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lIt Page 100 Land Use Law Report June 18, 2003 Roadside Ditch (Continued from page 99) quality, is sufficient to allow the Corps to reasona- bly determine that it has jurisdiction over the whole tributary system of any navigable waterway, the court declared. The court's opinion is available from BPI's DocuDial service, No. 39-4827,20p. Environmental Review: Town Board Bound by Lead Agerdy Determination, Court Rules The New York Court of Appeals has ruled a town environmental agency that had the opportu- nity to participate in a coordinated environmental review of a proposed project, but did not act on it, is bound by the lead agency's declaration that the project had no significant environmental impact (Gordon v. Rush, No. 70, June 5, 2003). Storms during the winter of 1992 -93 caused significant erosion of the beaches in Bridgehamp- ton, in the Long Island town of Southampton. Oceanfront property owners requested permission from the town to install steel bulkheads on the sea- ward side of the beach's primary dune, to reduce further erosion. They also submitted permit appli- cations to the state Department of Environmental Conservation (DEC), which also had jurisdiction because the bulkheads would be built within tidal wetlands. The town's Coastal Erosion Hazard Area (CEHA) administrator advised DEC that the town did not want to assume lead agency status over the coordinated review under the State Environmental Quality Review Act ( SEQRA) because the project could have impacts beyond the local level. State Agency Finds No Impact DEC agreed to take lead agency status, and af- ter getting the applicants' agreement to move the proposed bulkheads to the landward side of the primary dune, issued a negative declaration finding no environmental impact statement had to be pre- pared because there would not be a significant im- pact on the environment. When the landowners submitted their amended applications to the CEHA administrator, he refused to issue permits because placing the bulkheads landward of the primary dune was prohibited by the town code. The landowners appealed to the town's Coastal Erosion Hazard Board of Review. It decided to conduct a new SEQRA review. In 1995, the board issued a resolution declaring itself the lead agency and making a positive declaration requiring the landowners to prepare a draft environmental impact statement. The landowners sued to overturn the board's resolution. The trial court annulled the resolution, and the intermediate appellate court af- firmed the trial court's ruling. Board Slept on Its Rights The Court of Appeals noted the DEC acted as lead agency for the coordinated SEQRA review at the request of the town's CEHA administrator. As the primary liaison with DEC under the CEHA, the administrator received copies of both DEC's letter to the landowners listing options for modifying their permit applications and the negative declara- tions of environmental impact. The board thus had notice of those matters and yet failed to advise DEC of any relevant concerns, as it should have done pursuant to SEQRA regulations. The board did not voice its objections until af- ter receiving copies of the negative declarations and the tidal wetlands permits. Its decision to conduct an independent review was unauthorized, the court said. It was bound by DEC's negative declaration, which properly identified the agencies involved and notified those agencies of its decision. If the board wished to challenge the issuance of the tidal wet- lands permits, it should have proceeded by way of a court petition to review them. DEC's decision to issue a negative declaration was not irrational, an abuse of discretion, or arbitrary and capricious. Consequently, the court concluded, it should not be disturbed. The court's opinion is available from BPI's DocuDial service, No. 39 -4828, 5 p. The Special Report: The Outlook for U.S. Military Construction & Housing: Fiscal 2003 -2004 is now available! Developing business opportunities is much more diffi- cult during this time of economic uncertainty. But the op- portunities are there, even if they may be harder to deter- mine. This Special Report provides you with a complete list- ing of commercial opportunities available from government programs in military construction and housing. Included within this publication is an overview of the federal budgets for 2003 and 2004, followed by project -by- project listings and their individual appropriations. This Special Report also features an exclusive perspec- tive on the current and future state of the U.S. Military Con- struction and Housing market. This is your opportunity to know where the most lucrative business opportunities are and to stay ahead of your competition! For more information, call Customer Service at 1 -800- 274 -6737 or e -mail at custsery @bpinexs.conr. © 2003 Business Publishers, Inc. All rights reserved.