On the Docket

Peconic Baykeeper has brought several proceedings under Article 78 of the C.P.L.R. based upon the County’s failure to conduct adequate environmental review of the Division of Vector Control’s mosquito control activities as required by the State Environmental Quality Review Act (SEQRA). After bringing the first proceeding in 2002 (Peconic I, see below), Suffolk County agreed that it needed to prepare an Environmental Impact Statement to study and develop its multi-year mosquito control plan. Thereafter, Suffolk County has proceeded with “annual plans” that Peconic Baykeeper has challenged on various SEQRA grounds. The gist of these proceedings is that Suffolk County cannot continue its wetlands ditching and unrestricted pesticide applications until the EIS is complete and unbiased science provides a rational basis to balance the public interest in view of the efficacy and adverse environmental impacts of such activities.

2005 Developments:

January 12, 2005: Peconic Baykeeper commenced a proceeding to challenge the County’s approval of Vector Control’s 2005 Plan of Work (Peconic IV, see below).

January 24, 2005: County Executive Stevy Levy repudiates the mechanized ditching of wetlands in 2005, acknowledging that such ditching is not useful for controlling mosquitoes while destroying valuable habitat. See page 6 of Levy's 2005 State of the County address to read the reversed position on ditching. This statement follows the County’s approval of the 2005 Vector Control Plan of Work that permits the mechanized reconstruction of nearly 80 miles of these wetland ditches, a plan challenged by Peconic Baykeeper in Peconic IV. This plan has not been retracted by the County.

February 22, 2005: New York State Supreme Court Justice Paul J. Baisley, Jr., denies Suffolk County’s and NYS DEC’s motion to dismiss Peconic Baykeeper v. NYS DEC.

February 24, 2005: New York State Supreme Court, Appellate Division, heard oral arguments in the appeals of Peconic I and Peconic II.

PECONIC I:

In May 2002, Peconic Baykeeper brought its first proceeding against Suffolk County for the County’s negative determination of significance (or “neg dec”) of the 2002 Vector Control plan of work, determining that this work “will not have a significant adverse impact” on the environment.

The case was dismissed as moot after the close of the year 2002. Peconic Baykeeper had filed a motion to reargue and review based upon the extension of the 2002 plan of work into 2003 which was denied. The decisions are currently on appeal at the appellate division.

PECONIC II:

In April 2003, Peconic Baykeeper brought a second suit against Suffolk County for the extension of the 2002 plan of work into 2003. The County designated this extension as a Type II action which would not require SEQRA review. Peconic Baykeeper challenged the County on charges this was not a Type II action and that a multi-year plan of work was being segmented into annual work plans so as to avoid review of the whole impact. Peconic Baykeeper also brought a motion to supplement the record to include the extension of the 2002 plan of work into 2004.

In April 2004, Peconic Baykeeper won this case. Describing the Type II designation as “arbitrary and capricious and an abuse of discretion,” Judge Baisley annulled the SEQRA determination, determined the action to be Type I, and called for an immediate halt to the County’s work under this mosquito management plan. Suffolk County has appealed this judgment.

PECONIC III:

In April 2004, under similar circumstances as the bringing of the PECONIC II suit, PECONIC III was filed for the extension of the 2002 plan of work into 2004 on the same premises as the previous suit. While Baykeeper had asked, by motion, the court to consider this same issue in Peconic II, the court had not yet made its decision, so this proceeding was brought because the statute of limitations was about to expire.

A victorious decision was issued for Peconic Baykeeper in October 2004 based upon the same, if more obvious, reasons as the verdict in PECONIC II.

PBK v. NYS DEC and SUFFOLK COUNTY:

In August 2004, Peconic Baykeeper initiated a separate suit based on the issuance by the Department of Environmental Conservation (DEC) of a tidal wetlands permit for Vector Control’s water management activities including the reconstruction and expansion of 75 miles of ditches. This suit is currently pending.

In related litigation, the Town of Southampton Board of Trustees brought its own proceeding against the County on the same basic premise as Peconic Baykeeper. In addition, the Trustees alleged that such illegal activities adversely and unconstitutionally affected lands owned by the Trustees.

THE FEDERAL CLEAN WATER ACT

In November 2004, Peconic Baykeeper initiated a citizen suit under the Clean Water Act, charging that Suffolk County violated federal law through: filling wetlands with dredge spoil, discharging pollutants through mosquito ditches into estuarine waters, and discharging pesticides into surface waters. This suit is currently pending.

PECONIC IV:

In January 2005, Peconic Baykeeper challenged the County’s approval of the 2005 Vector Control Plan of Work and joined DEC as a respondent to prevent DEC’s issuance of tidal wetlands permits to undertake the plan. The 2005 Plan is materially identical to the plans previously annulled by the court. Objections to the County’s approval of this plan were submitted to the Suffolk County Council on Environmental Quality by the Town of East Hampton, the Southampton and Southold Board’s of Trustees, and the Conservation Advisory Committee of the Town of Brookhaven.