Southold Town has commenced legal action against the New York State Department of Environmental Conservation, hoping to force them to open up some of the town’s most valuable bodies of water, which have been closed to the public due to pollution that simply doesn’t exist, officials said this week.
At last night’s meeting, the town board passed a resolution directing Town Attorney Bill Duffy to commence legal action in the form of an Article 78 proceeding in Suffolk County Supreme Court against the New York State DEC to “compel” the agency to “maintain water quality testing as required by law.”
According to Southold Town Supervisor Scott Russell, “The town is trying to force the DEC to perform its function regarding water testing. This is critical at establishing the health of our creeks. These tests determine whether or not these water bodies can be opened for shellfish harvesting. Many of our creeks are closed not because of their health but because the DEC hasn’t tested them.”
Russell said it’s “clear” that the public and baymen are being denied access to perfectly health creeks, with hands tied by red tape because the DEC has not been out to test the waters.
“Under current law only the results of the DEC lab can be used to make these determinations. Independent labs cannot. When we request that the DEC should then test these water bodies, the agency says it doesn’t have the manpower. The result is that the public is being denied access to creeks that have been established to be safe and healthy by our independent testing. Some of these have been closed for years because they haven’t been tested by the DEC in years,” Russell said.
The board first discussed the issue back in February, when, according to Southold Town Engineer Michael Collins, who oversees the town’s stormwater management program, a number of closures have been blamed, by the New York State DEC, on general and municipal stormwater runoff.
In New York State, Collins said, only one laboratory is qualified for verification. “The perception is that all of the shellfish closures that occur in the state are due to stormwater runoff pollution, but the reality is that the DEC’s program is grossly underfunded, with a lack of resources to test waters in the state,” he said.
The bottom line, he said, is that water bodies are closed to shellfishing without any actual testing being done. The water, he said, could be clean and safe for shellfishing.
In order to use a second lab — Cornell was one possibility — Collins said that lab would need to be verified. “We’ve had no success with getting the DEC to open a second lab,” he said.
Some of the North Fork’s “most productive waters”, including Hashamomuck Pond and Hallock Bay “have not been adequately tested in 20 years,” he said.
Meanwhile, shellfish beds are closed due to poor water quality, but “that’s their assumption,” Collins said. “When you look at data, in certain cases, you can find no link between an increase in rainfall and high bacteria counts. In some cases, it’s the opposite, the rain flushes it out and there’s less bacteria.”
The goal, Collins said, is to discern whether waters are polluted, and if they are, whether that pollution is caused by man, and can be remedied, or by wildlife.
In Southold, due to an aggressive stormwater abatement program by trustees, much of that pollution has been eradicated, Collins said.
Russell said the problem is that the municipal separate storm sewer system, or MS4 program, is a federal program that requires a wildlife management plan, one that can’t be implemented just under the town’s authority; the state DEC is required and is “reluctant to allow the town to expand its’ needs to get a handle on wildlife,” he said.
Without additional testing, it may never be determined if waters are polluted and if so, how to remedy the issues, Collins said.
Once a water body is closed, “to get it reopened is hard,” he added.
In addition, Collins said, shellfish closures have been reclassified as either due to polluted water quality, or for administrative reasons.
The further east you go in Southold, most closures are administrative, meaning the water is likely clean but closed due to precautions against nearby marinas or sewage treatment plants, Collins said.
The problem, he added, is that DEC laboratory units are so “strapped for resources” that they “cannot take in our samples for re-analysis,” he said.
Also, in order to take rainfall samples, the town must wait for a rainfall event of greater than one inch, they must be taken within 96 hours, and taken to the lab between Mondays and Thursdays. “And even with meeting all those conditions they say they are sorry but they are backed up that week,” Collins said.
Russell said the town has limited resources and the DEC needs to help. “We are more than willing to take steps to protect our water bodies, but they need to take steps to know which water bodies need protecting. They are not doing X, so that we can do Y.”
The livelihood of baymen is affected, Collins added, because they are unable to harvest clams. “They don’t have access to vast areas of underwater land because of the unwillingness of bureaucracy to do its job.”
Suffolk County Legislator Al Krupski said the town, trustees, and county had worked hard for openings at road endings and other areas. “It’s not just the commercial aspect. It’s quality of life. People should be able to go out and get a clam if the water is clean,” he said.
“We have regulations on waters now that are clean and have never been contaminated,” Collins said. “We don’t have infinite resources and this is falling mostly upon deaf ears.”
The DEC, Collins said, “knows that the regulations are wrong, and knows they need to be fixed, but they answer is they don’t have the resources to fix these regulations. Logic is not going to win the day here.”
He added that the problem needed to be solved on the state political level.
Councilwoman Jill Doherty suggested the East End towns come together to address the problem.
“The problem is endemic. It affects us all,” Collins agreed.
“If it was me, personally, I’d say ‘Let’s sue the suckers,” Councilman Bill Ruland said in January, adding that waters were closed that had never been tested. “They’re standing here with a big hammer saying ‘no’”. What’s more offensive to shellfishermen is that someone would stand in their way with no pertinent definite information.”
And, Collins added, “If we do this right, we have the potential to bring this resource back, for people to make a living on our bays again, which is our right.”
Property values are also affected, Russell said, with no one wanting to live near polluted creeks.
“This has been festering too long, for years,” Krupski said, adding that the county had a stake in the issue, with waterways an economic generator.
Cutchogue resident Ray Huntington applauded the board’s decision. “I”m extremely proud they’re going to fight. It’s a totally ridiculous situation,” he said.
The New York State DEC did not immediately return a request for comment.
