Jun. 01, 2021

Whiteman Osterman & Hanna Successfully Represents Towns in Long Island in an Amicus Brief with the Third Department To Protect the Long Island Aquifer

Whiteman Osterman & Hanna co-managing partner John J. Henry and associate Gabriella R. Levine, members of the Firm’s litigation and appeals practice, and partner and general counsel Daniel A. Ruzow, recently obtained a favorable decision from the Appellate Division, Third Department, upholding the zoning power of municipalities in Long Island to regulate and prohibit changes and expansions to sand and gravel mines in counties that draw their drinking water from Long Island’s sole source aquifer system.

The Third Department considered a novel issue of state law concerning whether the New York State Department of Conservation is permitted to process or approve a mine modification permit that seeks to vertically expand a mine to depths closer to the sole source aquifer in a county with a population of one million or more that relies on the aquifer system for its drinking water source, when local zoning laws prohibits mining.

The Third Department adopted the Firm’s argument and held that the New York State Mined Land Reclamation Law provides special protections to these counties by prohibiting NYSDEC from processing or approving modification permits that seek to vertically deepen a mine if local zoning laws prohibit mining in the area proposed. The decision is a victory for the preservation of Long Island’s vulnerable drinking water supply, which serves over 2.8 million people.

The Firm is proud to have represented amici curiae the Town of East Hampton, the Town of Riverhead and Edward P. Romaine in his capacity as Town Supervisor of the Town of Brookhaven in filing an amicus brief with the Third Department in this landmark case. The County of Suffolk joined in the amicus brief filed by the Firm. The Town of East Hampton, the Town of Riverhead and the Town of Brookhaven are located in the County of Suffolk, which relies on the sole source aquifer to provide drinking water to county residents. A copy of the amicus brief can be found here:  Amicus Brief.pdf