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New York, City of (SPDES) - Preliminary Ruling, March 24, 1994

Preliminary Ruling, March 24, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION for a Water Supply Permit authorizing acquisition of additional lands within selected watersheds for watershed/water supply protection purposes pursuant to the Environmental Conservation Law ("ECL") Article 15, Title 15 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 601

PRELIMINARY RULINGS OF THE ADMINISTRATIVE LAW JUDGE

DEC Project No. 3-9903-00023/00001-9

Background and Chronology

The New York City Department of Environmental Protection, 59-17 Junction Boulevard, Corona, New York 11368-5107 (the "City", "DEP" or "Applicant"), has applied to the New York State Department of Environmental Conservation ("Department" or "DEC") for a Water Supply Permit which would authorize the City to acquire additional lands within its Ashokan, Rondout, Neversink and West Branch reservoir basins for the purpose of watershed/water supply protection. The acquisitions proposed in this application represent one component of the City's comprehensive watershed protection plan. The objectives of the proposal are to preserve and further improve the quality of the City's water and to ensure that water quality continues to meet all federal and state standards.

In 1989, the United States Environmental Protection Agency ("EPA") amended Title 40 of the Code of Federal Regulations ("CFR") to include what is commonly referred to as the Surface Water Treatment Rule ("SWTR"). 40 CFR 141.70 et seq establishes the requirements for the National Primary Drinking Water Regulations. A stated purpose of the SWTR is to reduce contamination of public drinking water supplies by microbial pathogens, including Giardia lamblia cysts and viruses.

In public water systems, such as New York City's, which use surface water sources, the SWTR requires either filtration of the source water or a demonstration that the system meets a set of filtration avoidance criteria, in order for the system to be in compliance with the regulations. If, at any time after December 29, 1991, a system fails to meet the avoidance criteria, it may be required to provide filtration within 18 months of such failure. Thus, the impetus behind the City's proposal is compliance with the SWTR and avoidance of costly filtration for its Delaware and Catskill reservoir systems which supply 90% of the City's potable water. The remaining 10% of the supply comes from the Croton system, which the City intends to begin filtering prior to the end of the decade.

Among the requirements which the City must meet in order to avoid filtering its Delaware and Catskill waters, 40 CFR 141.71(b)(2) requires the public water system to maintain a watershed control program. The adequacy of the program is based upon, among other factors, "the extent to which the water system has maximized land ownership and/or controlled land use within the watershed." Furthermore, "The public water system must demonstrate through ownership and/or written agreements with landowners within the watershed that it can control all human activities which may have an adverse impact on the microbiological quality of the source water."

EPA, in January 1993 issued a Determination On Filtration of New York City's Catskill and Delaware Water Supplies, which identified the Agency's main area of concern regarding the City's water supply, i.e. - the degree of the City's control over activities in the watershed which may have an adverse impact on the microbiological quality of the source water. In this Determination, EPA found that the City had not conclusively demonstrated that the Catskill and Delaware systems would meet the above watershed control program criteria which would allow the City to avoid filtration for these two reservoir systems.

EPA also found, "it is appropriate that NYCDEP, for a specified period of time and under strict performance criteria, continue to develop and implement an effective, long-term watershed protection program." At the same time, EPA required the City to perform initial studies on filtration of the Catskill and Delaware systems, leading up to completion of the conceptual design of a filtration plant(s). Additionally, EPA established a series of conditions for the City to meet to demonstrate its commitment to the development of a comprehensive watershed control program. EPA set a deadline of December 31, 1993 for issuance of a further determination on the City's progress towards complying with the filtration avoidance criteria.

The City had previously committed to spend $47 million in 1992 and 1993 for land acquisition ($44 million for purchases and $3 million for operating expenses) in its 1991 filtration avoidance plan. The City had not carried out this proposal in 1992, but EPA seized upon this commitment and made closure on all purchases by June 30, 1994 a condition for complying with the January 1993 filtration avoidance determination.

The City submitted a long-term plan for watershed protection and filtration avoidance to EPA at the end of June 1993. The plan was modified in September 1993 when the City sent EPA its 1993 Long-Term Watershed Protection and Filtration Avoidance Program. As part of this latter submission to EPA, the City termed its proposed $44 million for land purchases a short-term land acquisition program and requested that the gauge for compliance should be measured in acres rather than dollars. The City suggested that $44 million roughly equated to 10,000 acres. Additionally, the City requested a year's extension, until June 30, 1995, in which to complete its acquisition of the 10,000 acres. In the meantime, on August 20, 1993, the City had submitted the instant application to DEC for approval of its "short-term land acquisition program" to expend approximately $44 million for approximately 10,000 acres pursuant to the water supply law and regulations.

Subsequently, on December 30, 1993, EPA issued a second determination, Surface Water Treatment Rule Determination - New York City's Catskill and Delaware Water Supplies, which extended the time period during which the City would not have to provide filtration of its Catskill and Delaware water supplies, conditioned on the City's compliance with a variety of conditions set forth in the document. Among the conditions related to land acquisition for the City's watershed control program, EPA requires the City to submit by the end of March 1994 a revised Phase I Land Acquisition Plan to include "land acquisitions thru 1999 in an amount not less than $201 million dollars (sic) which shall result in acquisition or other use restrictions on a minimum of 80,000 acreas (sic)."

Legislative Hearings and Issues Conference

Legislative public statement hearings to receive comments on the City's short-term land acquisition proposal were initially conducted in October 1993. Notice of the public hearings was published in the Department's Environmental Notice Bulletin on September 22, 1993 and in the Kingston Freeman, the Poughkeepsie Journal, the Middletown Times-Herald Record, and the White Plains Reporter Dispatch on either September 27 or 28, 1993. The hearings were held in the Mahopac Falls Elementary School, Myrtle Avenue, Mahopac Falls, New York on October 19, 1993; the Tri-Valley Central School, Route 55, Grahamsville, New York on October 20, 1993; and the Ulster County Office Building, 244 Fair Street, Kingston, New York on October 21, 1993.

Because the City had not yet completed the State Environmental Quality Review ("SEQR") of its proposed action, and consequently, because the Department Staff did not have a draft permit available for review and comment at the initial hearings, the issues conference initially scheduled for October 22, 1993 was cancelled, and another round of hearings was scheduled.

The City, as lead agency, issued its SEQR determination, i.e. - Declaration of No Significant Environmental Impact for the New York City Watershed Land Acquisition Program (Short Term), on December 20, 1993, and the Department Staff transmitted its Draft Water Supply Permit, with multiple special conditions, to me on December 28, 1993.

The second round of legislative public statement hearings was noticed in the Department's Environmental Notice Bulletin on January 19, 1994 and in the Kingston Freeman, the Poughkeepsie Journal, the Middletown Times-Herald Record, and the White Plains Reporter Dispatch on either January 17 or 18, 1994. Although noticed to be held on February 8, 1994, the hearing in Grahamsville was postponed when a severe winter storm caused closure of the school on that date. The Kingston and Mahopac Falls hearings were held as scheduled on February 9, 1994 and February 10, 1994, respectively. The Grahamsville hearing was conducted on the rescheduled date of February 16, 1994. The February 1994 hearings were held in the same locations as the October 1993 round of hearings.

The pre-adjudicatory hearing issues conference to consider requests for party status and proposed issues for adjudication was held in the Ulster County Office Building in Kingston, New York on February 17, 1994. The following agencies, governmental bodies, elected representatives, organized groups and individuals appeared at and participated in the issues conference.

Representing the New York City Department of Environmental Protection in this matter is the New York City Law Department, 100 Church Street, New York, New York 10007 (Peter H. Lehner, Esq., Deputy Chief, Environmental Law Division, of Counsel).

The Department Staff is represented by Glen Bruening, Esq., Associate Counsel in the Department's Division of Legal Affairs, 50 Wolf Road, Albany, New York 12233-1500.

The New York State Department of Health ("DOH") is represented by James R. Covey, P.E., Associate Sanitary Engineer, Bureau of Public Water Supply Protection, 1215 Western Avenue, Albany, New York 12203-3313.

Honorable Charles D. Cook, New York State Senator, 40th District, ("Senator Cook") is represented by his counsel, John T. Hamilton, Jr. Esq., 512 Legislative Office Building, Albany, New York 12247.

The Putnam County Legislature ("Putnam County") is represented by the law firm of Rapport, Meyers, Griffen and Whitbeck, P.C., 110 Main Street, Poughkeepsie, New York 12601-2427 (George A. Rodenhausen, Esq., of Counsel).

The Coalition of Watershed Towns ("Coalition") is represented by the law firm of Whiteman, Osterman and Hanna, One Commerce Plaza, Albany, New York 12260 (Daniel A. Ruzow, Esq., of Counsel).

The Hudson Riverkeeper Fund, Inc. ("Riverkeeper") is represented by Pace Environmental Litigation Clinic, Inc., Pace University School of Law, 78 North Broadway, White Plains, New York 10603 (Lori Caramanian, Legal Intern).

J.G. Carmel, Inc. ("Carmel") is represented by Charles H. Place, Esq., A.I.A., Garrison Landing, R. 2, Box 202, Garrison, New York 10524.

In accordance with the regulatory provisions for conducting permit hearings, the Applicant and the assigned Department Staff are automatically parties to the proceeding. In every other instance, the above individual or entity demonstrated sufficient interest and intent to participate in an adjudicatory hearing to qualify for the granting of party status. Therefore, all the above are granted full party status, although as noted at the issues conference, those parties with similar interests are directed to consolidate their efforts to avoid duplication and repetition at any subsequent adjudicatory hearings.

Issues for Consideration in this Ruling

At the conclusion of the issues conference, the participants, particularly the intervenors, sought initial clarification on the issue of "what the project is or should be," prior to submission of briefs on the issues to be adjudicated. The scope of the project to be considered in the instant proceeding was brought into question due to the City's proposed phasing of its land acquisition program.

As noted above, the City ultimately intends to expend some $201 million to acquire approximately 80,000 acres for watershed protection purposes through the end of the decade. However, the City's current proposal for a short-term land acquisition program of $44 million/10,000 acres to be concluded by mid-1995 has led several of the intervenors to allege the City has illegally bifurcated or segmented the short-term program from a comprehensive overall evaluation of the entire $201 million/80,000 acre land acquisition proposal which has been submitted to EPA as part of the City's long-term watershed protection and filtration avoidance program. Hence, the question of whether consideration of the instant proposal is premature and whether it is more appropriate to consider the short-term acquisition program together with the long-term program?

At the issues conference and in my February 18, 1994 follow-up memorandum, I allowed the parties to submit written briefs on the issue of the "what the project is or should be," along with the applicable statutory, regulatory and/or case law citations to support their respective positions. The deadline for mailing these submissions was set as February 25, 1994; briefs were received from all but one (the Riverkeeper) of the parties by March 1, 1994. The stenographic transcript of the issues conference was received in the Office of Hearings on March 17, 1994.

Additionally, this Ruling will consider whether the City's February 9, 1994 application to acquire three parcels of land in the Town of Kent, Putnam County, should be treated as a supplement to the current application for the City's short-term land acquisition program or whether it should be processed by the Department Staff as a separate application.

The Principal Issue - Are the City's Short-Term and Long-Term Land Acquisition Programs Illegally Segmented?

- Positions of the Parties

The City asserts its short-term land acquisition is appropriately defined at the present time and is distinct from the long-term acquisition efforts for which it will subsequently seek approval. The City is required by EPA to expend approximately $44 million to acquire approximately 10,000 acres of land, conservation easements or other written agreements with landowners in its most critical drainage basins. EPA is also requiring the City to develop a separate longer range acquisition plan by the end of March 1994, as well as a future "Phase II Land Acquisition Plan" by June 30, 1996.

The City, with the concurrence of DEC, is the lead agency for the SEQR assessment of the instant project. The City asserts that where DEC is not the lead agency for SEQR purposes, and where the lead agency has issued a negative declaration, then DEC does not have the jurisdiction to review compliance with SEQR in an administrative hearing.

Secondly, as the Applicant, the City, under the Uniform Procedures Act ("UPA") requirements, ECL Article 70 and 6 NYCRR Part 621, is the only entity which can define the scope of the project for which it is applying. DEC only has the authority to determine whether the project applied for is complete and whether it satisfies the substantive standards for permit issuance. Where multiple permits are needed for a project, the DEC can require that all permits be applied for at the same time. However, such is not the case with the City's instant proposal, and where its land acquisition efforts will be phased over a long period of time. The City maintains that since its short-term proposal is the only one of its land acquisition plans to be well enough defined to apply for a permit, it is not only unreasonable, but also totally unfeasible to require review of the longer term proposals at this time.

Lastly, the City maintains the statutory criteria for water supply permit issuance in ECL 15-1503(2) do not provide any authority for DEC to expand the scope of a project. Rather, any given project, i.e. - the City's instant short-term land acquisition proposal, must be measured against the permit issuance criteria on its own merits. Further, the City contends that a redefinition of the instant project to include the additional 70,000 acres to be proposed in a future application would frustrate the entire land acquisition program, contrary to the mandates of EPA.

In summary, the City asserts there is no legal basis to expand the scope of its instant application. Any other action would detrimentally affect the City's efforts to protect its watershed.

The Department Staff maintains the City's current proposal is appropriate in its present form and that the special conditions proposed in the Staff's draft water supply permit are sufficient to ensure the project complies with the water supply permit issuance criteria in ECL 15-1503(2).

The Department Staff maintains the scope of the City's project is not an appropriate inquiry for the ALJ because it is part of the completeness determination which is the responsibility of the Staff itself. The procedural aspects related to processing the application are not appropriate issues for adjudication. By regulation, before an application can be referred to hearing, a completeness determination must have already been made. Therefore, since the instant application has been deemed complete by the Staff, it is not within the ALJ's authority to modify or expand the scope of the application.

Secondly, since the City is the SEQR lead agency, and since the City issued a negative declaration regarding the project's potential environmental impacts, neither the Department Staff nor the ALJ has any authority to assess the sufficiency of the lead agency's SEQR compliance.

Even in the event that the scope of the project was to be an appropriate area for inquiry by the ALJ, Staff's determination should be confirmed because it was made in accordance with all applicable provisions of law, including UPA and SEQR. The Staff believes the City's short-term land acquisition program has merits of its own and is sufficiently distinct from the City's longer range plans as to not require a comprehensive review of both programs prior to issuing a permit for the instant application. The Staff believes the segmentation of the short-term program from the long-term plan is justified in this case.

The DOH recited the efforts on the part of the EPA and DOH to assure protection of public water supplies through implementation of comprehensive watershed control programs. DOH also related the timeline regarding the interchanges among the City, EPA and DOH regarding the City's land acquisition/watershed control component of its filtration avoidance proposal.

In summary, DOH and EPA see a critical need for the City to immediately implement its land acquisition program. Therefore, DOH supports the City's short-term $44 million/10,000 acre land acquisition plan and believes the instant application should be limited to the short-term plan.

Senator Cook states the City is now firmly committed to undertake the full $201 million/80,000 acre land acquisition, as directed by the EPA December 30, 1993 second filtration avoidance determination. The City must make its detailed long range land acquisition plans available to EPA by the end of March 1994. Therefore, there is no valid reason that the short-term program should not be incorporated into the long range plans to enable a comprehensive review of the entire City land acquisition plans through the end of the decade, rather than issuing permits on a piecemeal basis.

Senator Cook maintains the separation of the short-term program from the long range plan violates the non-segmentation mandates of SEQR. Nearly a year ago, the City was making plans to acquire a total of 80,000 acres of land in the core areas around reservoirs, in critical stream corridors and in other environmentally exceptional areas. This action has been defined by EPA as Phase I of the City's acquisition program, and should be reviewed in its entirety. To consider either the short-term proposal or the long range plan separately will make it impossible to assess the impacts of the City's land acquisition as a single action which will have far reaching effects on the residents, businesses and municipalities in the watershed.

Moreover, EPA's December 30, 1993 filtration avoidance determination has effectively altered the timetable to make meaningless the City's short-term land acquisition plan. The City should now refocus its efforts on applying for approval of its longer range plans to acquire approximately 80,000 acres through the end of the decade.

Putnam County emphasized that it does not object to the concept of the City acquiring certain lands to protect its watershed. The County does object to what it sees as the City's one-sided approach to land acquisition, rather than working in concert with local governments to achieve a true partnership in management of the watershed.

Putnam County believes the City's application is incomplete, in that it does not identify specific parcels for acquisition, nor does it reveal the scope of the entire project. The County suggests the City should apply for a permit to cover acquisition of the entire proposed 80,000 acres through the end of the decade, and prepare a generic environmental impact statement ("GEIS") on the proposal. Then to acquire any one parcel, the City would only have to apply for a permit modification to add the specific parcel. When approved, the modified permit would authorize the acquisition.

The County believes the GEIS would provide the balancing of the whole project as required by SEQR and the water supply law. The current short-term project, coupled with a follow-on longer range plan, fails to meet the requirements of either law.

The Coalition asserts the City's plan, as proposed to EPA in September 1993, is to acquire approximately 80,000 acres for approximately $201 million through the end of the decade. EPA's December 30, 1993 filtration avoidance determination provides for the City to acquire 80,000 acres for protection of its water supply. The acquisition of an initial 10,000 acres in the instant application is virtually indistinguishable from the entire project. To not consider the entire 80,000 acre proposal is to evade full consideration of the impacts of the project. The City's statements that the longer range acquisition is not ready to be applied for belie its application for filtration avoidance to the EPA.

The City's plan, as submitted to EPA, clearly sets forth one single land acquisition program for 80,000 acres/$201 million which is then broken down chronologically into smaller phases, one of which is the short-term plan which is the subject of the instant application. EPA concurs with this approach.

The Coalition contends that the UPA requires consideration of the entire 80,000 acre project as a complete application, i.e. - where more than one permit is required for a project, applications for all permits must be made simultaneously, save for a demonstration that there is good cause not to do so. While, in this instance, the ALJ is precluded from ruling upon segmentation issues under SEQR, the Coalition argues those same segmentation issues, plus cumulative impact issues, are appropriate to consider under UPA and the statutory requirements for water supply permit issuance in ECL 15-1503(2). The Coalition bases these arguments on citations from the SEQR regulations, 6 NYCRR Part 617, on sections of the Department's SEQR Handbook (1992), and on SEQR case law.

The Coalition contends there is no imminent threat to the City's water supply which acquisition of only 10,000 acres of land will avoid, and therefore, concludes that there is no justifiable reason for not reviewing the entire 80,000 acre proposal at this time. To the contrary, the Coalition maintains that if review of the City's overall land acquisition plan is allowed to be segmented, as is currently proposed, there will be no comprehensive review of the implications of the project under the standards of ECL 15-1503(2).

Carmel asserts the project should consist of the entire land acquisition plan which the City has proposed to EPA and DOH, i.e. - 80,000 acres, encompassing what the City refers to as both the short-term and long-term acquisition plans. At the same time, Carmel advocates that a limited land acquisition program based upon specified willing sellers, especially in the West Branch Reservoir Basin, should be allowed to proceed without delay.

Carmel seeks to have SEQR revisited to comprehensively consider, in its entirety, the City's current disjointed approach to filtration avoidance/watershed protection. Each component of the City's current plan has been evaluated separately, contrary to the intent of SEQR. It is the Department Staff's responsibility, both as an involved agency and as the steward of the SEQR process, to ensure such a comprehensive review prior to issuance of any permits.

Carmel also believes that its development project in the Town of Kent, Putnam County, and others similar to it, should fall under the "good cause" clause of the UPA, thereby allowing the City receive a permit to buy its lands should a meeting of the minds occur. Carmel contends this would protect individual landowners with real and substantial investments in lands which have been severely compromised by the City's tactics. Development projects which otherwise would have likely received all regulatory approvals and be either under construction or completed by this time have been thwarted by the City for months and even years, at enormous costs to the developers. If the City seeks to purchase these properties for watershed protection purposes, it should be allowed to do so expeditiously and under a separate permit.

Summary and Ruling on the Principal Issue

As has been clearly stated in the City's application documents and by several of the parties, there is no question but that the City's current proposal to acquire some 10,000 acres for approximately $44 million is part of a larger acquisition plan which the City hopes to implement through the end of this decade. The preliminary questions posed in the instant proceeding are whether the City has impermissively segmented this initial part of its acquisition proposal from its longer range plans and whether the scope of the project now under consideration should be expanded to include the entire 80,000 acre/$201 million acquisition plan which the City plans to undertake through the year 1999.

The intervenors have proposed the segmentation issue should be examined on the basis of three different sections of the Environmental Conservation Law and the corresponding sections of the implementing regulations: ECL Article 8 - Environmental Quality Review and 6 NYCRR Part 617; ECL Article 15, Title 15 - Water Supply and 6 NYCRR Part 601; and ECL Article 70 - Uniform Procedures and 6 NYCRR Part 621.

- SEQR -

In this instance, the City, with the concurrence of the Department Staff, is the designated lead agency for SEQR purposes for the proposed project. In that role, the City, on December 16, 1993, issued a negative declaration regarding anticipated environmental impacts of the project. The City did not prepare an environmental impact statement. The City, the Department Staff and several of the parties correctly acknowledge that under these circumstances, neither the Department Staff nor the ALJ have the authority to review the negative declaration for this project, i.e. -- since DEC, as a non-lead agency, has no authority to review the lead agency's SEQR determination, it follows that any of the sub-entities of the DEC also do not have such authority.

I noted at the issues conference that the City's application for its short-term land acquisition program predates the effective date of the revisions to 6 NYCRR Part 624, Permit Hearing Procedures. The January 9, 1994 revisions clarify and codify various procedures for handling permit applications which have evolved and/or been adopted since August 3, 1981 when the earlier version of Part 624 became effective. It is particularly instructive to review the revised 6 NYCRR 624.4(c)(6)(ii)(a) under: Standards for adjudicable issues - SEQRA Issues, where an agency other than DEC serves as lead agency, "Whenever the lead agency has determined that the proposed action does not require the preparation of a DEIS, the ALJ will not entertain any issues related to SEQRA. Such issues may be considered, however, if lead agency status is re-established with the department pursuant to the provisions in section 617.6(f) of this Title."

When the City issued its negative declaration, the SEQR process ended (A-1 Recycling and Salvage, Commissioner's Interim Decision dated March 19, 1992). Particularly in response to Carmel's comment that DEC is the steward of the SEQR process, the State "Legislature has designated each "lead agency" as the guardian of the legal and environmental integrity of the SEQRA process relevant to specific actions within its jurisdiction." (Declaratory Ruling #8-01, Petition of Baker, et al., dated September 14, 1984.) DEC is not the "enforcer" of SEQR regulations among other agencies. (Id.)

Absent changed circumstances, i.e. - new information, etc., where there is a SEQR negative declaration issued by a lead agency, other involved agencies have no further role. Appeal of the lead agency's determination is to the courts. Consequently, the arguments regarding segmentation of the City's proposed land acquisition actions in contravention of SEQR are being posed in the wrong forum, as only the courts are able to enforce the responsibility of the lead agency to comply with SEQR. In this instance, if the City made an incorrect SEQR determination, that determination is subject to judicial review.

- UPA -

Several of the parties, but particularly the Coalition, seek to have the issue of segmentation of the first phase of acquisitions examined under the UPA provisions in 6 NYCRR 621.3(a)(4), which requires the simultaneous submission of all applications for a multi-permit project. However, the cited section of the UPA regulations relates only to a completeness determination. It does not address defining the scope of projects or environmental review. This section states:

PERMIT APPLICATION PROCEDURES

621.3 General requirements for applications.

(a) General requirements for complete application. In order to be determined complete for the purpose of commencing department review, the application for a permit . . . must meet . . . the following criteria: . . .

(4) If a project requires more than one Department permit, the applicant must simultaneously submit all of the necessary applications, or demonstrate to the Department's satisfaction that there is good cause not to do so."

The Commissioner has held on previous occasions that the determination of completeness under UPA is not reviewable in an administrative proceeding. (See In the Matter of LeFever Excavating, Inc., Interim Decision of the Commissioner, October 28, 1991, and also In the Matter of NYC Dept. of Sanitation Southwest Brooklyn Incinerator, Interim Decision of the Commissioner, March 2, 1994).

The Commissioner, in LaFever, said, "The completeness determination for a permit application under the Uniform Procedures Act ("UPA") (ECL Article 70) is intended to reflect the point at which the application contains sufficient information to commence regulatory review (ECL 70-0105(2)). It is contemplated that during the process of reviewing the application, the Department may have occasion to require the submission of additional information necessary to make determinations required by law (Atlantic Cement v. Williams, 129 A.D.2d 84, 3d Dept. (1987); 6 NYCRR 621.15(b)). Therefore, it follows logically that a determination of completeness under UPA is not invalid merely because the application does not contain all the information that will ultimately be needed to render a final decision."

Procedurally, once the completeness determination has been made, there is no turning back. This is so as not to undermine the default provisions in UPA (ECL 70-0109(1)(b)), where an application shall automatically be deemed complete if the Staff fail to issue a determination of completeness or incompleteness within 15 day time period expressly specified by the legislature. If a completeness determination was subject to change at the whim of an intervenor, many applications would never be able to proceed further through the review process.

In LaFever, the Commissioner continues, "It is, of course, obvious that merely because an application is complete, there is no guarantee that it will be approved. Any defects in an application will have to be addressed during the permit review process."

The revised Part 624 regulations are again instructive, if not governing the permit hearing process in this matter. Revised 6 NYCRR 624.4(c)(7) provides under: Standards for adjudicable issues - UPA Issues, "The completeness of an application, as defined in section 621.1(d) of this Title, will not be an issue for adjudication. The ALJ may require the submission of additional information pursuant to section 621.15(b) of the Part."

However, in the instant case, even if the Staff's completeness determination could be reviewed, I would concur with their determination. The Staff decided the short-term land acquisition proposal had merits of its own, apart from the long-term plan. In this instance, the Staff correctly made the determination that the application was sufficiently complete to undergo further scrutiny through the regulatory review process.

In summary, no circumstances have been presented which would lead me to believe the Staff's discretion under UPA was not exercised in a reasonable manner. Furthermore, I do not have any jurisdiction to tamper with the Staff's UPA determination regarding the completeness of the City's application for short-term land acquisition nor do I find any reason to alter the scope of the project for which the City has applied in view of the arguments presented here by the parties.

To the extent an issue may exist, it is not whether the application has been appropriately determined to be complete. Rather, it is whether there is enough information available in the application to review the proposed project against the applicable criteria. In this case, those criteria are found in the Water Supply Law, as discussed further in the following section.

- Water Supply Law -

Several of the intervenors seek to have the scope of the project redefined and expanded, contending the statutory criteria for water supply permit issuance in ECL 15-1503(2) require the review of the entire land acquisition plan of the City.

The statutory criteria in ECL 15-1503(2) derive from the Conservation Law of 1911 and stem from the legislative declaration of policy that the state must control and conserve its water resources for the benefit of all the inhabitants of the state (ECL 15-0105). These criteria impose upon every applicant for a water supply permit a set of standards which must be satisfied before a permit can be issued. These criteria relate to how a project gets approved, not how a project is defined. Furthermore, there is nothing in the criteria which prevents an applicant from proceeding with a water supply project in separate and distinct phases.

In the event an adjudicatory hearing is necessary for the instant project, now is the opportunity for the parties to define the subject matter for the hearing. "In situations where the Department Staff have reviewed an application and offer no objection to the issuance of a permit, the burden of persuasion that substantive and significant issues exist is on the intervening parties. In order to meet this burden 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." (See In the Matter of Halfmoon Water Improvement District No. 1, Interim Decision of the Commissioner, April 2, 1982).

"...[I]n order to raise an issue for adjudication, an intervenor must allege facts that are either (1) contrary to what is in the application documents or draft permit; (2) demonstrate an omission in the application or draft permit; or (3) show that defective information was used in the application or draft permit. The intervenor must also allege that if its facts are correct a regulatory or statutory standard or criteria might not be met." (See In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988). (Emphasis added.)

If there is an issue related to the City's application for its short-term land acquisition program, it may involve lack of information regarding the follow-on long-term land acquisition program. The burden of the intervenors is to demonstrate, with specificity and in a nonconclusory manner, that more information on the long-term proposal is needed in order for the Commissioner to make an informed judgment on whether the short-term plan meets the statutory criteria in ECL 15-1503(2).

In the absence of a showing that the application and/or the draft permit provides insufficient information upon which to judge it against the statutory criteria, there is no issue related to the scope of the project as defined by the applicant.

When I receive the filings setting forth proposed issues for adjudication (see below), I will determine if the proposed issues meet the standards for conducting an adjudicatory hearing.

Secondary Issue and Ruling

At the issues conference on February 17, 1994, the City informed the parties that it was submitting an additional water supply application expressly for the purpose of acquiring three properties in Town of Kent, Putnam County. The City explained that it had negotiated options on two of these three parcels, and seeks to enter into a purchase agreement on the third parcel, for the acquisition in fee, through the purchase from willing sellers, of these three properties in the West Branch/Boyd's Corner reservoir drainage basin of the City's watershed.

The City has identified the West Branch/Boyd's Corner basin as one of the most environmentally sensitive areas in its watershed. The City's assessment of the specific features of this drainage basin and of the subject parcels renders them critical for the City to proceed with immediate acquisition in order to prevent increased pollutant loadings in its water supply. The approaching expiration dates of the options on two of the properties and the fact that the third parcel has preliminary approvals for development of a residential subdivision make it imperative in the City's view that this application should be considered separately and quickly or the City may forever lose its opportunity to acquire these properties on a willing seller - willing buyer basis.

The City's February 9, 1994 application was forwarded to the me on February 28, 1994 with a request from the Department Staff to determine whether the application should be considered as a supplement to the current $44 million/10,000 acre project now under consideration or whether the application for the three parcels should be considered separately.

First, the City has not requested that its current application be amended or supplemented with the application to purchase the three Kent parcels. I do note, however, that all the supporting data is the same as for the current application. Additionally, on February 7, 1994, the City issued a Notice of Consistency with the Declaration of No Significant Environmental Impact for the New York City Short Term Land Acquisition Program.

Second, the Office of Hearings can only entertain applications if such applications have been referred for a hearing by the assigned Department Staff, or if the applicant, during the hearing process, seeks to amend its application. Neither situation pertains in the instant case.

Third, procedurally, the application has not undergone the requisite Department Staff scrutiny and UPA processing. There is no determination that the application is complete or public notice thereof.

In its current form, I am unable to consider the City's new application to acquire three specific parcels in the Town of Kent, Putnam County as a supplement to the instant project. At the same time, I note that due to the City's tardiness in submitting the application, it is likely that even if it is processed separately, permits may not be issued prior to the expiration of the City's options on two of the parcels.

I am therefore remanding the City's "three parcel acquisition" application to the Department Staff for appropriate processing in accordance with all applicable statutory and regulatory criteria.

Alternatively, it is clear that the City's objectives in seeking to acquire the three Kent parcels are precisely the same as the objectives of the short-term land acquisition program. Should the City decide to supplement or amend its current application to include the three Kent parcels, I would rule favorably on such a request.

Additional Briefing Schedule and Appeals

At the issues conference, the parties requested that I first rule on the scope of the project before they submitted briefs on the issues to be adjudicated. With the scope of the hearing now focused on the City's short-term land acquisition program, I request those parties opposed to the application submit their proposals for adjudicable issues to be delivered to all other parties not later than Monday, April 11, 1994. If, pursuant to 6 NYCRR 621.15(b), any of the parties believe that, substantively, additional information is reasonably necessary before either I or the Commissioner can make any of the findings or determinations required by law, this is the opportunity to explicitly bring this lack of information to my attention.

Since the City requested a two week period in which to prepare responses, I request those parties in favor of the application to submit their responses regarding adjudicable issues to be delivered to all other parties not later than Monday, April 25, 1994.

I will then prepare and transmit the issues rulings to all parties, along with a proposed schedule for the adjudicatory hearing. I request that if any party has a specific problem with the above submission dates they should immediately contact me upon receipt of these preliminary rulings.

Since these rulings are only preliminary in nature, they are not appealable at this time pursuant the provisions of 6 NYCRR 64.4(f) and 624.6(d). Following receipt of the issues rulings, the parties will have the opportunity to appeal those rulings and these preliminary rulings.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/s/
ROBERT P. O'CONNOR,
ADMINISTRATIVE LAW JUDGE
Dated: Albany, New York
March 24, 1994

To: The Service List (attached)

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