The Town of Riverhead is facing an uphill battle in its dispute with the Suffolk County Water Authority over a plan to build an underground water pipeline that would run through Riverhead to the edge of Southold, according to interviews with New York lawyers who specialize in land use and municipal law.
The Riverhead Town Board and the water authority are each conducting their own independent Monroe balancing tests — a nine-factor legal analysis that weighs whether the public need for a regional project outweighs a host community’s zoning and land-use controls.
At stake is whether the water authority, a state-created public benefit corporation, can declare itself immune from Riverhead’s local zoning laws for a project that would move millions of gallons of water east beneath Riverhead’s roads to supply residents of Southold.
Riverhead officials say the plan would cause months or years of disruption for “zero benefit” to the town, while SCWA argues it is carrying out its statutory duty to deliver safe drinking water across Suffolk County.
In a 2017 case, Manhasset-Lakeville Water District v. Village of Munsey Park, an appellate court upheld Monroe immunity for a water district facility despite local zoning restrictions. That decision affirmed the proposition that a water authority can make its own Monroe determination and obtain immunity when the balance favors a regional public interest project.
At the first of its three Monroe hearings this week, SCWA outside counsel Richard Finkel cited the Munsey Park precedent.
“To the extent that there’s a dispute as to who is the body that should make this determination,” Finkel said, the appellate division “affirmed a lower court decision that said the water district was within its rights to make the Monroe balancing determination — notwithstanding that the apparatus was going to be located in the village itself.
“So that kind of brings us to where we are today.”
At the same hearing Tuesday night in Westhampton, SCWA CEO Jeff Szabo for the first time put the timeline for completion of the pipeline installation through Riverhead at “under a year,” far shorter than the previously-projected one to five years.
Szabo said that the water authority is soliciting public comments on its Monroe balancing test at https://www.scwa.com/nfp-comment/ until Oct. 15 at 5 p.m.
On Tuesday night, Riverhead’s Town Board concluded its Monroe test, unanimously voting that the water authority is not immune from the town’s zoning code.
‘Time and money’
Interviews with municipal and land-use attorneys around the state suggest that the Munsey Park ruling tilts in the water authority’s favor, but that the facts in Riverhead may complicate the equation.
“It seems to be a fairly recent case that deals with a similar situation,” said Scott Olson, a land-use and municipal law attorney from the Troy-based firm Young Sommer. “But obviously the devil is in the details. Are there any differences between what’s happening in Riverhead and Munsey Park? That’s what the two sides are going to have to hash out.”
Daniel Richmond, a partner at Zarin & Steinmetz in White Plains and a specialist in the State Environmental Quality Review Act, said the law remains far from settled.
“The law is not clear that the test should be done in the first instance by any agency,” he said. “Courts have wrestled with whether the [lead] agency should do it, and I don’t think there’s a clear answer.”
Practically speaking, he said, “both agencies are obviously getting ready for a court challenge” — each building the best possible administrative record for eventual litigation.
Richmond noted that the state Department of Environmental Conservation has already designated SCWA as the “lead agency” under SEQRA, giving it control over the scope and preparation of the project’s environmental impact statement. “It would make sense for them to do a Monroe analysis to set forth their rationale for why they believe they’re exempt,” he said.
Olson agreed that the standoff is headed for court.
“You’re going to end up in Supreme Court, where a judge will decide who’s right and who’s wrong,” he said. “The court may try for a settlement, but if there’s no likelihood of settlement, it will be either immune or it’s not immune.”
If the water authority prevails, it would still have to complete the SEQRA process and obtain ministerial permits. If Riverhead wins, the authority would have to navigate the town’s full land-use process. “Either way,” Olson said, “it’s just a shame it’s going to take so much time and money to resolve.”
‘Adversarial relationship’
For Riverhead officials, the legal arguments are layered atop months of frustration. The proposed 8.5-mile, 24-inch transmission main would start in Flanders, run north along County Road 105, then east on Sound Avenue before connecting with Southold’s water system. A potential second phase could eventually extend from East Marion to Orient.
The authority says the line is necessary to supply clean drinking water to parts of Southold where private wells are failing. The water, SCWA officials have emphasized, would come not from Riverhead’s supply but from high-capacity wells in the Pine Barrens in Flanders, part of what the authority describes as the “South Shore Low Zone.”
Riverhead Water District Superintendent Frank Mancini, who spent a decade at SCWA, has questioned the water authority’s premise. “Seventy percent of the water we produce as drinking water suppliers is used for irrigating lawns,” Mancini said at a forum in August. “We probably need to rein that in before we commit to water withdrawal from the Central Pine Barrens. This is our last line of defense.”
Mancini said the idea of a North Fork pipeline has been in SCWA’s strategic plans for decades, dating back to a failed effort to take over Riverhead’s water district in the early 2000s. “That was the birth of an adversarial relationship,” he said. “They’ve called it ‘manifest destiny’ — taking over our system.”
The tension was visible at hearings over the summer, where Riverhead officials and residents pressed the water authority for details they say still haven’t been provided — including engineering plans, construction staging areas and restoration timelines.
Riverhead environmental consultant Jeffrey Seeman described the proposal as little more than “a line on a map.”
‘A major deficiency’
That lack of information has fueled a larger dispute about process. The water authority’s position is that as lead agency under SEQRA and as a regional utility established by the state, it has broad discretion to proceed with projects in the public interest. Riverhead officials insist they must be treated as an “involved agency” because the pipeline crosses town roads, wetlands and rights of way — triggering local permits and reviews.
“That’s a major deficiency,” Riverhead Town Attorney Erik Howard said in August of the town’s limited status in the SEQRA process. “So much of the project is going to affect the Town of Riverhead specifically — and the project isn’t designed to help Riverhead at all, so our focus has to be on protecting legitimate local interests.”
Howard also objected to the water authority’s decision to conduct its own Monroe test. “That’s a conflict of interest,” he said. “Why would you ever tell yourself you can’t do something you want to do?”
At Riverhead’s Monroe hearing in August, that sentiment hardened into open confrontation.
Supervisor Tim Hubbard accused the authority of “playing fox in the henhouse,” telling SCWA attorney Brody Smith: “You design it, you approve it, and you do it — and step all over Riverhead while doing it with no benefit to us whatsoever.”
Councilman Ken Rothwell contended that the water authority is “selling water to the Town of Southold at the expense of Riverhead taxpayers. What are we gaining from this project? Nothing.”
Smith countered that whether Riverhead benefits directly is “not one of the Monroe factors.” He said the project is a “regional problem that requires a regional solution.”
Legal opinions diverge
Not all the land use attorneys interviewed agree on who should even be conducting the Monroe tests now underway.
Merrick-based attorney Andrew Campanelli — who is representing homeowners suing the Town of Riverhead in a separate cell tower dispute — said that neither the Town Board nor the water authority should be handling them.
“In theory, the only body that should be conducting a Monroe balancing test would probably be the Town of Riverhead’s Planning Board or Zoning Board of Appeals,” Campanelli said, “because they’re the ones required to undergo annual training in balancing impacts and fashioning mitigations. Town Board members are not trained to conduct any balancing tests. And on the flip side, nobody at the Suffolk County Water Authority has ever been trained to conduct a balancing test.”
Olson disagreed, saying that “either a Town Board or a planning or zoning board can do the nine-part analysis, as long as they have counsel to walk them through it. It’s not incredibly difficult to do — it’s more or less common sense.”
Richmond said “the law is unclear, so both sides are doing the right thing by building the best record they can for a judge to review.”
Southold
While Southold would ultimately benefit from the new supply, its leaders have been among the most outspoken critics of the project’s pace and process. Town Board member Greg Doroski has urged Southold and Riverhead to present a united front. “The water authority has this idea of manifest destiny,” he said. “There’s a fundamental question for us all to ask: Whose water is this?”
Southold Supervisor Al Krupski has called for more robust groundwater modeling before any inter-aquifer transfers, warning that “moving water across watershed and aquifer boundaries without integrating U.S. Geological Survey data is not resource management.”
Still, there are residents in Orient, Southold’s easternmost hamlet, dealing with “forever chemical” contamination, who are desperate for clean water. At a SCWA session in June, Orient resident Peter Schembri said his well is contaminated with perfluorooctyl bromide (PFOB).
“You can’t cook the chemical out of the water. I can’t drink the water. I can’t boil the water. I can’t shower with the water, they’re telling me,” he said, referring to county health officials. “So what are we supposed to do?”
SEQRA
Richmond, the White Plains attorney, noted that many recent Monroe cases involve cell towers — projects courts often deem immune because of a clear public benefit. “I don’t think anyone would contest that potable drinking water is in the public interest.”
Rather, he said, the challenge is procedural.
“Courts want to see transparency, data and a rational explanation.”
That’s where SEQRA may play a decisive role. SCWA’s decision to prepare a full environmental impact statement “sets the stage for opportunities for public input and review, which the courts consider,” Richmond said. He suggested that the EIS must evaluate growth-inducing impacts — a concern in Southold — and route alternatives, which Riverhead officials have sought.
“If SCWA does a healthy SEQRA review,” Richmond said, “it strengthens its Monroe case because the court will see a thorough, data-driven process.”
Olson agreed, calling the EIS “a record-building exercise as much as an environmental one.” Even if SCWA wins Monroe immunity, he said, “they still have to go through SEQRA.” If Riverhead wins, the lead-agency designation already in place “will make things a little complicated, but not impossible.”
Campanelli, by contrast, warned that “winning the right way matters.”
If the Monroe decision isn’t made by a trained zoning board or if SCWA’s statutory powers are narrower than it claims, he said, “Riverhead may still land a punch in court, or at least force concessions.”
‘A workable truce’
All three attorneys agreed on two things: litigation appears all but inevitable, and potable water is a high-gravity public good that courts weigh heavily in Monroe disputes. The ultimate decision, Olson said, “comes down to balancing a regional need against temporary local impacts — road cuts, traffic, construction noise.”
Between those poles lies a broad middle ground. Richmond said courts often nudge parties toward negotiated settlements. “It’s common and often more advantageous to arrive at a workable truce.” Olson agreed that a negotiated settlement might be the most pragmatic outcome.
Campanelli, while skeptical of both sides’ procedures, pointed out that once the trench is buried, few physical traces will remain.
“The pipeline’s underground profile undercuts many classic zoning impacts,” he said.
At Monday’s SCWA hearing in Westhampton, CEO Jeff Szabo said for the first time that the authority could finish the project in less than a year.
“We anticipate that we would be able to install [a pipeline] from the South Shore Low Zone, through Riverhead, into Southold, and we could do all of that work in less than a year. We have talked previously about anywhere from a year to five years. But most definitely, we can move very quickly to complete that portion of the project.”
He cited a 60,000-foot SCWA pipeline recently installed in Manorville in less than a year, and said the proposed pipeline is planned to be about 42,000 feet.
Yet Riverhead residents and town leaders said the core question remains unchanged: Who decides what happens under Riverhead’s roads and whose interests will those decisions ultimately serve?