Long Island Pine Barrens Society, Inc. v. Planning Board

178 A.D.2d 18, 581 N.Y.S.2d 803, 1992 N.Y. App. Div. LEXIS 3252
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 9, 1992
StatusPublished
Cited by3 cases

This text of 178 A.D.2d 18 (Long Island Pine Barrens Society, Inc. v. Planning Board) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long Island Pine Barrens Society, Inc. v. Planning Board, 178 A.D.2d 18, 581 N.Y.S.2d 803, 1992 N.Y. App. Div. LEXIS 3252 (N.Y. Ct. App. 1992).

Opinions

OPINION OF THE COURT

Thompson, J. P.

The principal question before us is whether the cumulative impact of proposed development in the environmentally fragile Pine Barrens area of Suffolk County must be assessed as part of the review process mandated by the New York State Environmental Quality Review Act (hereinafter SEQRA). We conclude that the appellants’ amended verified petition alleges facts sufficient to state a cause of action requiring cumulative impact review under SEQRA, and accordingly, modify the order and judgment appealed from, by reinstating the first cause of action of the amended verified petition.

I.

The core area of the Pine Barrens, comprising some 100,000 acres known as the Central Pine Barrens, is a largely undeveloped, environmentally sensitive region extending throughout the Towns of Brookhaven, Southampton and Riverhead in central Suffolk County. The Pine Barrens region is an indispensable component of the Long Island aquifer system, the sole source of drinking water for over 2,600,000 inhabitants of Nassau and Suffolk Counties. The aquifer system, the largest and most important groundwater resource in New York State, consists of several porous, waterbearing formations, which slope and gradually deepen towards the south shore of Long Island. Precipitation which infiltrates the land surface in the Pine Barrens percolates downward to the water table through the aquifer’s "Upper Glacial” layer and eventually reaches the aquifer’s lower layers, where it "recharges” or replenishes the groundwater which the system continually discharges into the surrounding environment. This process, known as "deep flow recharge”, constitutes the sole natural source of recharge waters replenishing the lower layers of the aquifer, and is essential to the maintenance of the system’s high-quality groundwater reserves. Significantly, the "recharge” waters which emanate from the Central Pine Barrens radiate outwards toward all portions of the aquifer contributing to the dilution of contaminants which have permeated it.

The high soil permeability of the Central Pine Barrens, and [22]*22naturally low nutrient levels, together with the absence of extensive development, have made it the largest and highest quality "deep flow recharge” area on Long Island. Although the Pine Barrens soils are ideal for the storage and discharge of precipitation, they lack the capacity to filter out or degrade contaminants, which, as a consequence, enter into the groundwater. Once the groundwater becomes contaminated, it may take hundreds of years before the contaminants can be assimilated by the natural processes of the aquifer system. Such contaminants pose a serious and lasting threat to the groundwater reserves contained in the system.

In 1978, and pursuant to Federal Water Pollution Control Act § 208 (33 USC § 1288), the Long Island Regional Planning Board issued the "Long Island Comprehensive Waste Treatment Management Plan”, the first public planning document to address the importance of preventing groundwater degradation within the Pine Barrens. The so-called "208 Plan” identified the key areas of "deep flow” recharge and established eight "hydrogeologic zones” on Long Island, so designated in light of their importance as groundwater supply sources. Hydrogeologic Zone III represents the area of "deep flow recharge” which generally coincides with the boundaries of the Central Pine Barrens. Although the plan notes that the nearby zones in Nassau and Suffolk Counties have sustained significant contamination, it identifies Zone III as possessing "[e]xceptionally high water quality and high potential yields”. The "208 Plan” recommends, moreover, that sources of "deep flow” recharge such as the Central Pine Barrens, which contribute to the lower layers of the aquifer system, "should be subjected to the strictest management controls”.

Various levels of government have recognized the critical ecological importance of Zone III and its impact on Long Island’s drinking water (see, Safe Drinking Water Act, as amended, 42 USC § 300h-3; Long Island Groundwater Management Plan; Local Laws, 1984, No. 7 of Suffolk County; Local Laws, 1987, No. 24 of Suffolk County; Local Laws, 1987, No. 40 of Suffolk County). In 1978, the United States Environmental Protection Agency (hereinafter EPA) designated the Long Island aquifer system as one of the first four "sole source” aquifers in the country under the Safe Drinking Water Act (see, 42 USC § 300h-3 [e]). Notably, a "sole source” aquifer is "an aquifer which is the sole or principal drinking water source for the area and which, if contaminated, would create a significant hazard to public health” (42 USC § 300h-3 [e]). In [23]*23designating the Long Island aquifer system as a "sole source” aquifer, the EPA observed that "the aquifer system underlying Nassau and Suffolk Counties * * * is vulnerable to contamination through its recharge zone” and further stated that, "[s]ince contamination of a ground-water aquifer can be difficult or impossible to reverse, contamination of the aquifer system underlying Nassau and Suffolk Counties, New York, would pose a significant hazard to those people dependent on the aquifer system for drinking purposes” (Aquifers Underlying Nassau and Suffolk Counties, New York, 43 Fed Reg 26611, 26612).

In 1983, the Legislature enacted the so-called Long Island Landfill Law (ECL 27-0704), which prohibited the disposal of solid waste in landfills in Nassau and Suffolk Counties. Accompanying the statute are legislative findings which reveal the significance attributed by the Legislature to the preservation of the Long Island aquifer system. Specifically, the Legislature found that the "land burial and disposal of domestic, municipal and industrial solid waste poses a significant threat to the quality of groundwater and therefore the quality of drinking water in the counties of Nassau and Suffolk * * * since the potable water supply for the counties is derived from a sole source aquifer” (L 1983, ch 299 § 1; ECL 27-0704; see also, Governor’s approval mem 1983 NY Legis Ann, at 135).

In 1987, and in response to mounting concerns regarding the integrity of the State’s groundwater resources, the New York State Legislature enacted the Sole Source Aquifer Protection Law (ECL art 55) and designated the Central Pine Barrens as one of nine "special groundwater protection areas” in the State (ECL 55-0113 [1] [g]). The statute defines a "[s]pecial groundwater protection area” as a "recharge watershed area * * * which is particularly important for the maintenance of large volumes of high quality groundwater for long periods of time” (ECL 55-0107 [3]). ECL 55-0101, which enunciates the policy objectives underlying the adoption of ECL article 55, states, inter alia, that, "[i]t is declared to be the policy of this state to provide funds for the preparation and implementation of groundwater watershed protection plans in order to maintain existing water quality in special groundwater protection areas within federally designated sole source aquifer[s]”.

The legislative findings contained in ECL 55-0103 reflect the framers’ conclusion that groundwater contamination constitutes a dangerous, potentially irreversible threat to the State’s [24]*24water supply, requiring timely, preventive steps rather than costly, after-the-fact clean-up measures (ECL 55-0103 [3]).

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Related

PINE BARRENS v. Planning Bd.
80 N.Y.2d 500 (New York Court of Appeals, 1992)
Long Island Pine Barrens Society, Inc. v. Planning Board of Brookhaven
80 N.Y.2d 500 (New York Court of Appeals, 1992)
Town of East Hampton v. Cuomo
179 A.D.2d 337 (Appellate Division of the Supreme Court of New York, 1992)

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Bluebook (online)
178 A.D.2d 18, 581 N.Y.S.2d 803, 1992 N.Y. App. Div. LEXIS 3252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-island-pine-barrens-society-inc-v-planning-board-nyappdiv-1992.