Carmel Water District #13 - Ruling, March 15, 2002
Ruling, March 15, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of the Town of Carmel Water District No. 13 for
a Water Supply Permit pursuant to Environmental Conservation Law Article 15, Title 15
RULING ON ISSUES AND PARTY STATUS
DEC Application No. 3-3720-00306-00001
Water Supply Ap. No. 10145
March 15, 2002
Table of Contents
Standards for identifying issues for adjudication
Applicant's position with regard to the draft permit
Water quality certification and Corps of Engineers review
Water supply permit standards
Other sources of water supply
Adequacy of the supply
Protection of water supply
"Just and equitable" standard
The Town of Carmel applied for a water supply permit for use of wells to supply water to 42 existing houses in the Rolling Greens subdivision and a 9-lot subdivision on which houses have not yet been built. On June 4, 2001, the DEC Staff issued a negative declaration under the State Environmental Quality Review Act ("SEQRA"), determining that no environmental impact statement was necessary regarding the application. The DEC Staff prepared a draft permit but also stated that they were willing to consider revisions to the draft permit in response to comments at the hearing. The present rulings grant party status in the adjudicatory hearing to two intervenors: the Coalition for the Preservation of Rolling Greens; and Wayne and Frances Schrader and BYC Kennel Corp. The rulings also find that the Town of Carmel may proceed as the applicant in this matter despite the fact that Water District No. 13 has not yet been formed.
Additional information will be required related to whether or not a permit from the U.S. Army Corps of Engineers, and a related water quality certification by DEC, will be necessary for the project. Issues exist requiring adjudication about the following water supply permit standards: whether the particular water supply which is proposed is justified by the public necessity (although no substantive dispute exists regarding whether public water supply to a portion of Rolling Greens is necessary); whether the Applicant properly considered other sources of water supply that are or may become available; whether the supply will be adequate to meet the needs of the proposed service area; and whether the project is just and equitable to all affected municipalities and their inhabitants with regard to their present and future needs for sources of water supply. The measures necessary to protect the area around the wells is also identified as an issue for adjudication, but this is an issue which the parties may be able to settle without adjudication. The SEQRA determination is remanded to the DEC Staff for a redetermination for reasons discussed in the rulings.
The Town of Carmel, 60 McAlpin Avenue, Mahopac, New York 10541 (the "Applicant" or the "Town") applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for a water supply permit to take a supply of potable water from wells in the Town of Carmel for use by a water district to be formed at a later date (Carmel Water District No. 13, also referred to as Rolling Greens Water District). The initial application was received by DEC's Region 3 Office on February 1, 2001. Following two submittals of additional information by the Town, DEC Region 3 determined on June 4, 2001 that the application was complete and referred the application to the DEC Office of Hearings and Mediation Services in early October, 2001.
The proposed water supply would average 12 gallons per minute ("gpm") from four wells to serve 42 existing homes and the 9-lot Baldwin Estates residential subdivision on which no houses exist at present. The wells are numbered 1 through 4 and have rated capacities of 18.5, 8, 3, and 19.5 gpm, respectively. Well #3, at 3 gpm, may not be used in calculating the safe yield of the water supply system but may be retained for use as a backup or auxiliary well. The 42 existing homes are located on various streets adjacent to Baldwin Estates and the well field is located on a lot set aside for water supply uses in Baldwin Estates. Both areas are located east of Baldwin Place Road, in the Town of Carmel, Putnam County, New York.
The application requested a water supply permit pursuant to Environmental Conservation Law ("ECL") Article 15, Title 15 and Part 601 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 601", Water Supply Applications). The hearing is being held pursuant to 6 NYCRR Part 624 (Permit Hearing Procedures).
Pursuant to the State Environmental Quality Review Act ("SEQRA," ECL Article 8 and 6 NYCRR Part 617), the DEC Staff determined that the project is an unlisted action and will not have a significant impact on the environment. A negative declaration stating this determination is on file. A coordinated review was not performed.
A notice of hearing was published in the DEC's Environmental Notice Bulletin on November 7, 2001, in the Putnam County Press on November 14, 2001, and in the Taconic Press newspapers on November 15, 2001. The notice was also mailed to the town and county in which the project is located, and to other persons known or believed to have an interest in the project.
The hearing began on the evening of January 8, 2002 with a legislative (public statement) hearing at the Carmel Town Hall, before Susan J. DuBois, Administrative Law Judge ("ALJ"). Approximately 90 persons attended, of whom 31 made statements regarding the project. Several persons submitted written materials at the hearing. The opinions of the speakers were divided, with more persons speaking in favor of the proposal than against it.
The hearing continued with an issues conference at the Carmel Town Hall on January 9 and 10, 2002.
The Applicant is represented in this hearing by Thomas J. Costello, Esq., Town Counsel, Mahopac, New York. The DEC Staff is represented by Carol Backman Krebs, Esq., Assistant Regional Attorney, DEC Region 3, New Paltz, New York.
Two intervenors submitted petitions for full party status in an adjudicatory hearing regarding the application(1) and are represented as follows. The Coalition for the Preservation of Rolling Greens ("CPRG") is represented by James Bryan Bacon, Esq., New Paltz, New York. Wayne and Frances Schrader and the BYC Kennel Corporation, doing business as Stone Meadow Kennels (the "Schraders") are represented by G. Brian Morgan, Esq., of the firm of Jacobowitz and Gubits, LLP, Walden, New York.
Following the issues conference, the parties and prospective parties submitted correspondence regarding several subjects discussed at the conference. I received the initial correspondence on or about January 25 and the replies on or about February 8, 2002. The January 25, 2002 correspondence included a January 23, 2002 revised draft permit, submitted by the DEC Region 3 Staff. I received the transcripts of the legislative hearing and issues conference on February 22, 2002.
The approximate location of the proposed wells, and of various residential subdivisions and other landmarks referred to in the present ruling, are shown on the attached map (Appendix A of this ruling). A more detailed map showing the boundaries of Water District No.13, as currently proposed, is also attached (Appendix B). The wells are located within the New York City watershed, specifically the Muscoot Reservoir watershed.
6 NYCRR Section 624.5(d) provides that full party status will be granted based on: "(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(i) and (2) of this section [the filing and contents of petitions]; (ii) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and (iii) a demonstration of adequate environmental interest." In addition, the DEC Staff and the Applicant are mandatory full parties pursuant to 6 NYCRR Section 624.5(a).
The notice of hearing identified the Applicant as "Town of Carmel, Water District No. 13 (also known as Rolling Greens Water District)." Based on the discussion at the issues conference and in the subsequent correspondence, the Applicant would be more accurately identified as the Town of Carmel. The Town is applying for a Water Supply permit and anticipates completing formation of the water district after receiving notice of the DEC's intention to grant the requested permit (see February 7, 2002 correspondence from Mr. Costello).
The January 23, 2002 revised draft permit contains a Special Condition No. 1 which reads: "Prior to the construction of any portion of the water supply and distribution system approved herein, the permittee shall complete the formation of the Carmel Water District #13 (Rolling Greens) and shall forward proof of its formation to the Regional Permit Administrator in the Region 3 Headquarters in New Paltz." This revised draft permit identifies the permittee as "Town of Carmel, Water District #13 (Rolling Greens)." As discussed below, there is a disputed issue regarding what measures the permittee should take if the use of the Water District No. 13 wells diminishes the use of private wells nearby. In connection with this, the identity of the permittee who would need to undertake such measures may need to be clarified (i.e., would the Town of Carmel be responsible for this or would the Carmel Water District #13 be responsible for this).
At the issues conference, counsel for the Schraders argued that the Town of Carmel does not have the authority to apply for a water supply permit prior to the establishment of the water district (Transcript, p. 238 - 239). Both the Town and the Schraders asked for an opportunity to submit arguments on this in writing. This subject was discussed in letters dated January 23 and 24, 2002 from these two parties and a letter dated February 7, 2002 from the Town. The DEC Staff did not comment on this subject, other than to respond to the statement near the end of the Schrader's letter regarding review under SEQRA. The DEC Staff's understanding of the relationship between the application process and the establishment of the district can be interpreted in part from the draft permit provisions cited in the previous paragraph. The DEC Staff have not indicated that there would be any barrier to the Town proceeding with the application, and they have included a draft permit condition that takes formation of the district into account.
The Schrader's letter of January 23, 2002 stated that there is no authority in the State Constitution or statutes for a town to file an application for a water supply permit on behalf of a district that does not exist. Attached with this letter was an informal Opinion of the State Comptroller (Opinion 82-6) which concludes that providing for water supply and distribution generally is not a town purpose. The Opinion also concludes that the installation of public water mains in the described circumstances (in an area outside any existing water district, in which there was the potential for groundwater contamination from a landfill, with the water supply work to be funded by increased dumping fees at the landfill) is not a town function or purpose and that the town(2) may not issue obligations to finance such installation. This Opinion considered whether a town might install water mains or issue obligations for such installation, not whether a town might apply for a DEC water supply permit in preparation for formation of a water district, and the Opinion does not support the Schrader's position.
As discussed in the Town's correspondence, the Town's power to submit a water supply application for a proposed town water district is included a town's powers under Town Law Section 209-b and 209-c. These sections allow a town board to appropriate money for preparation of a map and other documents for an improvement district,(3) and describe the information which these must contain and their review by the New York State Department of Health. The Town also argued that it would be a legal impossibility for the Town to form the new district prior to applying for a water supply permit and receiving an indication that the permit will issue upon formation of the district. The sequence of events outlined by the Town and contained Special Condition No. 1 of the January 23, 2002 draft permit is rational and consistent with the laws and regulations cited, and is not contradicted by the Comptroller's Opinion provided by the Schraders, although it is not specifically spelled out in ECL Article 15, Title 15 or 6 NYCRR Part 601.
The only portion of this question (of the Town's authority with regard to water supply activities) which is relevant to this DEC permit hearing is the question of whether the Town has authority to apply to the DEC for a water supply permit. The other arguments raised by the Schraders, concerning whether the Town had complied with SEQRA or the referendum procedure under the Town Law with regard to its expenditure of money on studies regarding Water District No. 13, are not relevant to the DEC permit application review, except to the extent that DEC's SEQRA determination relied on the Town's determinations. Other challenges to the Town's actions with regard to establishing the district and paying for studies would need to be made in another forum.
Ruling: The Town of Carmel may proceed as the applicant in the present hearing.
At the issues conference, the Applicant challenged CPRG's standing to intervene in the hearing. This subject was also discussed in correspondence from the Applicant and CPRG dated January 23 and 24 and February 7, 2002. The DEC Staff stated at the issues conference that they had no objection as of that date, but would like to reserve comment until after reviewing the documentation which CPRG was going to submit (Tr. 189). In their February 7, 2002 correspondence, the DEC Staff made no objection to CPRG's participation as a party.
The Applicant objected to CPRG's participation for several reasons, including that CPRG's purposes as an organization would not allow it to intervene in the current hearing, that the members of the group and the dates on which they had joined had not been identified, that CPRG represents only a small fraction of the residents of Rolling Greens, and that the petition contains no independent analysis or reports of data collected by CPRG. Both the Applicant's correspondence and that of CPRG also contained arguments regarding whether CPRG had raised any issues for adjudication.
CPRG provided a list of its membership in its January 23 correspondence, and the dates on which the members had joined (all of which are before the issues conference) in its February 7, correspondence. CPRG argued that it meets the factors cited in Douglaston Civic Association v. Galvin (36 N.Y.2d 1 (1974)) regarding standing, including that it is a not-for-profit corporation that has the ability to participate in administrative proceedings in furtherance of its corporate purposes, that its members could have petitioned for party status individually, that it represents 23 members in the Rolling Greens neighborhood who have participated in various proceedings related to the water district, that their water supplies are within the zone of interest to be protected, and that public participation in water supply applications would be thwarted if an intervenor had to conduct its own well pumping tests. In its January 24, 2002 correspondence, CPRG also stated that certain of the individual members of CPRG were requesting party status as individuals, for the same reasons as stated in CPRG's petition for party status. The Applicant responded that the deadline for petitions for party status had passed, and that Mr. Bacon had not shown that he was authorized to act on behalf of any of the individual property owners.
Both parties made arguments in the context of the Douglaston decision, although the Applicant also criticized CPRG's citation of this case since it dealt with standing to commence an Article 78 proceeding regarding a zoning decision. The criteria for having party status in a DEC permit hearing, however, are those contained in 6 NYCRR 624.5(d), cited above. This subdivision in turn makes reference to 6 NYCRR 624.5(b) which identifies the required contents of a petition for party status, as follows: "(i) fully identify the proposed party together with the name(s) of the person or persons who will act as representative of the party; (ii) identify petitioner's environmental interest in the proceeding; (iii) identify any interest relating to statutes administered by the department relevant to the project; (iv) identify whether the petition is for full party or amicus status; (v) identify the precise grounds for opposition or support."
In addition, 6 NYCRR 624.5(b)(2) identifies the additional contents required in a petition for full party status: "(i) identify an issue for adjudication which meets the criteria of section 624.4(c) of this Part; and (ii) present an offer of proof specifying the witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect to that issue."
CPRG's petition meets the criteria for party status. It identifies environmental interests and the relevant statutes including standards for issuance of a water supply permit and the requirements of SEQRA. CPRG and its representative are identified in the petition, and in the later correspondence the membership of CPRG have been identified in detail.(4) The grounds for opposition were stated in detail, with references to the ECL and related regulations and to letters and other documentation attached to the petition as exhibits. These exhibits included letters from a hydrogeologist and from an engineer retained by CPRG to review aspects of the application, and whose testimony was offered by CPRG. As discussed below, CPRG has raised issues requiring adjudication, some of which overlap with those raised by the Schraders.
With regard to the late individual requests for party status, such requests are allowed under the DEC's permit hearing procedures even after the deadline for petitions for party status, if the requirements of 6 NYCRR 624.5(c) are met. Persons requesting party status late must show good cause for doing so, demonstrate that their participation will not delay the proceeding or unreasonably prejudice the other parties, and demonstrate that their participation will materially assist in the determination of issues.
At the issues conference, I inquired whether the Applicant would argue that neither Matthew Bennett or Robert Mongelli (the officers of CPRG) would have standing had they requested party status as individuals. Counsel for the Applicant replied that the Applicant would not object (Tr. 182). Both Mr. Bennett and Mr. Mongelli are among the persons for whom CPRG's January 23, 2002 correspondence requests individual party status.
The January 23, 2002 correspondence requests full party status individually for all of the members of CPRG, with the exception of the two members who chose to remain anonymous. The environmental interests identified include cumulative impacts of the water district proposal and two subdivisions alleged to be dependent upon the water district proposal; for 11 of the individuals (six households), potential impacts on their domestic water wells based upon the drawdown observed during the pump tests; and for four individuals (two households), their location adjacent to the proposed well site. Counsel for CPRG argued that since the issues and witnesses proposed by the individuals are the same as those proposed by CPRG, participation by the individuals would not produce delay or prejudice. It appears likely that the reason why the request for party status for the individuals was made after the deadline for petitions is that CPRG and its members did not anticipate a challenge to their standing to participate as a group. Local organizations have participated in numerous DEC permit hearings in the past. As discussed above, CPRG's petition for party status meets the criteria for party status, and there would not have been a need for the individuals to request party status in addition if they anticipated that their environmental interest as a group was adequate.
Had the members of CPRG petitioned for party status as individuals, rather than as an organization, with petitions that all identified the same issues and witnesses and with representation by the same person, I almost certainly would have consolidated them as one party anyway. Consolidation of parties with similar viewpoints and input is provided for in 6 NYCRR 624.8(b)(xi), and serves to make the hearing process more efficient. The individuals for whom party status was requested will be parties to the hearing, but their participation will be consolidated with that of CPRG. Granting of party status to the individuals would make no difference in the conduct of the hearing unless the Commissioner, in response to an appeal, decides that CPRG does not have party status but some or all of the individuals do.
The Applicant raised a procedural point which will need to be resolved, however. The January 23, 2002 correspondence from CPRG suggests, but does not clearly state, that Mr. Bacon is authorized by each of the individuals to represent them in this hearing. Mr. Bacon will need to confirm that he is authorized to represent the individual parties.
Ruling: CPRG has full party status in the hearing. In addition, each of the individuals identified in CPRG's January 23, 2002 correspondence has full party status in the hearing.(5) The participation of CPRG and the individual members is consolidated, and the consolidated party will be referred to as "CPRG" in the remainder of this ruling unless the organization or particular individuals are specified instead.
The Applicant objected to the Schraders receiving party status, not based on lack of standing but on the Applicant's assertion that the pump tests indicate that the Schraders water supply will not be impacted and that therefore the Schraders have not identified an adjudicable issue. As discussed below, however, impacts on the aquifer and wells near the water district has been shown to be a substantive and significant issue. The Schraders have both a well and rights to a spring house that is located very close to the four wells. The testimony proposed by the Schraders can also make a meaningful contribution to the record regarding issues raised by both consolidated intervenors.
Ruling: Wayne and Frances Schrader and BYC Kennel Corp. doing business as Stone Meadow Kennels ("the Schraders") have full party status in the hearing.
The Mahopac Central School District was mentioned by participants in the issues conference, in connection with water use by the wells on the school campus across Baldwin Place Road from the proposed water supply wells. On March 21, 2001 and June 14, 2001, the School District had written to the Town expressing concerns about the school water supply and the water district. The School District did not, however, make comments at the legislative hearing nor appear at the issues conference. Since the monitoring program which is contemplated as part of the draft permit, as well as possible alternatives to the proposed water supply, may involve the wells at the schools, the School District may need to be brought into discussions of these subjects at some point. The School District did not, however, request party status and is not a party to the hearing.
Standards for identifying issues for adjudication
6 NYCRR Section 624.4(c) specifies the standards for adjudicable issues in a DEC permit hearing. An issue is adjudicable if it relates to a dispute between the DEC Staff and an applicant over a substantive term or condition of the draft permit (624.4(c)(1)(i)). When the Department Staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant (624.4(c)).
An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (624.4(c)(2)). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project, or the imposition of significant permit conditions in addition to those proposed in the draft permit (624.4(c)(3)).
In situations where the DEC is lead agency for review of an action under SEQRA or where, as here, there has been no coordinated review, the hearing may consider certain SEQRA issues, as specified in 6 NYCRR 624.4(c)(6)(i). If the DEC Staff has decided not to require preparation of an environmental impact statement ("EIS"), the ALJ may review whether this determination was irrational or otherwise affected by an error of law and if so, must remand the determination to the DEC Staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the Staff's determination.
In order to establish that adjudicable issues exist, "an intervenor must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. The offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner dated April 2, 1982). Subsequent decisions of the Commissioner have provided additional interpretation of this standard.
The following description of the project and surrounding area is included as background to the discussion which follows, regarding both the water supply issues and the SEQRA issues. As shown on Appendix A of the present rulings, the proposed water district is located on the east side of Baldwin Place Road. The present proposed district would include only the eastern portion of the Rolling Greens subdivision, which is at higher elevations than the western portion (see Appendix B). The district would also include the Baldwin Estates subdivision. An earlier proposed district had involved approximately 82, as opposed to 51, lots. The houses in Rolling Greens have individual wells and, as stated in the application and at the legislative hearing, numerous residents have had problems with low well yield and have needed to deepen their wells or take other measures to ensure a water supply.
The proposed Baldwin Estates subdivision is immediately southeast of Rolling Greens, and would involve 9 houses. The wells which are the subject of the water supply application are located in Baldwin Estates, on a water supply lot adjacent to Baldwin Place Road. Baldwin Estates has received preliminary approval from the Town Planning Board, which approval is conditioned upon it being part of the water district (Tr. 246). No houses currently exist in Baldwin Estates.
The third subdivision which was discussed in the arguments regarding the water supply application is the Baldwin Woods subdivision. This is located north of Rolling Greens, and is also east of Baldwin Place Road. This subdivision is also referred to in the record as the former proposed Santinelli subdivision or as the Ryder property. Wells had been installed and tested on this property in the 1980's, but the subdivision which was proposed at that time was never built. In early 2001, the Putnam County Department of Health ("PCDOH"), in response to a new subdivision proposal, stated that the PCDOH would require Baldwin Woods to be served by a public water supply and recommended that the project sponsor consider connecting to Water District No. 13. On September 25, 2001, the project sponsor made a request to the Town for inclusion in the district. The wells on the Baldwin Woods property were being tested again at the time of the issues conference. Baldwin Woods is at an earlier stage of the approval process than is Baldwin Estates, and is currently described as including 17 houses.
Stone Meadow Kennels, the Schraders place of business, is located on the east side of Baldwin Place Road immediately south of and adjacent to the water supply lot in Baldwin Estates. On the west side of Baldwin Place Road, across from Rolling Greens, is the Mahopac Central School District campus which includes three separate school buildings whose water is supplied by wells.
The area has metamorphic bedrock overlain with glacial till, mainly lodgement till. The groundwater used by water supply wells in the area is generally contained in fractures in the bedrock. Of the four wells which are proposed for use by Water District No. 13, the first well was installed by the developer of Baldwin Estates and the remaining three were installed by the Town.
Applicant's position with regard to the draft permit
A revised draft permit, dated January 23, 2002, was circulated by the DEC Staff. On February 7, 2002, the Applicant stated that the draft permit conditions were acceptable to the Applicant. The Applicant's response noted one change, to make the number of wells referred to in paragraph 9a of the draft permit consistent with the number elsewhere in the draft permit. There is no indication that this is in dispute, as opposed to simply being a correction. There are no issues raised by the Applicant in response to the revised draft permit.
Water quality certification and Corps of Engineers review
The only permit for which the Applicant has applied is a water supply permit. The Schraders and CPRG both asserted that a federal freshwater wetlands permit from the U.S. Army Corps of Engineers ("Corps of Engineers") and a related water quality certification from the DEC (as provided in 6 NYCRR 608.9) are required for the project. CPRG asserted that an applicant is required to simultaneously submit all the necessary applications for its project or demonstrate to the Department's satisfaction that there is good cause not to do so (6 NYCRR 621.3(a)(3)).
CPRG submitted a copy of a March 13, 2001 letter from Christopher S. Mallery of the Corps of Engineers to the Town Engineer John Karell, Jr., P.E., which stated that the placement of fill for the access road and test wells had involved placement of fill in the waters of the United States, including wetlands, and that such impacts were within the regulatory jurisdiction of the New York Office of the Corps of Engineers. The letter noted that the work done as of November 7, 2000 was within the scope of activities ordinarily considered as authorized under the nationwide general permit program, but the letter also recommended that any additional work on the project site be reviewed by the Corps of Engineers to insure that all appropriate authorizations are in place prior to initiation of further work.
The Applicant does not contest that the wells, which have already been installed, are in a wetland that is subject to the Town's wetland ordinance and to federal jurisdiction. The wetland in which the wells and the water supply lot are located is not, however, a state-regulated freshwater wetland (ECL Article 24) and no party disputes this. The wetland boundary for purposes of the Town's ordinance is shown on the map of the Baldwin Estates subdivision, which map was included with the application. It shows the location of the water supply lot, the location of the pump house which was described at the hearing as being a conceptual location (Tr. 28 - 29), and the boundary of the locally regulated wetland. Most of the water supply lot is wetland.
The subject of whether the Applicant would need to apply for an individual permit (as opposed to coverage under the nationwide permits) and for water quality certification from DEC was discussed at the issues conference. Additional work which may take place in the wetland in connection with the water supply project includes construction of a pump house and water mains, and possibly construction of a water storage tank. It is unclear at present whether water tanks may need to be constructed in the wetland; the Applicant intends to locate the additional structures within the area already disturbed (Tr. 29), but there is no map or other documentation showing that this is feasible. The project would include a 2,000 gallon hydropneumatic tank, which would be near the pumphouse, and a 30,000 storage tank, which could be located near the pumphouse or elsewhere although typically these are near a pumphouse. The actual proposed location of the pumphouse, the tanks, pipelines, and any other structures that may be required has not been identified (Tr. 22-23, 27-37; 1/20/01 Engineering Report, p. 4).
The contents of water supply applications as identified in 6 NYCRR 601.5, particularly 601.5(b)(1), require more specific information about the locations of these structures than is currently in the application. Where, as here, this information is also necessary in order to determine whether or not the Applicant will need to apply for water quality certification, the locations of these structures will need to be identified as part of the application. The DEC Staff and the Corps of Engineers would then be able to evaluate what, if any, additional approvals are required.
On June 1, 2001, the Applicant transmitted to the DEC Staff an Environmental Assessment Form ("EAF") dated April 7, 2001, which suggests that 0.3 acres of wetland will be filled (see acreages on page 2 of the EAF). The EAF, at page 5, identifies the Corps of Engineers under "approvals required," with May, 2001 as the submittal date. Given the date of the EAF, this appeared to be a date on which the Town anticipated submitting a request for approval to the Corps of Engineers. Mr. Karell clarified at the hearing, however, that the Town has not submitted any request for approval to the Corps of Engineers, although the Town may have sent to the Corps of Engineers a map showing the location of the wells (Tr. 318 - 319). Thus, the Corps of Engineers has not reviewed any structures and work which would be located in the wetland and it is unknown whether the Corps of Engineers would require an individual permit or the nationwide permits.
At the issues conference, I inquired about the effect, if any, of a recent action by Governor George E. Pataki to designate the East of Hudson portion of the New York City Watershed as a critical resource water ("CRW"). The project is within the East of Hudson portion of the New York City Watershed (Tr. 18). According to the press release issued by the Governor's office regarding this designation, the effect would be to make projects in that area subject to a comprehensive review process under the Army Corps' individual permit program, although many of these projects had previously been subject to review under the nationwide permit program. (In connection with the individual permits, water quality certification from DEC would probably be necessary.) At the time of the issues conference, I did not have a copy of the actual document which made this designation, and it was unclear whether the designation was in effect yet. Following the issues conference, I inquired about this and obtained a copy of the December 21, 2001 letter from Governor Pataki to the Corps of Engineers regarding this designation. I sent this letter to the persons on the service list on January 24, 2002, with a copy of the press release. Also enclosed was a copy of an electronic mail message from Michael Altieri, Esq., of the DEC central office, containing references to the Federal Register notices for the Corps of Engineers nationwide permit program and re-issuance of the permits(6) . The designation for the watershed is before the Corps of Engineers, for notice and comment.
I do not know when or if the CRW designation of this portion of the watershed will become effective, but the parties should be aware that this may happen in the relatively near future and could affect what permits are required for the project.
CPRG and the Schraders also questioned whether the application complies with 6 NYCRR 601.5(a), which requires that a water supply application include proof that all requirements of local law have been met by an applicant. They alleged that the Applicant in this case needed but had not obtained a Town of Carmel wetland permit. At the issues conference, the Applicant confirmed that there is a Town wetlands ordinance and provided a copy of it, and also provided a copy of the wetland permit issued to the Town of Carmel to "construct a 10 - 12 ft. wide access driveway of item 4 [gravel] to drill 2 or 3 wells for testing." The permit was granted on April 6, 2000 and expired on April 6, 2001 (Tr. 131, 203). Depending on what additional proposed work is identified as taking place in the wetland, an additional local freshwater wetland permit may be necessary, but as with the question of Corps of Engineers approval, the additional work has not yet been identified.
The proposed issue of whether water quality certification is required is actually an argument that additional information is needed from the Applicant. Such information can be required, even after the application is determined to be complete, if it is reasonably necessary to make any findings and determinations required by law (6 NYCRR 621.15(b)). Here, the information regarding the location of the structures associated with the water supply system is required as part of the application (6 NYCRR 601.5(b)(1)). It also relevant to the question of whether all the necessary DEC permit applications are before the Department (621.3(a)(3)) and, depending on what is proposed, it may affect determinations that need to be made under the standards for issuance of a water supply permit (particularly measures to protect the area around the wells from contamination) and under SEQRA.
Ruling: The Applicant will need to provide the proposed locations of the features identified in 6 NYCRR 601.5(b)(1).(7) This would include the pumphouse, tanks and pipelines, as currently proposed (recognizing that the proposal could be modified by agreement among the parties or as a result of the Commissioner's decision). The Applicant will also need to confirm whether the boundary of the locally regulated wetland is the same as the boundary of the federally-regulated wetland, or if that is already documented in the record, to provide a reference to where this is documented.
Water supply permit standards
The standards for issuance of a water supply permit are stated in the water supply statute at ECL 15-1503.2 and in the water supply regulations at 6 NYCRR 601.6. The Department must determine whether the proposed project is justified by the public necessity (6 NYCRR 601.6(b)(1)); whether the applicant properly considered other sources of water supply that are or may become available (601.6(b)(2)); whether the water supply will be adequate to meet the needs of the proposed service area (601.6(b)(4)); whether there will be proper protection and treatment of the water supply and watershed (601.6(b)(5)); and whether the proposed project is just and equitable to all affected municipalities and their inhabitants, and in particular with regard to their present and future needs for sources of water supply (601.6(b)(6)). These are the permit issuance determinations which were contested in both petitions for party status, although CPRG discussed what is essentially the "just and equitable" standard in the context of "competing needs." The discussion of the "public necessity" standard in the Schrader's petition actually focuses more on other sources of water supply and on whether the project is equitable to affected inhabitants, and contests the public need for the Baldwin Estates subdivision which is allegedly the catalyst for the present application.
There are additional determinations which the Department must make under 6 NYCRR 601.6(b) that are not in dispute here (601.6(b)(3) and (7)), plus a criterion regarding water conservation which was added to the water supply statute by a 1988 amendment (ECL 15-1503.2; L. 1988, c. 364) and which also is not in dispute here.
The Schraders argued that the Applicant has not shown that other more suitable well fields are not available, that there is no public necessity that justifies destruction of the Schrader's well, and that the proposed mitigation measures would be useless. These arguments also relate to other water supply standards and are discussed in other sections of these rulings, below. The Schraders also argued that no public need for the Baldwin Estates subdivision can be identified, and that this project is the catalyst for the Town's water supply application.
CPRG also stated that the need for the Baldwin Estates developer to gain approval for the development is purely a private need, and that persons and institutions outside the proposed district have competing needs for the water resource which must be weighed against the needs of the Rolling Greens residents. CPRG also argued that, based upon survey reported in the 1998 hydrogeological assessment prepared for the Town by Leggette, Brashears & Graham, Inc. ("1998 LBG Report"), and upon a separate survey mailed by CPRG in December 2001, only a small number of residences in Rolling Greens actually need water.
The DEC Staff stated that they believed there was a compelling need for additional water to be provided to those who do not have adequate water currently.
CPRG's argument that only a few residents of Rolling Greens need water is not persuasive. The response, positive or negative, to their survey was small and at least some residents refused to return the survey since they objected to CPRG's position. The much more extensive responses to the LBG survey, which are included in the 1998 LBG Report, do not support CPRG's interpretation of the responses. 49 residents plus the Mahopac Central School District responded to the LBG survey. Of these, the majority had problems with water quantity or quality. In some cases these problems had necessitated drilling new wells or installing storage tanks.
In addition to this information, the statements at the legislative hearing indicate numerous long-standing problems with the quantity of water from certain wells in Rolling Greens. Although these statements are not evidence in the hearing, it appears likely that some or all of the speakers who asserted that they had water problems could be called as witnesses by the Applicant if there were an issue regarding whether a water district in Rolling Greens is necessary at all. A "public necessity" issue this broad has not, however, been shown to be substantive and significant. The application contains documentation showing that there is a need for a public water supply by at least a substantial group of residents, and CPRG has not provided substantive information to refute this. Although the need may not be universal on the part of all 42 existing residences, it would appear unreasonable to require this in order to demonstrate "public necessity," particularly in an area where the behavior of wells varies from one well to another.
Baldwin Estates would benefit from establishment of the water district, and would add to the number of houses needing water. In addition, the wells which the Applicant proposes to use are on the Baldwin Estates property. The current proposal involves donation by Baldwin Estates to the district of a parcel of land on which the wells are located, plus easements through the proposed subdivision, and inclusion of Baldwin Estates in the water district (January 20, 2001 Engineering Report - District Formation). The subdivision and the water district are closely related and interdependent proposals, but there is also a separate, pre-existing, need for water in Rolling Greens which is not negated by a private need on the part of the developer.
The only portion of the proposed public necessity issue which has been shown to be substantive and significant is the question of whether there is a public need for the particular water supply proposed (Ton-da-Lay, Ltd. v. Diamond, 44 A.D.2d 430, 355 N.Y.S.2d 820 (3d Dept. 1974). In that case, the contention was whether necessity to the state as a whole must be shown, but in answering that question in the negative the Court also noted that "this term [public necessity] may well encompass more than the conflicting water supply interests among competing private, corporate or municipal bodies...." The effect of a water supply project on the use of water by an adjoining landowner is to be considered in determining the public necessity issue, but is not the deciding question with regard to this standard (Sperry Rand Corporation v. Water Resources Commission, 30 A.D.2d 276, 291 N.Y.S.2d 716 (3d Dept., 1968)).
The scope of the "public necessity" standard is also described in the Commissioner's Decision in the matter of Saratoga County Water Authority (April 4, 1996) in which the SCWA sought a water supply permit in order to acquire the wells and other facilities of Saratoga Water Services, Inc. ("SWS"). The Commissioner stated that: "[T]he permitting process under §15-1503 seeks to use the groundwater resources prudently for the good of the "public." Under the facts here [i.e., the SCWA case], the "public" is more than SWS or its existing service area. The "public" incorporates a larger area of the southern portion of Saratoga County" (Decision, p. 4).
Ruling: In the present case, the issue of public necessity includes whether the particular proposed supply, as opposed to various alternatives, is a prudent use of the water resource for the good of the residents of Rolling Greens and of the other persons or institutions outside the proposed district whose present or future use of the resource may be affected. The outcome of the other water supply issues identified for adjudication will have a bearing on whether the project is justified by the public necessity. As discussed further below, there are substantive and significant issues regarding these other water supply standards, and thus regarding public necessity. Whether this particular project is justified by the public necessity is an issue for adjudication in this hearing.
Other sources of water supply
The alternative sources considered by the Town, as identified in the "History of the Water Problems in Rolling Greens," a document included as part of the application and updated most recently on January 2, 2002, are: (1) Water District No. 10; (2) Water District No. 1; (3) the "Hideaway Property," which is west of Baldwin Place Road and south of the schools; (4) the Ryder Property (also known as the former Santinelli subdivision or Baldwin Woods); (5) Water District No. 5; and (6) Muscoot North Wetland, an area northeast of Rolling Greens. The Town evaluated these alternatives in 1998, and the analysis at that time led to a November 1, 1998 report recommending exploration of the wetland well (alternative 6). Wells were installed in this area but were found to be of inadequate productivity. The 1998 LBG Report also contained a hydrogeologic discussion of possible water sources near Baldwin Estates, Baldwin Woods and Rolling Greens.
CPRG asserted that there are several viable alternatives to the four wells which the Applicant currently proposes to use, and CPRG's petition for party status discussed three of these alternatives. CPRG noted that the Applicant had identified six alternatives in 1998 at the time when an approximately 82-house water district was under consideration, but that the cost estimates analyzed at that time were for a much larger district than the 51-house district currently proposed. (CPRG stated that the Town's analysis of the costs of alternatives was not in the record, but this document has now been provided by the Applicant.(8) ) CPRG also presented information from its engineering consultant regarding costs associated with constructing water mains, and argued that this information supports further consideration of connection to Water District No. 10. At the issues conference, CPRG's hydrology consultant stated that the two most feasible alternative sources, based on the data which she had reviewed, appeared to be the Baldwin Woods wells and the area west of Baldwin Place Road south of the schools (Tr. 89-90).
The Schraders stated that the Applicant had not undertaken an alternative source analysis although the Applicant's hydrology consultant had recommended this. The Schraders also argued that the Applicant's own information supports further consideration of alternatives.
The Town Engineer stated that the Applicant had reevaluated the alternatives when the proposal was revised to be a smaller district and that none of the alternatives were considered to be viable, due to costs as well as the limited capacity of Water District No. 10. He also confirmed, however, that the most recent documentation of a review of costs of alternatives was the document prepared in 1998 with regard to the larger district (Tr. 101-104, 131-132). The outcome of the wetland wells testing and the possible inclusion of Baldwin Woods in the district are mentioned in the January 2, 2002 update of the history of the water problems, but this does not contain a re-evaluation of alternatives in terms of costs and fully updated information. In addition, the intervenors contest the Applicant's conclusions regarding certain alternatives.
The 1998 LBG Report had stated that the most likely area for development of water supply wells near the three subdivisions, based on well records, topography and fracture traces analyses, was the area west of Baldwin Place Road and south of the schools (1998 Report, page 15). The Report also suggested the possibility of bringing the schools into a water district. This was discussed at the issues conference by R. G. Slayback, of Leggette, Brashears & Graham, the Applicant's hydrogeology consultant. Mr. Slayback stated that he had been told by Mr. Karell that the Town was not able to acquire these properties, but Mr. Slayback did not know the reason why (Tr. 108-109). The reasons are not in the record of the present hearing, and the Applicant has not shown that this is not a viable alternative.
At the issues conference, Mr. Slayback noted a July 17, 2001 letter he had written to Michael Merriman of DEC Region 3 in response to the comments on the application (Tr. 112). This letter states, among other things, LBG's position that "if the proposed Water District No. 13 is to go forward, plans to develop additional well-water sources on property other than the PW-1 through PW-4 property [the current well site] should be considered." The letter also noted the Putnam County Department of Health's recommendation to the developers of Baldwin Woods that they investigate the possibility of using the previously-drilled wells on their site as the supply for Baldwin Woods and/or as an additional source for Water District No. 13 (letter, page 3). Mr. Slayback stated that the Town has tried to solve a very difficult problem and that he did not think the problem would be fully solved until there are additional sources of water to the district (Tr. 112).
The Ryder property (which is now referred to as Baldwin Woods) was one of the alternatives considered in 1998. Two wells on that site had been tested in the late 1980's. The current owner of this property has recently requested that the property be added to Water District No. 13, although the Town has not modified its water supply application to include Baldwin Woods within the area to be supplied. The wells were being tested again at the time of the issues conference. The results of this test are not in the record, other than information from 30 hours into the test which was reported by Mr. Slayback at the legislative hearing, plus a handwritten note obtained by CPRG and included with its February 7, 2002 correspondence. The property owner, Putnam County National Bank, is the entity to whom the report of the test would be sent.
It should be noted that ECL 15-1503.2 identifies, as one of the standards for issuance of a water supply permit, the question of whether the applicant properly considered other sources of water supply that are or may become available (emphasis supplied). The fact that the proposed water district, as presently identified by the Applicant, does not include Baldwin Woods, does not rule the wells there out of consideration as an alternative, particularly where the landowner has requested to be added to the district and testing of the wells is underway.
In their February 8, 2002 response to the revised draft permit, the Schraders recommended that the permit should require that the Applicant secure additional sources of water in a defined window of time, and that additional water sources (such as wells in Baldwin Woods) be secured as a condition precedent for the issuance of a permit to operate the wellfield that is the subject of the present application.
Ruling: Whether the Applicant properly considered other sources of water supply that are or may become available is a substantive and significant issue for adjudication in this hearing.
Adequacy of supply
The New York State Department of Health has guidelines for evaluating sources of groundwater for water supply (Designing Community Water Systems, February 1975, issued by the NYS Department of Health). A section of these guidelines is attached as part of the January 20, 2001 Engineering Report - District Formation. The guidelines require that a minimum of two sources of groundwater must be provided, each capable of satisfying average daily demand. With regard to low yield wells in rock, two or more wells must be provided and assuming that the well with the highest yield is out of service, the remaining well(s) must have capacity to supply at least twice the average daily demand. Two sources is defined as meaning two wells, preferably in different aquifers, one well plus a reliable surface water source, or one well plus a dependable connection to another satisfactory public water supply system, or an equivalent combination thereof (emphasis supplied). This section of the guidelines also contains provisions regarding pumping tests.
The four wells proposed by the Applicant were tested in two separate pumping tests in November, 2000. Well PW-4 (the best well) was pumped in the first test and wells PW-1, PW-2 and PW-3 were pumped in the second test. Water levels at nearby private wells and at the Mahopac High School well were monitored before, during and after the test pumping. Water levels in some neighboring wells were drawn down during the test, with the largest reported drawdown being 72 feet at the Schrader's well, although none were reported as having gone dry. The three wells which were pumped simultaneously (i.e., with the best well out of service) produced 29.5 gpm, slightly more than twice the 14 gpm average daily demand of the proposed system. The Applicant's consultant concluded that PW-4 is adequate to meet the 14 gpm average daily demand and the other three wells meets the requirement of double the average daily demand with the best well out of service. Despite this, the consultant's report concluded that, "The results of the offsite monitoring indicate that long-term use of the four wells to supply proposed Carmel Water District 13 [the current district of 42 plus 9 houses] could result in adverse impacts to a small number of nearby wells. If such impacts occur, the Town of Carmel could offer water service to the impacted residences or could offer conventional remedies such as lowering a pump, deepening a well, or drilling a replacement well." The report also noted that the three best wells are closely interconnected and that there is little margin for adding residences to the system in the event of adverse impacts to neighboring wells (Town of Carmel Pumping Test Result and Analysis, December 2000).
Both CPRG and the Schraders presented critiques of the pump tests and of the adequacy of the supply, prepared by their respective hydrogeology consultants. Stephanie Davis, the consultant for CPRG, questioned the conclusions drawn by the Applicant from the pumping tests, and stated that under long-term pumping conditions, stabilized drawdowns are likely to be greater than the test wells indicate and that the source wells had not reached a stabilized drawdown condition as required by the guidelines (CPRG petition Exhibit A, p. 3-4; Tr. 66-77). Mr. Slayback responded that true stabilization of water levels in wells in bedrock aquifers such as those in the project area almost never occurs (Tr. 114). CPRG also recommended that the other two wells on the school campus be monitored during a pump test.
John A. Conrad, of Conrad Geoscience Corp., the consultant for the Schraders, noted that some drawdown data from the Schraders well were lost during the test, amounting to 28 hours of data, and that the maximum drawdown would have been more than the 72 feet that was reported. He stated that the tests indicate that the Schrader's well will be severely impacted over the long term and he questioned the feasibility of mitigation measures (Tr. 42-49). He also stated that the surface water level in the wetland was not monitored during the test, which could have determined whether there was any induced infiltration, nor was the water level observed at the spring house in the wetland, to which the Schraders have deeded rights. (The Schraders are not currently using the spring house as a water supply due to bacterial contamination (Tr. 49-50)). The kennel, the Schrader's residence and a studio apartment in the building use approximately four times as much water as a house on average, although the water demand of the kennel is seasonal and the overall demand would be greater than that of four houses during the summer. The record does not reflect whether or not the kennel has a water meter (Tr. 50-55).
There are also disputes regarding the effect, if any, of rainfall which fell during the pump tests, whether different results would have been obtained in a different season of the year, and the significance of the three best wells being closely interconnected and therefore in the same source.
The revised draft permit requires that upon providing service to any property that is already supplied by a separate well on that property, the well on said property must be disconnected from the potable water system and, if abandoned, be plugged, capped and sealed. Installation of additional private wells within the district would also be prohibited (see Special Conditions 21 and 22 for exact terms of these conditions.) Abandonment of existing wells would reduce the demand on the aquifer, but the Applicant's consultant predicted that this would probably not be a one-for-one offset in demand due to current low rates of water use by those with inadequate wells (July 17, 2001 letter, page 7-8).
The DEC Staff stated that a decision needed to be made, and that the information from the test results does not indicate that it is likely that nearby wells would go dry. They stated that the tests were a worst case situation that would not occur all the time, and that the wells had recovered well following the pumping test. In the event that nearby wells were adversely affected, the DEC Staff stated that there were feasible mitigation measures including allowing the supply wells to recharge while the system was using water from the storage tank, deepening the affected wells or lowering the pumps in these wells. The DEC Staff noted that the drawdown in some of the wells still left the water level above the pump, and that the wells were deeper than the depth at which the pumps were located (Tr. 117-126).
One possible mitigation measure discussed by the parties would be to connect neighboring properties to the water district if their water supply is diminished, but the number of additional residences which could be connected is limited by the capacity of the proposed supply and the kennel by itself would use more of this capacity than would a residence. The adequacy of the supply for the district itself is in dispute, and the adequacy of the supply to additionally serve other nearby users as a mitigation measure is even more in question.
The information presented by the parties, including information in the application itself, demonstrates that there are substantive and significant issues of fact concerning the adequacy of the supply. These facts also relate to the question of whether the project will be just and equitable to all affected municipalities and their inhabitants, to the question of whether and how impacts on neighboring wells can be mitigated, and to the consideration which needs to be given to other sources of supply.
Ruling: The adequacy of the supply to meet the needs of the proposed service area is an issue for adjudication in this hearing.
Protection of water supply
The original draft permit, dated January 8, 2002, contained a Special Condition 1 requiring that, "All land within 200 feet of each well shall be protected and controlled, to prevent pollution of the ground or groundwater, by direct ownership of the land, by acquisition of protective easements or other appropriate measures." This was described by the DEC Staff as being the standard condition used in water supply permits involving well water. Mr. Merriman noted, however, that in heavily developed areas this may not be possible, and that DEC Staff was willing to consider a different distance plus other protective measures such as casing the well down to bedrock (Tr. 60-61; see also discussion at Tr. 256-276). The application contains information documenting that the wells have casing which extends into the bedrock and is sealed with cement grout (Tr. 263; Pumping Test Results and Analysis, Volume II of II, Appendix II).
There was discussion at the issues conference regarding additional possible protective measures, such as mounds around the wells to divert surface water drainage. The DEC Staff prepared a revised draft permit condition which is special condition 2 of the January 23, 2002 revised draft permit. This condition would require that, "Prior to the commencement of construction of this water supply and distribution system, the permittee shall obtain ownership of the Baldwin Estates Well Lot to prevent pollution of the ground or groundwater. The permittee shall also make all reasonable efforts to prevent pollution of the ground or groundwater on all lands outside the Baldwin Estates Well Lot, but within 200 feet of each approved well, by direct ownership of the land, by the acquisition of protective easements or other appropriate measures." DEC Staff stated at the issues conference that reliance by the Applicant on the Putnam County Department of Health's sanitary regulations to protect the 200 foot radius area would not suffice, since this condition would be controlled and enforced by an entity other than the permittee (Tr. 257-260).
Both the original and the revised draft permits also include a condition (Special Condition 3 of the revised draft permit) which would require that, "This area shall be further protected from pollution by surface waters originating outside thereof by the construction of suitable diversion ditches or embankments and the development of the water sources shall be so carried out that there shall be no opportunity for pollution entering the water sources." In the present case, the Applicant would be conducting these activities in a relatively small area, in which the location of various structures such as the pumphouse and possibly a storage tank have not been identified, and in which the Applicant will be attempting to avoid further regulated activities in the federal wetland. In view of the practical difficulties in this situation, the Applicant should be required to clearly identify how it will comply with this permit condition, as part of the additional information required earlier in these rulings (p. 14).
In response to the revised draft permit, CPRG stated that the Applicant should be required to take a "hard look" at the stormwater pollution prevention plans that should be required in reviewing Baldwin Estates, and that the permit should specify measures for non-ownership protection of the area outside the well lot but within 200 feet of the wells, such as prohibitions against hazardous materials storage and placement of un-tested fill.
The area within 200 feet of the wells includes a section of Baldwin Place Road, part of a property across the road from the well field, the end of the proposed detention pond for Baldwin Estates, parts of the back yards of three lots in Baldwin Estates, the Schrader's well and a corner of the kennel building itself although not the septic system of the kennel. Although the septic fields for the three Baldwin Estate lots are currently outside the 200 foot distance, two of them are immediately outside of this distance. The DEC Staff stated at the hearing that the detention pond would be in the same category as surface water pollution, and that the wells could be protected by diverting contaminated surface water away from the wells (Tr. 273-274). The subdivision map of Baldwin Estates which was included with the application contains a symbol which appears to be the outfall from the detention pond, slightly less than 100 feet from well PW-4 and at about the same elevation.
Specific information regarding measures to protect the water supply can be necessary in order to show that this standard has been met by an applicant (see, Ton-Da-Lay, Ltd. v. Diamond, 355 N.Y.S.2d 820, at 824; also 6 NYCRR 601.5(b) and (f)(6)). A substantive and significant issue exists regarding the measures to be taken to protect the water supply of Water District No. 13.
Ruling: Protection of the water supply, and the specific measures to be taken in preventing pollution of the ground or groundwater within 200 feet of each well, is an issue for adjudication. In addition, identifying the current existing or proposed location of features relevant to this issue presently requires comparing three separate maps in the application(9) . The Applicant will need to provide a map showing these features, and the proposed protective measures such as drainage controls, on the same map. Once this information is available, the parties should confer regarding the proposed protection measures, since based upon the discussion at the issues conference it appears possible that this issue may be able to be settled by the parties.
"Just and equitable" standard
In deciding whether to grant a water supply permit, one of the determinations which the Department must make is whether the proposed project "is just and equitable to all affected municipalities and their inhabitants and in particular with regard to their present and future needs for sources of water supply" (ECL 15-1503.2, 6 NYCRR 601.6(b)(6)). In the present case, this question overlaps with the question of adequacy of the supply, discussed above. There is also, however, a question of whether the project makes adequate provisions for the water supply needs of water users near but outside the proposed district. These users include both residents who have private wells and the school district which has wells at its school buildings. CPRG and the Schraders allege that the use of water by Water District No. 13 will compete with the existing uses and jeopardizes the existing uses.
There was a fairly extensive discussion at the issues conference regarding a permit condition which would provide for monitoring and mitigation of adverse effects on private wells which may be caused by the permittee's water use. Following the issues conference, the DEC Staff revised Special Condition 9 of the draft permit to provide additional detail regarding this. The revised permit condition would provide for monitoring of the High School well and three private wells near the district, and steps to be taken if the water level in any of these wells drops to within 20 feet of the pump setting in the well. The condition also would require the permittee to maintain a complaint log and to continue the monitoring program for at least five years. If the DEC were to determine that the district's water use was causing a significant diminution or loss of water use for another user, the permittee would be required to provide a supply of water to the user. (Please see the revised draft permit for the full text of Special Condition No. 9.)
In response to the revised permit condition, CPRG's hydrogeology consultant Stephanie Davis stated that the revised draft was a significant improvement over the previous document, but that there are still a number of areas where improvements can be made. Ms. Davis provided some specific suggestions regarding changes in the wording, particularly with regard to the monitoring program. She recommended that neighboring water supplies be replaced if the water district's wells cause decreased water quality, not only decreased quantity, and questioned why the revised draft permit omitted a condition regarding low-flow water fixtures. Counsel for CPRG stated that the permit condition should require that the monitoring be conducted by a mutually-acceptable third party, not by the permittee or its agent, and that "significant diminution" as used in condition 9d should be defined.
The Schraders argued that neighboring users whose wells are diminished by the district's water use should not be exposed to indefinite costs for connection to the district. They also argued that the pump tests demonstrated that the kennel well is connected to the proposed water supply wells and that it should not be left to DEC's discretion to determine whether a failure of the kennel well was caused by the district. They stated that the kennel's water use is governed by sanitary standards and that if a permit is issued, the Schraders should be permitted to use such amounts of water as necessary to continue their business.
Both CPRG and the Schraders argued that the revised draft permit should include provisions for immediate restoration of diminished water supplies, rather than allowing for extensive drawdown to occur in wells near the district before starting to figure out how to provide alternate water supplies. The also stated that the district's wells may not be adequate to serve as a source of substitute water.
Substantive and significant issues remain regarding the measures which would need to be taken if nearby water supplies are affected, but the issues have been significantly narrowed and partly resolved by the DEC Staff's revision of Special Condition 9. At the issues conference, I suggested that the parties exchange proposals regarding a revised permit condition and attempt to resolve this through correspondence or possibly through a technical conference. Other than the draft permit and the responses to it which have been sent to me, I do not know if there have been additional exchanges among the parties about Ms. Davis's suggestions or other changes. I would encourage the parties to continue this process. Although there still may need to be an adjudicatory hearing regarding whether the four wells would be adequate to supply affected properties outside the district, and regarding other sources of water supply, it may be possible to resolve the remaining disputes about the monitoring program and the process for deciding under what conditions the district would need to provide water to affected water users outside of the district.
Ruling: There is a substantive and significant issue regarding whether the proposed project is just and equitable to all affected municipalities and their inhabitants, and in particular with regard to their present and future needs for sources of water supply. This issue overlaps with the issues of the adequacy of the supply and consideration of other sources of supply, and also includes the measures which the permittee would need to take in the event that its use of water adversely affects water supplies outside the district.
On June 4, 2001, the DEC Staff issued a negative declaration regarding the water supply permit application, finding that the proposed action will not have a significant effect on the environment and that a Draft Environmental Impact Statement will not be prepared. The negative declaration identified the proposed action(10) as the application for a water supply permit to take a supply of potable water from four new wells to service 42 existing homes and the proposed 9-lot Baldwin Estates residential subdivision homes, both of which are located in the water district. The negative declaration stated that the Baldwin Estates subdivision was the subject of a separate environmental review and separate negative declaration dated April 12, 2000, and that all potential impacts related to the 9-lot subdivision and the use of water from the wells to serve the subdivision had already been reviewed under SEQRA. The June 4, 2001 DEC negative declaration went on to state that, "The action being reviewed under this Negative Declaration is limited to the taking of additional water from those same wells to serve the existing 42 homes adjacent to this proposed subdivision, and the water main construction necessary to provide that service."
The April 12, 2000 negative declaration concerning Baldwin Estates was issued by the Carmel Town Planning Board. It was not challenged under Article 78 of the Civil Practice Law and Rules and is a final document (Tr. 220-221). The present DEC administrative hearing is not the forum in which to challenge the Town Planning Board's negative declaration. The contents of this negative declaration can, however, be considered in the present rulings to the extent that DEC relied on them in making its own SEQRA determination on the current water supply application. The procedures followed by the Town are relevant to the present hearing to the extent that they affect what DEC needs to do in its review of the water supply application under SEQRA. The Town has not yet made a determination of significance under SEQRA with regard to establishing Water District No. 13 (Tr. 319-320).
The DEC Staff was under the impression that the Town Planning Board had conducted a coordinated review(11) of the Baldwin Estates project, based on the Planning Board being identified as the lead agency in its negative declaration, and that for DEC to conduct a further review related to use of water by Baldwin Estates would be inappropriate (Tr. 231-232). At the issues conference, however, the Applicant confirmed that although the Planning Board's negative declaration had used the term lead agency, no coordinated review was performed (Tr. 245).
6 NYCRR 624.4(c)(6) governs the extent to which "SEQRA issues" can be considered in a DEC permit hearing, and this depends in part upon whether DEC is the lead agency and whether there has been coordinated review. In the present situation, 6 NYCRR 624.4(c)(6)(i)(a) applies, and the ALJ may review a determination by the DEC Staff to not require the preparation of an EIS, as further provided in that clause.
The intervenors argued that the DEC relied upon a defective negative declaration prepared by the Town Planning Board, and cited a number of alleged defects including that the Planning Board's negative declaration was issued prior to the pumping tests of the wells and did not take into account the need to place fill in the wetland. They argued that the two agencies had each deferred to the other regarding aspects of their respective SEQRA determinations. They also argued that DEC should be lead agency regarding the water supply application and should conduct a coordinated review.
CPRG argued that there will be significant cumulative impacts resulting from Baldwin Estates and Baldwin Woods, and argued that these are contingent upon DEC's approval of the water supply permit. CPRG argued that DEC has an independent obligation to consider the cumulative impact of these actions.
The DEC Staff argued that Baldwin Woods is owned by a separate owner who has no application before DEC at the present time. They described the Baldwin Woods project as being speculative and stated that it may never go forward, and stated that meeting the needs of the current residents should not be delayed (Tr. 206-207, 222-223). The Applicant stated that the Putnam County Department of Health had required Baldwin Woods to be served by a public water supply but allowed for this to be either Water District No. 13 or the subdivision's own public water supply (Tr. 210; February 2, 2001 letter from Bruce R. Foley to Gary Tretsch).
The documents and arguments which have now been presented demonstrate that the June 4, 2001 SEQRA determination by DEC will need to be remanded for a redetermination since it is affected by an error of law (6 NYCRR 624.4(c)(6)(i)(a)). Although the action before the DEC is the application for a water supply permit to take water for 42 existing homes and the 9 proposed homes in Baldwin Estates, the negative declaration specifically states that the action reviewed under the negative declaration was limited to the taking of additional water from the four wells to serve the 42 existing homes. The reasoning set forth in the negative declaration is also limited to consideration of supplying water to the existing 42 homes (see particularly paragraphs 1,4, 5, 6 and 7 of the negative declaration). Since there was no coordinated review of the Baldwin Estates project, however, DEC was not bound by the Town Planning Board's SEQRA determination. DEC also could not rely upon the Planning Board's SEQRA determination and decline to do its own review of the entire water district including Baldwin Estates (Golten Marine Co., Inc. v. New York State Department of Environmental Conservation, 193 A.D.2d 742, 598 N.Y.S.2d 59 (2d Dept., 1993)).
In addition, the DEC's negative declaration relied upon the Planning Board's negative declaration with regard to impacts related to the use of water to serve the Baldwin Estates subdivision. The Planning Board's negative declaration, in turn, had relied upon the approvals to be provided by the Putnam County Health Department and "all other regulatory agencies" (presumably including DEC) in concluding that the project will not create any negative impacts on water resources (paragraph 15 of negative declaration). The Planning Board's negative declaration was also made prior to the pumping tests of the wells. Thus, important potential impacts and information have been missed in the agencies' environmental reviews.
The Planning Board's negative declaration also stated that no activities would occur in the regulated wetland area and that the wetland will remain undisturbed (paragraphs 8 and 10). It is undisputed, however, that construction of the wells and the access driveway took place in the wetland in the Baldwin Estates water supply lot in connection with both the Baldwin Estates project and the water supply application. As discussed above, there may be additional construction in the remaining wetland although the extent of this is not currently known. The DEC negative declaration only looked at wetland-related impacts (such as effects on surface water quality, drainage, habitat, etc.) with regard to the taking of water for the 42 existing houses and the water main construction necessary to provide that service.
The water supply permit application and the development of Baldwin Estates are closely
intertwined, both with regard to the work which will be done and the approval processes that are necessary. The water district would include both the 42 existing houses and the 9 houses of Baldwin Estates. The water supply wells which would serve both areas are located within Baldwin Estates. Final approval of Baldwin Estates by the Putnam County Department of Health is awaiting approval of the water supply application by DEC (Tr. 224). The control of stormwater coming from Baldwin Estates, which is also under the review of a third agency (New York City Department of Environmental Protection) may affect how the area around the wells is to be protected from contamination.
The interaction of the water supply project with Baldwin Woods is somewhat less direct but it still sufficiently related that its impacts need to be considered in making a determination of significance regarding the water supply application. Although Baldwin Woods could develop its own public water supply, the developer's engineer wrote to the Town on September 25, 2001 to formally request that Baldwin Woods be included in Water District No. 13. An August 28, 2001 letter from the Town Engineer to the owner of the Baldwin Woods property states that the subdivision's plans indicate that the subdivision proposes to connect to the district and to use the subdivision's existing wells to supplement the district's water. The fact that the Applicant has not modified the application to include Baldwin Woods does not mean that the cumulative impacts of the project can be omitted from the review of the water supply application under SEQRA(12) . Although the Baldwin Woods project could be abandoned at some point by the project sponsor, this is true of many projects at any stage of development up to their completion. In addition, the Baldwin Woods wells are one of the other sources of water supply that need to be considered under the water supply statute.
Under the DEC hearing procedures, an ALJ has authority to review a determination by DEC Staff to not require the preparation of an environmental impact statement. "Where the ALJ finds that the determination was irrational or otherwise affected by an error of law, the determination must be remanded to staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the staff's determination." (6 NYCRR 624.4(c)(6)(i)(a)). The ALJ does not have the authority to require an EIS (In the Matter of American Marine Rail, LLC, Ruling dated August 25, 2000, page 82). In the American Marine Rail hearing, the Administrative Law Judge did determine that the impacts of the project were such that there should be an EIS (Ruling, page 16) and identified areas of the application that would need to be supplemented in the event that the redetermination resulted in a new negative declaration (Ruling, pp. 82-84), but did not make the actual SEQRA determination of significance.
In the present case, the information about the project as presently proposed which is available in the hearing record suggests that the water supply project may have a significant adverse environmental impact. The application itself, particularly the December 2000 Pumping Test Results and Analysis (at p. 17) states that the offsite monitoring indicated that long-term use of the four wells to supply the district could result in adverse impacts to a small number of nearby wells. The DEC Staff will need to determine whether this potential impact is a significant adverse environmental impact, as well as identifying and evaluating other potential impacts. An EIS is necessary if an action may (not necessarily will) have a significant effect on the environment (Inland Vale Farm Company v. Stergianopoulos, 65 N.Y.2d 718, 492 N.Y.S.2d 7 (1985)). In view of the various review processes which would need to be completed by several agencies regarding the water supply project and the two subdivisions, and the degree to which one agency's decisions may affect those of another agency, coordinated review may be appropriate for the water supply application.
Although additional review under SEQRA, including the redetermination of significance and possibly an EIS, will require at least some time, it would be preferable to have a legally sound hearing process as opposed to a rapid process whose outcome may be overturned. (There is also the concern for not arriving at a decision that solves one set of environmental problems but creates new ones). As stated in the Commissioner's Interim Decision in the matter of Peckham Materials, "...an invalid negative declaration cannot be cured during the subsequent permit process and its invalidity renders the entire proceeding a nullity (see, Schenectady Chemicals v. Flacke, 83 AD 2d 460 [3d Dept. 1982]). In the interest of administrative expedience, therefore, an early resolution of this issue is in the best interest of all parties." (November 1, 1985 Interim Decision, p. 3).
Ruling: The SEQRA determination regarding the water supply application is remanded to the DEC Staff for a redetermination. The action whose environmental significance will need to be determined is the overall project which would be authorized by the water supply permit, including the work to be conducted on the Baldwin Estates site and the supply of water to Baldwin Estates. In addition, the redetermination will need to consider the possible addition of Baldwin Woods to the proposal and consider the cumulative impacts of Baldwin Woods with those of the 51 house water district.
Pursuant to 6 NYCRR Subdivisions 624.6(e) and (g), and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.
Any appeals must be received at the office of the Commissioner no later than 4:00 P.M. on April 1, 2002, at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010. Any replies must be received no later than 4:00 P.M. on April 15, 2002 at the same address.
Any requests for an adjustment to the appeal schedule must be made to Chief Administrative Law Judge Daniel E. Louis, at the Office of Hearings and Mediation Services address.
The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner, with two copies being sent to my address. Additionally, please file these materials electronically at the following e-mail address: email@example.com.
For the New York State Department
of Environmental Conservation
By: Susan J. DuBois
Administrative Law Judge
Dated: Albany, New York
March 15, 2002
TO: All persons on interim service list
1. See 6 NYCRR 624.5
2. The Town of Brookhaven, Suffolk County, was the town whose inquiry was discussed in Opinion 82-6.
3. Town Law Section 209-b also contains a provision regarding payment for preparation of these documents by a town, possibly with future reimbursement by the district if one is established.
4. This is not changed by the fact that 2 of the 23 members chose to identify themselves as anonymous, at an address specified only as Rolling Greens, particularly in view of the intense and very personalized statements both for and against the application at the legislative hearing.
5. The individuals to whom full party status is granted are: Mr. and Mrs. Anthony Puccio, Ralph and Val Bortugno, Bruce and Judy Schwartz, Pete and Jane Dandreano, Tom and Jennifer Tokarski, Tom DeChiaro, Mr. and Mrs. Joseph Leist, Frances and Dini LoBue, Robert and Penny Mongelli, John and Pat O'Reilly, Matthew Bennett and Lisa Rucker.
6. 64 FR 39252, 39283-39284, 39346-39347; 65 FR 12817, 12872-12874; 67 FR 2019.
7. Although the petitions and the discussion at the issues conference focused on structures and construction activities in the wetland and near the wells, the Applicant and the DEC Staff should review whether any additional information needs to be provided regarding the items in 6 NYCRR 601.5 generally.
8. Preliminary Report and Cost Evaluation, Carmel Water District #13, Rolling Greens, last revised on September 28, 1998. This was attached with the Town's January 24, 2002 correspondence.
9. The February 11, 2000 Baldwin Estates subdivision map; the August 2, 2000 drawing regarding the proposed water district which is labeled Sheet 2 of 2; and the December 6, 2000 Pumping and Observation Well Location Map which is Plate 1 of The Pumping Test Results and Analysis, volume I of II.
10. "Actions" are defined for purposes of SEQRA as including "projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure, that: (i) are directly undertaken by an agency; or (ii) involve funding by an agency; or (iii) require one or more new or modified approvals from an agency or agencies [and other planning or rulemaking activities listed in the definition]." (6 NYCRR 617.2(b)).
11. 6 NYCRR 617.6(b)(3) describes the process of coordinated review, which involves providing notification about a project to other involved agencies and identifying a lead agency which will have the primary role in the review of the project under SEQRA.
12. In October, 2001, the Town Board anticipated making a final decision on the request for inclusion in the water district upon receipt of the Baldwin Woods pump test reports and water quality analysis (October 11, 2001 letter from John Karell, Jr. to Wayne Ryder); the results of the test program and the Town Board's decision, if any, are not in the record of this hearing.