DEP Environmental Protection Invoices, 1999-2001

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sewer facilities and public utility lines. do not serve just the parkland above, including water tunnels, have becnbuilt or maintained without temporary Nor is it disputed that many of these projects could not New York State law relating to alienation disruption of the park surface for construction and upkeep.3

these projects had in fact been approved 50n oral argument, questions arose as to whether past practices. I afforded the parties an by the State Legislature and as to the significance of directed to this issue. The AG and the opportunity to submit supplemental affidavits and briefs been obtained for infrastructure private plaintiffs argue that State legislative approval has often were not authorized by State projects, and the AG argues further that, even if some projects compliance with legal legislation, these instances do not estop the State from enforcing examples where the State Legislature requirements. Their supplemental submissions cite many easements in parkland for such projects, enacted legislation authorizing conveyance of parkland or comparable to the WTP project. Notably, the but these examples involve circumstances that are not the private plaintiffs involve in examples of State legislative approval furnished by the AG and entity to either a front a government most instances the conveyance of interests in parkland a.sewer district) or to private different gove nment entity (e.g., from a town to a county or to example cited by the AG is L. 1980, c. entities, which is classic alienation of parkland. A typical permanent easement on parkland to Westchester 390, authorizing the City of Peekskill to convey a do not establish that State County for construction and maintenance of a sewer. Such examples a separate government entity. legislative approval is required where no interest is conveyed to parkland from one government entity to Indeed, the Legislature also approves the conveyance of conveyance of parkland to the County another for its continued use as parkland, as with Peekskill's enactnt:nt of the law relied upon by the AG. in a law, L. 1980, c. 389, immediately preceding or a portion of the surface Other instances cited entail discontinuance of the use of parkland surface to its use as parkland. See L. 1988, C. of it, unlike Isere, where the City will fully restore the operate an underground water pipeline and 371 (authorizing Town of Greenburgh to construct and West 72"d Street subway station; at-grade pumping station); L. 1998, c. 497 (expansion of Authority); L. 1980, c. 396 authorizes conveyance of City parkland to Metropolitan Transportation development of natural gas fields on (City of Dunkirk authorized to engage in exploration and construction of rail and subway lines parkland). The parties' references to certain laws authorizing privately owned when the 1875 and 1891 are unhelpful. The railroad and subway companies were expressly prohibited use of parkland for railway laws cited by the AG were enacted. The 1875 law, railway commissioners to permit use of routes, L. 1875, c.606, § 4, and limited the authority of the laws modified this prohibition in parkland to facilitate construction. Id. § 26, Q5. Subsequent and certain stations under parkland, L. limited respects so as to allow construction of subway lines interests in parkland. L. 1909, c. 558. 1891, c. 4, § 4, or to allow a railway line to use or acquire parkland for railway projects. See N.Y. Later State legislation eased restrictions on use of City imposes similar prohibitions or Rapid Transit L. § 50 (f). No State statute cited by the parties projects, and the WTP will not be restrictions on the use of land underneath parks for water supply privately owned. is more striking for the The compilation of statutes by the AG and the private plaintiffs parkland in New York City for paucity of State legislation relating either to underground use of 17

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