Lawsuit filed over Carmens River project
Kevin McAllister (left), biologist and founder of Defend H2O, announced litigation against the Town of Brookhaven, Suffolk County, Central Pine Barrens Commission and NYSDEC in relation to the drain-and-dredge project at Lily Lake in Yaphank.

Adv/Waszynski

Lawsuit filed over Carmens River project

Story By: RANDALL WASZYNSKI
7/25/2019


Defend H2O claims dredging of Lily Lake is violation under Clean Water Act atop inadequate permitting and deficient environmental review

 

The dredging of Lily Lake is at a halt, and Defend H2O alongside several other organizations intend to block that option in the future. The Sag Harbor-based nonprofit has filed a federal lawsuit against four entities. The announcement was made at a press conference held at the impoundment in Yaphank last Thursday. 

The Town of Brookhaven is the principal sponsor of the drain-and-dredge project at Lily Lake. The drain-down of the impoundment began in August of last year. The second phase of the project, removing sediment from the bottom, was put on hold as methods of excavation are being explored.

Kevin McAllister, biologist and founder of Defend H2O, claims that the Town of Brookhaven disregarded the obtainment of a permit from the U.S. Army Corps of Engineers, which he says is necessary in order to conduct a development project. McAllister also names Suffolk County as a responsible party in this regard.

McAllister refuted the town’s definition of “navigable” at the press conference.

“It is in fact navigable,” he said. “We have documentation in the regulations. It is connected to the Great South Bay and used all the time. This was an end-around to avoid the regulation that should be incumbent on any project of this scale.”

The second allegation thrown in the direction of the town and the county involves these two entities’ failure to comply with the State Environmental Quality Review Act by adopting improper and deficient environmental review.

“They were advised that a Positive Declaration — or a requirement for an environmental impact statement, which is a comprehensive review of potential impacts — was warranted,” McAllister said. “They dismissed it with a Negative Declaration, saying there was no need for further environmental review.”

A Brookhaven Town representative expressed that the town does not comment on pending or current litigation. Suffolk County also did not provide a response as of press time.

The next allegation focuses on the role of the Central Pine Barrens Commission, as the impoundment is located within the core of the Pine Barrens and falls under the commission’s jurisdiction. The commission initially expressed to the town in 2013 that an environmental impact statement would need to be conducted and processed in order to move forward. The commission has since backpedaled on their statement and reassessed that the project is not subject to review under the commission jurisdiction upon grounds that it is a nondevelopment project.

“In the course of the last couple years and this process, the Pine Barrens Commission went silent,” McAllister said. “They did not take any action. They abrogated their responsibility to ensure this was consistent with the protection of the Pine Barrens.”

The core of the Pine Barrens was extended southward recently to include the impoundment. MaryAnn Johnston, president of the Affiliated Brookhaven Civic Organization, pointed out that this was done to compound conservation efforts.

“Stewardship is more than just satisfying a look or an appearance,” Johnston said. “It means that you bring sustainability and vitality back to a waterway. That was the whole purpose of putting the length of the Carmans River into the Central Pine Barrens. There was no other reason to do it, and they abrogated their duty to protect it.”

A Central Pine Barrens Commission representative shared with the LI Advance that the commission has received notice of intent to sue, they are currently reviewing the relevant paperwork, and cannot comment at this time due to the possibility of pending litigation.

The fourth allegation involves violations in water-quality standards associated with the federal Clean Water Act. Though directed at the state Department of Environmental Conservation, the town and county are central to this allegation, as well.

“We have found that there are substantial portions of river that have been heavily damaged by the actions that have been undertaken here,” said Doug Swesty of Sea Run Brook Trout Coalition. “The reason for this is that the lowering of the water level of the lake by itself would not be problematic. However, doing so without taking any action to stabilize the exposed lake bottom here, which should have been necessary, allowed erosion to occur and allowed turbidity that is sediment to discharge from the lake.”

Swesty noted that turbidity levels essentially to the extent in which water clarity suffers or a distinct color difference is noticeable fall outside of state water-quality standards.

“What we saw was a muddy-brown discharge coming out of these lakes by the fact that the town and the county did nothing to stabilize this lake bottom — no cover on it, nothing — and allowed that to continue downstream,” he said.

The DEC issued a permit to the town allowing them to discharge turbidity levels that exceed the acceptable range between April 1 and Sept. 30 of 2018. Swesty claims the issuance of such is not within the DEC’s authority.

“There is federal case law on this,” he said. “The DEC does not have the ability to waive NYS water-quality regulations, and that is what was done here. In order to try to undertake this plan, which is ill considered, the state essentially sacrificed a great deal of pristine habitat downriver of this.”

The DEC is currently reviewing the notice of intent to sue and also does not comment on pending litigation.

Alongside Sea Run Brook Trout Coalition and ABCO, organizations like Save the Great South Bay and Art Flick Chapter Trout Unlimited also announced support for the litigation spearheaded by Defend H2O.

Brook trout is native to the Carmans River watershed, but now only downstream of here. George Costa of Art Flick Chapter Trout Unlimited said that it used to inhabit this impoundment as well as the upper impoundment, or Willow Lake.

“Anything we can do to restore this little fish — I know it is only a fish, but it is an important item of something that was here — back to its natural state, that would be great,” Costa said. “A river here is important to the Great South Bay because this river alone puts out some 40 million gallons per day of fresh water into the bay. And to maintain that is an important thing.”