Last week, New York’s State Legislature passed a bill (A10001) seeking to amend NYS Environmental Conservation Law (“ECL”) §23-2703 in order to protect Long Island’s sole source aquifer.  The amendment would allow local governments in Nassau and Suffolk counties the ability to prohibit sand mining operations where it is determined that mining is “inconsistent with water quality protection and public health.”  Governor Andrew Cuomo must still sign the bill for it to become law.

Long Island, with more than 20 active sand mines, has historically been a battleground pitting environmentalists against construction advocates over the long-term impacts caused by excavating sand over of the community’s sole source aquifer.  Environmentalists have long warned about the peril of removing the sand filtering layers above the aquifer, which is also considered some of the best material for the manufacturing of concrete in the world.

Although the New York State Department of Environmental Conservation (“DEC”) has sole authority over issuing mining permits under the detailed legislative scheme of ECL (§23-2701 – §23-2727), the statue currently contains the following provision with respect to the preemption of local laws: “nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements that those found herein.” ECL 23-2703[2]).  The Legislature has, in effect, provided for a State-wide standard for regulating mining, while at the same time recognizing the legitimate concerns and home rule of local municipalities.

In seeking to strike the appropriate balance between protecting Long Island’s drinking water supply and a necessary construction industry, this bill’s amendment again walks the fine line between “economically sound and stable mining industry” and “sound environmental management practices.”

Importantly, although this amendment states that local governments will have “concurrent authority” with the DEC, it cedes additional control to local municipalities to prohibit sand mining where it is found that there is contamination present or a determination that sand mining is inconsistent with water quality and public health.

The question remains how this bill with a clear nod to Long Island municipalities will allow sand mining to remain active on the island.