvements. Further, the practice of mosquito ditching was ended by County Executive Steve Levy, who demonstrated considerable courage against opposed county bureaucrats.
Also, the EPA’s Clean Water Act pesticide exemptions were questioned, and finally struck down by a U.S. Court of Appeals. The spraying of pesticides from trucks and planes over open water is now recognized as point-source discharges that must obtain permits under CWA. There is also a 100-foot setback from open water for spraying of adulticides except in special circumstances that require waivers. The Baykeeper warns that continued vigilance will be necessary, but we see all this as some big steps in the right direction.
