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Judge rules Greig water law invalid, but upholds ZBA decision

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LOWVILLE — A judge has struck down the town of Greig’s 2010 water-extraction law, ruling that the state has exclusive oversight of water regulation.

However, Supreme Court Judge Hugh A. Gilbert, in an 11-page decision filed Thursday in the Lewis County clerk’s office, affirmed the town Zoning Board of Appeals’ ruling that the controversial Hidden Falls Spring Water project off Sweeney Road should not be considered a pre-existing use and would require new permitting.

The court agreed with petitioning landowners John T. and Lynn L. Smoke, Bangor, Pa., that the local law “was enacted to control and regulate water resources, which is an area over which the State has exclusive jurisdiction,” Judge Gilbert wrote. “Nevertheless, these owners are still confronted by their prior failures to obtain the necessary permit to use the wells for anything but a private, non-commercial use.”

For the past decade, the Smokes have been working to develop a facility for the collection, bulk storage and shipment of spring water, but many residents have opposed it. In response, the Smokes have proposed building a facility off Burdicks Crossing Road in the town of Turin and constructing a water line under the Black River to connect the spring on their Greig property with the proposed building.

The Smokes, in a lawsuit filed in February by attorney Raymond A. Meier, sought invalidation of the town’s 2-year-old water law and the ZBA decision, claiming Greig officials have made “a concerted and continuous course of conduct aimed at thwarting” their project.

“I’ve been telling town officials for two years that they’re not allowed to do that,” Mr. Meier said of the water regulation.

While pleased with the annulment of the local water law, he said, he plans to review the judge’s decision further and talk with his clients before determining how to proceed.

Mr. Meier said there will be further discussions with Greig officials, but he also entertained the possibility of a partial appeal of the court ruling.

Judge Gilbert wrote that the Smokes’ application for a special-use permit for the pipeline “would appear to be premature” without the town’s first permitting commercial use of the wells.

Mr. Meier contends that the pipeline permit from the town would be the only one the Smokes needed to finally move forward with the project, more than a decade in the works.

Mark G. Gebo, Greig’s town attorney, said he also plans to review the decision and obtain input from the Town Council before deciding whether to file some type of appeal.

“Parts of it are favorable, and parts of it are not,” Mr. Gebo said.

In his decision, Judge Gilbert noted that local municipalities have the authority to regulate land use. However, he cited a section of state Environmental Conservation Law stating that the control of water resources “is vested exclusively in the state of New York, except to the extent of any delegation of power to the United States.”

Judge Gilbert heard oral arguments in the case June 26.

The state Department of Environmental Conservation approved several permits for the project in October 2010. However, with an expected maximum flow of 288,000 gallons per day, the project would be subject to a new state law requiring an additional permit, and greater DEC regulation, for withdrawals of 100,000 gallons or more of water per day.

It was during the DEC review that the Town Council passed the restrictive water law. It would have required that a commercial water operator obtain a town permit, disclose a maximum withdrawal amount and provide a detailed hydrogeological study showing that the project would not have an adverse effect on the environment or local aquifers.

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