Great Lakes Article:

Solid waste authority sues Wetlands Appeals Board
By Jerry Blair
The Herkimer Evening Telegram
07/11/03

UTICA - The Oneida-Herkimer Solid Waste Authority last week sued a state appeals board for reversal of its decision regarding a proposed landfill in the town of Ava.

The New York State Freshwater Wetlands Appeals Board on June 3 overturned a state Department of Environmental Conservation determination on Ava wetland WL-2. Exactly one month later, the Authority filed a lawsuit in the Oneida County Supreme Court to nullify the classification set forth by the appeals board.

A coalition of regional organizations have fought to stop the Ava landfill since plans were announced more than a decade ago. These landfill opponents petitioned the DEC in October 2002 to reclassify WL-2 from a Class II to a Class I wetland, which would prevent the project from getting under way. DEC officials said their investigation found insufficient information to upgrade the wetland.

A quasi-judicial body, the appeals board was created in 1976 to allow for expeditious review of decisions involving Freshwater Wetlands. According to the DEC Web site, it is an alternative forum for individuals seeking substantially the same relief as would be available through other proceedings under the Civil Practice Law.

The proposed landfill facility will impact 14 acres of state regulated wetland. In issuing its decision, the appeals board remanded the matter back to the DEC for further consideration of a bird possibly found there, the American Bittern, and whether it is a vulnerable species. The Authority filed an application for rehearing of the appeals board decision, asking that it consider if the American Bittern meets the criteria for classification change.

This should be a straightforward legal decision," Authority Executive Director Hans Arnold said. "The species is not on the list and therefore it doesn't qualify as a criterion for upgrading the wetland."

To date, the Authority has gotten no response to its rehearing request. Arnold said the lawsuit was filed to avoid missing the 30-day deadline for such a hearing. A decision in the Authority's favor would settle the wetland reclassification issue, he said. The appeals board could not be reached for comment.

According to Arnold, the Authority will create 32 acres of wetland as part of a wetland mitigation program, which includes the creation and purchase of off-site sensitive wetlands to be maintained as "forever wild."