In 1991, the State Legislature enacted Chapter 166 of the Laws of 1991 establishing the regulatory framework for mining in New York State. Specifically, Section 23-2703(3) was enacted, which provides a stricter regulatory structure for Long Island than the rest of the state of New York and an increased role for Long Island local governments.

On Long Island, the law provides that “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer,if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.”

The law clearly states that if the local zoning law prohibits mining at the site of the application, it cannot be considered complete or processed. There could not be a clearer directive from the State Legislature to the DEC. The State shall not permit mining on Long Island where it is prohibited by local zoning. It is designed to insure that home rule is respected and that there is a balance between the legitimate pursuit of mining and the protection of Long Island’s water quality.

This statute is not an isolated pronouncement, but part of the overall intent of the Legislature to protect water quality on Long Island, which procures all of its drinking water from underground aquifers. The Legislature has enacted numerous water quality protection measures only for Long Island, including but not limited to the Long Island Landfill Law, the Central Pine Barrens Act, the Peconic Bay Region Community Preservation Fund, the establishment of Special Groundwater Protection Areas (SGPAs), and special regulations for land clearing debris and composting. All of these laws have as their purpose the protection of Long Island’s water quality.

This policy is not limited simply to regulatory enactments, but also capital investment. State and local governments have spent billions of dollars to protect water quality by implementing land preservation programs over our sole source aquifers and upgrading our water quality infrastructure, such as sewage treatment plants or septic system upgrades.

The Legislature’s rationale for providing a more protective regulatory structure for sand mining on Long Island is simple. The activities that are permitted above the aquifer can adversely impact our drinking water. Sand is the filter that cleanses Long Island’s groundwater. Reducing the filter or exposing the water table completely by authorizing industrial uses above deep flow recharge areas is a threat to the aquifer. 

The record of the DEC with regard to sand mining and the protection of water quality is there for all to see. The DEC has consistently ignored and thwarted the intent of the State Legislature to balance water quality protection with the impacts of sand mining. Instead they have been a rubberstamp for the industry at the expense of Long Island’s declining water quality.

By convoluted and tortured interpretations of simple English, the DEC has ignored the environmental concerns of local governments in direct opposition to the intent of the State Legislature. Without a single word in the statute to support their position, DEC has erroneously determined that major expansions of sand mines are somehow not subject to the law, which prohibits them from granting permits where local zoning prohibits mining.

It is not simply the DEC’s failure to follow this particular law. In spite of the expressed intent of the Legislature that mining can pose a risk to water quality, the DEC has never utilized SEQRA to require the preparation of an environmental impact statement (EIS) for a new mine or mine expansion. The threshold is low for an EIS. It is required whenever an action may have a significant adverse impact on the environment.

Further, the DEC has failed to require groundwater monitoring at most mining sites, even when a county health department report demonstrated that pollution exceeded state and federal groundwater and drinking water standards.

The DEC has consistently ignored both the letter and spirit of state law to rubberstamp mining expansions. They have approved expansions in residential areas, over SGPAs, where pollution has been documented, and when the expansion would actually expose the aquifer.

Town governments are thankfully acting in the absence of the DEC to protect water quality on Long Island, as envisioned by Section 27-0703(3). Four (4) eastern Long Island towns are involved in pending legal actions against the DEC to defend their legitimate zoning authority to protect our water quality.

The Appellate Division, Third Department has rendered a decision on this issue supporting the Towns’ position. It is currently the highest and best legal authority on this point. They found that the DEC cannot process or approve mining applications where mining is prohibited by local zoning. They found that the DEC violated the law and annulled all permits granted in that case in the Town of Southampton.

In addition to litigation, a Suffolk County Grand Jury issued a report with regard to illegal dumping and sand mining. Issued before the Appellate Division decision, implicit in the grand jury report was the finding that the DEC had failed to protect water quality in Suffolk. They recommended additional legislation that would restore the role of local governments intended by the Legislature to regulate mining when necessary to protect water quality.

That legislation, A.10001, was introduced by Senator Kaminsky and me and was overwhelmingly approved in both houses of the State Legislature. This legislation would never have been necessary if the DEC had followed the clear meaning of the Section 23-2703(3) in the first place, now confirmed by the Appellate Division. On the recommendation of the DEC, the bill was vetoed, and the DEC was directed to conduct this study. 

First, it is noted that the DEC didn’t even begin to initiate the investigation directed by the veto message issued last December until after it had lost its case in the Appellate Division. Suddenly, this study came to the forefront not as a means to protect drinking water, but for the DEC to bolster its obsession to permit mining on Long Island without limitation, regardless of court decisions and the environmental impact.

Second, the Legislature determined long ago that mining above the most sensitive water recharge areas may have an adverse impact on water quality. Such uses should be subject to strict scrutiny. There has been nothing in the intervening 30 years to change this equation. If anything, given the continuing trends of water quality degradation on Long Island resulting from incompatible industrial activity, even more scrutiny is required. The report of the Suffolk County Grand Jury and the study of the Suffolk County Department of Health Services that found contamination at a mine in Southampton Town only confirms this fact. Instead, the DEC wants to use this study to undermine this legislative policy, not improve it.

Finally, the DEC has proven it does not possess the objectivity necessary to conduct such a study. In the litigation involving the Towns referred to supra, the DEC has submitted affidavit after affidavit alleging there are no adverse environmental impacts from mining. When the Suffolk County Department of Health Services found contamination at a mine located in a residential area over an SGPA in the Town of Southampton, the DEC’s response was to trash the professionalism of SCDHS, despite the fact the County has been the gold standard for water quality testing on Long Island and the DEC has relied on their work in other cases for decades.

Whether it is their position in litigation, ignoring a health department report documenting pollution at a Long Island sand mine, their failure to ever ask for an EIS, or rubberstamping every mining expansion, it is clear that the DEC has pre-determined the outcome of this study. The DEC should not be investigating the impacts of sand mining on water quality on Long Island. Rather, it is the failure the DEC to properly protect Long Island’s water quality that should be investigated.

The billions of tax dollars invested to reverse the trend of declining water quality on Long Island are wasted, if the agency empowered to protect water quality ignores the very laws designed to protect water quality.

Participation in this study by responsible stakeholders would give credibility where it is not deserved. Instead of wasting time and money on continued litigation and a study conducted by a biased state agency, the more prudent course of action for New York State would be to drop the appeal of the Appellate Division decision and to work with the Towns on a comprehensive solution that would truly balance the needs of industry and the environment.