A recent decision by the NY Appellate Division, Third Division, may change the way you conduct your environmental review of impacts to threatened and endangered species. In this case, the court ruled that the Town of Liberty Planning Board erred when they relied on letters from the NYS Department of Conservation to determine that no threatened or endangered species would be affected by the site plan they were reviewing.

The project involved a 143 acre tract that was being divided into 27 lots for single family homes. The Town Planning Board declared itself the lead agency under the State Environmental Quality Review Act (SEQRA). After reviewing the documentation and conducting a public hearing, the Board issued a negative declaration of environmental significance.

Opponents of the project brought an Article 78 proceeding to annul the decision. They claimed that the Board failed to take the requisite hard look at the potential environmental impact of the project to wildlife.

During their SEQRA analysis, the Board reviewed letters from the NYS Department of Environmental Conservation (NYSDEC), specifically from their National Heritage Program and Bureau of Wildlife. The letters indicated that the NYSDEC databases contained no record of known occurrences of threatened or endangered wildlife species on or in the immediate vicinity of the project. In one such letter, the DEC cautioned that studies of the area had not been performed and that their information should not be substituted for on-site surveys. These surveys were not performed.

In making their negative declaration, the Board relied on the NYSDEC letters, a report on the age of the forest on the property, and data that the majority of the land was abandoned agricultural land that was reverting back to woodland.

There was no explanation, however, of how these factors led to the Board conclusion that there would be no impact on wildlife, despite the concerns raised by the public. As a result, the court held that the Board failed to properly identify the impact of the development on wildlife, contrary to the mandates of SEQRA. Their determination that there would be no significant impact on wildlife was held to be arbitrary and was vacated.

What This Means to You: For anyone trying to get their site plan approved, this ruling could present practical difficulties as well as additional cost. If studies are undertaken, how diverse should they be without records of existence to set the scope? If there are no known cases covering decades, if not a century, why look at all? Also, some species are transient, thus complicating the scope of field studies.

In the eyes of the Third Division Appellate Court anyway, it would appear that relying on NYSDEC input on the existence of threatened or endangered species will no longer suffice for your SEQRA documentation. At a minimum, having a botanist walk through your site to look for special habitat areas may become the norm.

This article was written using excerpts from the court decision, which may be read at http://decisions.courts.state.ny.us./ad3/decisions/2008/504955.pdf