New York State Thruway Authority (Stewart Airport) - Ruling, January 25, 2002
Ruling, January 25, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Application of
the New York State Thruway Authority
for Wetlands Permit and Water Quality
Certification for the I-84/Drury Lane
Interchange for Stewart Airport
RULING ON ISSUES
AND PARTY STATUS
DEC Application No. 3-3399-00032/00001
This ruling addresses the proposed issues for adjudication regarding the New York State Thruway Authority's ("NYSTA" or "Applicant") application for freshwater wetlands and protection of waters permits and a water quality certification in conjunction with the construction of a new interchange with Route I-84 at Drury Lane. The project includes the reconstruction of Drury Lane south to Route 207 and north to I-84 and a new four-lane "East-West Connector" (approximately 1 mile long) connecting Drury Lane to "C" Street leading to the airport terminal at Stewart International Airport. The project is located in the Towns of New Windsor, Montgomery and Newburgh, Orange County.
This Ruling also addresses the requests for party and amicus status made herein. The permit hearing procedures under Title 6 of the New York State Official Compilation of Codes, Rules and Regulations, Part 624, ("6 NYCRR Part 624") govern the proceeding. The Applicant and the NYS Department of Environmental Conservation ("DEC Staff"or "Department") are parties to the hearing under the DEC permit hearing procedures. A petition for party status was served by Riverkeeper, Inc. ("Riverkeeper") and a petition for amicus status was served by Stewart Park and Reserve Coalition ("SPARC").
The petitions of Riverkeeper and SPARC are denied, as more fully addressed herein. Upon my review of the record in this matter, I conclude that no issues require adjudication. A total of four issues were proposed for adjudication and they will be addressed in detail below.
By application dated October 27, 2000 the NYSTA applied to the Department and the United States Army Corp of Engineers ("ACOE") for freshwater wetlands (6 NYCRR 663) and protection of waters (6 NYCRR 608) permits from the DEC, a water quality certification from the DEC and a Section 404 permit from the ACOE. The permits and certification are necessary for the Applicant to commence a roadway project that will provide a new access road to Stewart International Airport from Interstate 84. The project calls for the filling of 5.37 acres of freshwater wetlands (of which 5.05 acres are state regulated) and 1.87 acres of open water.
The project will also require a State Pollutant Discharge Elimination System ("SPDES") general permit for storm water discharges from construction activities from the DEC. After the application was filed, Staff determined that the Applicant did not require the protection of waters permit. Pursuant to 6 NYCRR 608.5 the NYSTA, a public authority, is not required to obtain a Part 608 permit for this project.
This project is a "Type I" action under the State Environmental Quality Review Act ("SEQRA"). NYSTA, acting as lead agency, issued a positive declaration on December 12, 1997. NYSTA and the NYS Department of Transportation ("DOT"), in cooperation with the U.S. Department of Transportation, Federal Highway Administration("FHWA"), prepared a Draft Environmental Impact Statement ("DEIS") in 1999 and a Final Environmental Impact Statement ("FEIS") in March, 2000. A SEQR Record of Decision ("ROD") was issued in June, 2000 for this project.
The Department requested that a public hearing be held prior to Staff's intention to issue the requested permits, subject to further review by the ALJ and the Commissioner. A combined Notice of Complete Application and Joint Public Hearing dated September 27, 2001, was published in the Department's internet publication, Environmental Notice Bulletin ("ENB") on October 3, 2001 and in the Middletown Times Herald Record on October 4, 2001. Copies of the Notice were also sent to the persons identified as interested parties, and to Orange County, the Town of Newburgh and the Village of Montgomery.
Pursuant to the Notice, a public hearing was held on October 30, 2001. The public hearing was a joint legislative hearing held by the Department and ACOE. George Nieves, chief of the Western Permits Section of the New York District Regulatory Branch of the ACOE presided over the hearing on behalf of the ACOE and Molly T. McBride, Administrative Law Judge ("ALJ") presided over the hearing for the Department.
Two sessions of the legislative hearing were held on October 30, 2001. The first session was held at 3:00 p.m. at the Montgomery Town Government Center located at 110 Bracken Road, Montgomery, New York, and the second session was held at 7:00 p.m. at Valley Central Senior High School located at 944 Route 17K, Montgomery, New York. DEC Staff appeared by the following Staff from the Department's Region 3 office: Steven Goverman, Esq., assistant regional attorney; Margaret Duke, regional permit administrator; Larry Biegel, environmental analyst; and Lance Coolts, wetlands specialist. The Applicant was represented by Christopher Waite, Director of Design for the NYSTA. Mr. Waite gave a brief overview of the project at each session of the legislative hearing and Mr. Goverman presented the Department's position with regards to the project.
There were approximately 45 people in attendance at the afternoon session and nineteen people spoke on the project, 5 in favor and 14 in opposition. The hearing was adjourned at approximately 5:30 p.m. The evening session had approximately 50 attendees with twenty-four speakers, 5 in favor and 19 opposed to the project. The hearing was completed at 9:30 p.m.
The issues conference was convened at 10:00 a.m. on November 13, 2001 at the Montgomery Town Government Center, 110 Bracken Road, Montgomery, New York. The ACOE did not participate in the issues conference. 6 NYCRR Part 624 allows for participation at the issues conference by Department Staff and the Applicant (NYSTA) as parties to the proceeding. 6 NYCRR 624. 5(a). Also, those seeking party or amicus status pursuant to 6 NYCRR 624.4 may participate. The Notice of Public Hearing directed that those seeking party or amicus status file a written request to the Administrative Law Judge ("ALJ") by November 2, 2001. A petition for amicus status was filed by SPARC on November 1, 2001 and a petition for party status was filed by Riverkeeper on November 2, 2001.
DEC Staff appeared at the issues conference by Steven Goverman, Esq., assistant regional attorney, as well as Michael Merriman and Larry Biegel, Region 3, environmental permits. The NYSTA appeared by Keith D. Martin, Esq., Senior Attorney for the NYS Department of Transportation. SPARC appeared by Sandra Kissam and Riverkeeper appeared by Pace Environmental Clinic, Karl S. Coplan, Esq. and Brian Higbie, legal intern.
The issues conference was concluded on November 13, 2001. The parties made written submissions by December 7, 2001 and the transcripts were received on or about December 10, 2001. The record for the issues conference closed on December 10, 2001 upon receipt of the transcripts.
Standards for Identifying Issues for Adjudication
The purpose of the issues conference is to obtain sufficient information to determine who should be afforded party status and whether substantive or significant issues exist which require adjudication. The terms "substantive" and "significant" are defined at 6 NYCRR §624.4(c)(2 & 3). An issue is substantive if there is sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. 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.
In order to establish that an adjudicable issue exists,
"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).
The petition for amicus status of SPARC is denied. Pursuant to Section 624.5(b)(3), a petition requesting amicus status must identify the nature of the legal or policy issues to be briefed which meet the criteria of 624.4(c) (detailed above) as well as provide a statement explaining why the proposed amicus is in a special position with respect to that issue. SPARC has based its petition "...on an interest in the petition that is filed by Hudson Riverkeeper organization to obtain Active Party Status in this wetlands permit proceeding." SPARC acknowledges that it has the same interests as Riverkeeper. SPARC contends that it is in a "special position" based on its involvement in the environmental studies and meetings that led up to this application. Also, it is relying on its "first hand knowledge of the lands..." due to its use of the lands.
A party afforded amicus status has the right to file a brief, and, at the discretion of the ALJ, may present oral argument on issues identified in the ALJ's ruling on its party status. 6 NYCRR 624.5(e)(2). Riverkeeper has indicated that it intends to rely on the petition of Riverkeeper with respect to proposing issues for adjudication.
As SPARC is relying on the petition of Riverkeeper and offering nothing to supplement it or support that petition, I find that its participation would be cumulative and unnecessary. It is the job of the ALJ to "limit participation to avoid duplication of efforts and unnecessary burdening of the record." (In the Matter of Halfmoon, supra)
Riverkeeper filed a petition dated November 2, 2001 seeking party status pursuant to 6 NYCRR §624.5(b). Riverkeeper has proposed 4 issues for adjudication in its petition seeking party status. Section 624.5(b) identifies the requirements to obtain party status: file a timely petition that has the required contents as well as identify an issue for adjudication which meets the criteria of Section 624.4(c) and present an offer of proof specifying the witnesses, the nature of the evidence to be presented by that person and the grounds upon which the assertion is made with respect to that issue. Part 624 of 6 NYCRR places the burden of persuasion that an issue is substantive and significant on the party raising the issue. Riverkeeper has not met that burden with respect to the issues contained in its petition for party status. The petition is denied as no substantive and significant issue was presented.
The issues presented will be addressed separately, below.
Issue One: Whether the application must be denied because the proposed project does not meet the standards for issuance of a Freshwater Wetlands permit provided in 6 NYCRR §663.5, as that provision relates to practicable alternatives.
6 NYCRR §663.5(e) states the standards for issuance of a freshwater wetlands permit. Section 663.5(e)(1) identifies three compatibility standards that, if met, are sufficient for the Department to issue the permit. There is no dispute that the three compatibility standards are not met here. If the three standards are not met, then a permit may only be issued if the proposed activity meets each of the weighing standards delineated in Section 663.5(e)(2):
For wetland Classes I, II, III and IV, the proposed activity must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objectives and have no practicable alternatives on a site that is not a freshwater wetland or adjacent area.
For wetland Classes I, II and III, the proposed activity must minimize degradation to, or loss of any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits that the wetlands provides.
A permit shall only be issued if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of the Class II wetland.
Riverkeeper's first argument is that there are other practicable alternatives available that would have fewer direct and indirect effects on freshwater wetlands and therefore the Applicant has not met the first weighing standard. Although the Riverkeeper petition speaks in the plural regarding alternatives, only one alternative was addressed by Riverkeeper. Also, Riverkeeper acknowledged at the issues conference that it intended to offer proof on only one alternative. Riverkeeper's proposed alternative is an access road from Interstate 87 to the east side of the airport.
A total of seven alternatives were considered for this project. The FEIS detailed all seven alternatives and the ROD examined the seven alternatives and concluded that the project as proposed by NYSTA is the recommended alternative. The seven alternatives can be classified as one "no build" alternative and six "build" alternatives.
The alternative advocated by Riverkeeper has a projected impact on less than one acre of wetland as opposed to the NYSTA proposal, that affects 5.05 acres of state regulated wetlands. Although less wetland acreage will be impacted, this alternative would impact 83.5 acres of non-wetland area, as opposed to the NYSTA proposal that would impact 13.1 acres. It would require the taking of 3 residences and 12 active commercial properties as opposed to 2 residences and commercial land with no active businesses on them. There is also a significant difference in the projected costs of the proposals. The I-87 access road alternative has a projected cost of $58.13 million dollars and the NYSTA proposal has a projected cost of $43 million. Neither proposal includes the cost of taking the land required to build the project. The ROD concluded that the alternative proposed by NYSTA is "consistent with social, economic and other essential considerations, from among the reasonable alternatives thereto, the action is the alternative that minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the Environmental Impact Statement ("EIS")" and that "consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the EIS process will be minimized or avoided."
Riverkeeper has offered no new information that would call into question the ROD and its conclusions. No offer of proof was made that differed from what has already been examined at length. Attached to the Riverkeeper petition as Exhibit B is a document prepared by Riverkeeper's proposed expert witness, Ralph E. Huddleston, Jr., senior vice president of Carpenter Environmental Associates, Inc. Mr. Huddleston's sole commentary and offer of proof presented in Exhibit B with regards to the other practical alternative issue raised by Riverkeeper is a very general one. He states that "the Applicant has failed to fully consider the alternatives, specifically the alternative which provides direct access from the NYS Thruway to the east side of the airport." I disagree.
The ROD identified seven reasons why the access road from I-87 alternative was ruled out. Those reasons were:
"that I-87 is a toll road and therefore a new interchange would require a toll collection; the toll facility would be close to an existing toll facility at exit 17 and is not compatible with the proposed I-84/I-87 interchange which is on the short term list of improvement projects in the study area; it is not consistent with the Stewart Airport Master Plan update and it is not compatible with the local development plans; it would mix air travel related traffic with cargo and other truck traffic through Breunig Road and the terminal circulation area and would be disruptive of the Stewart Army subpost community; it would require 83.5 acres of right of way acquisition including displacement of 3 residences and 12 businesses; it is the most expensive of all alternatives considered; by concentrating most of the improvement around the currently congested Route 33/Route 207 intersection the widening/reconstruction associated with the proposed interchange would adversely impact the Lake Washington watershed."
Ruling on Issue 1: I am satisfied that the alternative of an access road from I-87 has been thoroughly examined and was ruled out as a practical alternative only after careful scrutiny. No offer of proof was made by Riverkeeper on this issue that would call into question the ROD and its conclusions. No offer of proof was presented on any other alternative so no other alternative need be addressed.
Issue 2: Whether the application must be denied because the proposed project does not meet the standards for issuance of a Freshwater Wetlands permit provided in 6 NYCRR §663.5 as it relates to pressing economic or social need that clearly outweighs the loss of or detriment to the benefit of the Class II wetland.
Riverkeeper contends that a permit can not be issued as the Applicant has failed to meet the weighing standard of Section 663.5(e)(2) that requires a showing that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit of the Class II wetland. Section 663.5(f) provides interpretations of some of the terms used in Section 663.5(e)(2). A pressing economic or social need has been interpreted to mean that it "should suggest that for the need to outweigh the loss or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not need to be necessary or unavoidable." 6 NYCRR §663.5 (f). "Clearly outweighs" has been interpreted to mean that the need for the proposed activity must outweigh the loss of or detriment to a benefit in a way that is beyond serious debate although there does not have to be a large or significant margin between need and loss. 6 NYCRR §663.5 (f)
Riverkeeper makes no offer of proof on this issue but argues that the application itself is deficient and therefore no offer of proof is necessary. Riverkeeper bases its arguments on the premise that due to the events of September 11, 2001 the projections for need to construct the access road relied upon by the Applicant are no longer credible and therefore the application is deficient. Riverkeeper does not state that if the data relied on by Staff is determined to still be credible, the application is still deficient.
Riverkeeper has asked that the ALJ take judicial notice of current events in considering this issue. An administrative law judge does not have the authority to take judicial notice, but pursuant to 6 NYCRR §624.9(a)(6) an administrative law judge may take "official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the department." New York Civil Practice Law and Rules ("CPLR") Rule 4511 governs the use of judicial notice. Rule 4511 states in relevant part, "Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state..." "Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions."
Riverkeeper has requested that the ALJ take judicial notice of the terrorist events that occurred on September 11, 2001. If I take official notice that a terrorist act occurred on September 11, 2001, I could not then interpret that event to mean anything with respect to the airline industry and the projections that have been submitted by NYSTA in support of its application. The Applicant has submitted data that addresses the need for this project that the Department has found to be sufficient, including traffic studies that identify congestion on local roadways that is anticipated to be alleviated by the access road construction and that better access from the major highways to the airport will result in an increase in the number of passengers using the airport, and will attract new airline passenger carriers.
Riverkeeper argues that it is common knowledge that air travel has decreased significantly since September 11, 2001. While I can take official notice that a terrorist attack occurred on September 11, 2001, I can not then interpret that event to mean anything in particular with regards to the airline industry. Riverkeeper has indicated that it intends to make no offer of proof on the issue of how the events of September 11, 2001 may effect the need for this project.
Staff has responded to this proposed issue by stating that the NYSTA has documented the pressing need in the application to the satisfaction of the Department. Department Staff indicated that they can not determine what, if any, long term effects the events of September 11, 2001 may have on the airline industry. Also, Department Staff notes that this pressing need issue is beyond the expertise of the Department and as a result, it has relied on the Applicant and DOT and has accepted the documents submitted in support of the application, including the ROD. The Department has found the information submitted satisfactory to meet this pressing need standard. The intervenor, pursuant to 6 NYCRR §624.4(c), is required to make a credible showing that a defect in the application is present and likely to affect permit issuance in a substantial way. Riverkeeper has not met this burden. Riverkeeper objects to the Department relying on the work of DOT and NYSTA and stated that the DEC has an obligation to do its own independent analysis and make independent observations. Staff refutes this argument by stating that no regulatory authority exists that requires them to hire a third party to conduct such a study, and that the Department routinely relies on the experts of the applicant in such a process. Riverkeeper offered no authority in support of its position that the Department should not rely on Applicant's experts or data.
Ruling on Issue 2: Based upon the extensive materials submitted by the Applicant and the arguments made at the issues conference, I find that this proposed issue is not substantive and significant. It is clear that Department Staff are satisfied that the pressing need has been demonstrated and Riverkeeper has offered nothing to refute that. Its superficial challenge falls short of being substantive and significant.
Issue 3: The mitigation plan offered has substantial deficiencies and does not meet the standards of 6 NYCRR §663.5(e).
Riverkeeper argues that the mitigation plan fails for 7 reasons outlined at the issues conference: the plan lacks a serious analysis of the hydrology; the soil analysis is inadequate and the soil present is inadequate to support a wetland; the proposed vernal pools will likely be unsuccessful; the plan does not address how existing wetlands will be protected during construction; impacts will be to more than the 5.05 acres of state regulated wetlands identified; a nearby mitigation site created by GE is failing so this site will fail; the regulations require mitigation in the immediate area and this site is 3 miles from the site being filled.
Issue 3a: Hydrology will be addressed first. Riverkeeper argues that the mitigation plan calls for lowering ground elevation to 360 feet at the mitigation site, which is not enough to ensure that hydrologic conditions necessary to support wetland vegetation will result. A Conceptual Wetland Mitigation Report ("Wetland Report") was submitted by Applicant in February, 2001. This Wetland Report addresses the existing hydrology at the proposed mitigation site. It states, "Hydrology varied from standing water to saturated soils." Other hydrologic indicators at the site were noted, including drainage patterns, water marks on vegetation and water stained vegetation.
Riverkeeper's offer of proof on hydrology is the testimony of Mr. Huddleston. His comments attached to Riverkeeper's petition are, as to hydrology: "No demonstration has been made to show that lowering the ground elevation will result in the hydrologic conditions necessary to support wetland vegetation." However, a review of the Wetland Report reveals significant information supporting Applicant's site selection. Specifically, it notes that hydrologic input will consist of groundwater, direct participation, and surface runoff from adjacent watershed. The Wetland Report notes: "To ensure the required wetland hydrology, the mitigation design will depend primarily upon groundwater and surface runoff input and secondarily on direct participation." It is also noted in the Wetland Report that the area will have a seasonally flooded hydroperiod that will vary in depth. This will be achieved by excavating these areas to a shallower depth than the seasonally saturated forest and scrub/shrub wetlands. Riverkeeper questioned the selection of 360 feet for excavation and the Wetland Report identified that that elevation was chosen because the groundwater data from monitoring wells on site "shows this elevation as the lower third of groundwater readings from the monitoring wells." (Conceptual Wetland Mitigation Report, February, 2001) Attached to the Report is the well data from the site. Also, a ditch located at 360 feet has flowing water in it throughout the year. Riverkeeper's expert's sole support for his conclusion that the hydrology is insufficient is that the site contains other areas that have an elevation of 360 feet and the site has not developed wetland characteristics naturally. As stated in In the Matter of Halfmoon, supra, conclusory statements are not sufficient to raise an issue without a factual foundation. Riverkeeper offered no factual foundation.
Ruling on Issue 3a: I find the Applicant's Wetland Report supports the Applicant's position factually while Riverkeeper fails to support its conclusions.
Issue 3b: Riverkeeper's second challenge to the mitigation plan is its assertion that the soil studies for the mitigation site are inadequate and the soils known to be present at the site are inadequate to maintain wetland vegetation. Department Staff responded to this challenge by stating that it has reviewed the Wetland Report, and is satisfied that the Report provides sufficient detail as to the soil present at the site. Also, Staff notes that it can and will order whatever soils are necessary to be brought in to allow for proper vegetative growth as part of the permit conditions. It is important to note that a final mitigation plan has not been completed and Staff has made it clear that any permit issued will have terms and conditions related to the mitigation plan that specifically address such things as soil introduction.
The Applicant responded that if this matter proceeds to a hearing on this issue it intends to produce seven witnesses, experts in this field, all of whom will testify that the plan has a very high likelihood of success.
A review of the Wetland Report with regards to the soil analysis indicates that the soil composition at this site has been detailed. The Wetland Report notes that soil at the site has been mapped in the Orange County Soil Survey which is attached to the Report. The primary soil at this site has been identified as Canandaigua silt loam (Ca) and described as deep, nearly level, poorly drained to very poorly drained. The Wetland Report goes on to state that the water table is at or near the surface for prolonged periods. Some areas are ponded for brief periods in spring. Permeability is moderate or moderately slow in the surface layer and subsoil and moderately rapid in the substratum. Runoff is very slow, and available water capacity is high. In addition to the information provided in the text of the Wetland Report there is a Soils Map attached that details all of the soils in the area. Again, Riverkeeper fails to supports it conclusory statements that challenge the mitigation plan. No specific objection was made to the soils that have been identified at this site in the Wetland Report. The types and quantity of soil are not commented on except in a very general and conclusory manner. A review of the Wetland Report contradicts those conclusory statements.
Ruling on Issue 3b: I find Riverkeeper's challenge is insufficient. No specific challenge was made and the Wetland Report submitted by Applicant provides sufficient detail as to the soils at the mitigation site. While Riverkeeper presents general, conclusory arguments, Applicant has submitted documents in support of the application that are detailed and well documented. Again, the challenge falls short of being substantive and significant.
Issue 3c: Riverkeeper's third challenge to the mitigation plan is that the vernal pools will not succeed.
Riverkeeper supports this challenge to the mitigation plan by stating that the Vernal Pool Mitigation Feasibility Report ("Vernal Pool Report") fails to provide a detailed description of the phases associated with the creation of a vernal pool, including "hydraulic and topographic investigations" for individual sites, detailed biological analysis and projected monitoring plans post-creation.
Again, a review of the Vernal Pool Report discredits Riverkeeper's challenge. The Applicant submitted a Vernal Pool Mitigation Feasibility Report as part of the application process which provides a detailed description of the plan to create the pools and the supporting hydraulic and other investigations and maintaining plans. This Vernal Pool Report contains 42 pages of text, maps and charts that document the site selection process undertaken by the Applicant. The Applicant has proposed creating 1.37 acres of vernal pool habitat. The Department presented 8 potential sites for the mitigation and Applicant studied those sites as well as 7 others. Each site was analyzed for the following: size; dominant canopy species; groundcover species; dominant canopy and groundcover species outside the site; soil types, depth and characteristics; drainage water source to the area; and potential impacts to surrounding cultural resources as detailed in the Environmental Impact Statement. Also, each site was reviewed to ascertain how it could function as a vernal pool and what work would be necessary at the site to construct the vernal pool, including excavation, plant removal, fill removal, placement of fill and plants that were removed. The Vernal Pool Report documented why certain canopy trees were retained at the site (to reduce evaporation) and how the water sources would be maintained at each site. The report also acknowledged that additional final studies would be needed to determine if the subsoils found in the area were sufficient to retain surface water, or if mechanical compaction or a clay liner would be necessary.
I find that the Vernal Pool Report is quite thorough and addresses all of the challenges raised by Riverkeeper, except long-term monitoring of the site. However, the Department has already stated that it will require long term monitoring, as is customary in wetland applications. The monitoring is generally for 10 years and the Department can and will require that the project be redone if the plantings are not successful. The Department stated that one of the reasons it has not issued draft permits was that it was looking for public input to assist in developing the project further.
While Staff acknowledges that the creation of vernal pools is a relatively new event, Staff has had success with these pools and in its opinion believes that the Plan submitted by the Applicant will in fact succeed.
Ruling on Issue 3c: Riverkeeper fails to support this challenge with factual information and relies on conclusory statements. No adjudicable issue regarding vernal pool creation is presented.
Issue 3d: Riverkeeper's fourth challenge is that the Mitigation Report does not address how existing wetlands will be protected during construction. Staff has stated that the final permit conditions will address this issue and it final permit conditions can not be written until the construction project has been finalized. Applicant indicated that it will follow whatever is required under the permit. I find this sufficient.
Ruling on Issue 3d: No issue exists with respect to the protection of existing wetlands during construction.
Issue 3e: The fifth challenge to the Mitigation Plan by Riverkeeper is that more than the 5.05 acres of wetlands will be impacted by this project. More specifically, Riverkeeper's expert states that the project has not taken into account the overall impact of the proposed project to major drainage systems and watersheds of the region which are connected hydraulically to the streams and wetlands associated with this project. Mr. Huddleston also notes that certain reptile, amphibian and bird species will be disturbed.
First, with respect to the reptile, amphibian and bird species, the Vernal Pool Mitigation is being implemented solely to provide for these different species. Accordingly, I find the intervenors argument is without merit.
As to the other impacts noted by Riverkeeper, Mr. Huddleston spoke in generalities and conclusory statements yet again. While he objects that to the disturbance to a larger system, other than addressing the reptiles, amphibians and birds, he provides no detail as to what or how the larger system will be disturbed. Moreover, no additional offer of proof was made on this issue at the issues conference.
Ruling on Issue 3e: Riverkeeper has not presented an issue that requires adjudication with respect to other impacts to the area from the project.
Issue 3f: Riverkeeper alleges that this mitigation plan will fail because a mitigation site for an unrelated project in Orange County failed.
Riverkeeper notes that GE was ordered to create a mitigation site in the general area of this project. Riverkeeper has no offer of proof as to how the GE mitigation site or its mitigation plan are related or similar in any way to the Applicant's proposed mitigation site. Riverkeeper merely alleges that since the GE site failed, this site will also fail. SPARC alleged that both areas were a field at one time. This offer is the only offer of proof on this issue and it is insufficient.
Ruling on Issue 3f: Riverkeeper has not presented an issue that requires adjudication with respect to the GE mitigation site.
Issue 3g: The regulations call for the mitigation site to be on or in the immediate vicinity of the proposed project. Riverkeeper objects to the mitigation plan because the mitigation site is three miles west of the proposed project site. Riverkeeper makes the conclusory statement that three miles is not in the immediate vicinity but fails to offer anything further as to why this is not considered sufficiently close. Also, Riverkeeper offers no factual proof as to how the 3 mile distance plays any role in the success or failure of the mitigation plan.
Ruling on Issue 3g: Riverkeeper has not presented an issue that requires adjudication with respect to the placement of the mitigation site.
Issue 4: The Applicant has failed to consider the cumulative impacts to the area from other development that will occur in the area of the proposed project and that by not looking at all, it is segmenting the review process.
Segmentation is defined as follows:
6 NYCRR §617.2(ag) "Segmentation means the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance."
6 NYCRR §617.3(g)(1) "Considering only a part or segment of an action is contrary to the intent of SEQR."
Riverkeeper contends that the application review process must include a thorough review of the impacts that may occur from the other development that is being considered. Riverkeeper identified one specific project, the south cargo area project. However, Riverkeeper does not limit its request for review to the development of the south cargo area. It contends that all projects that would bear on the argument that there is a pressing economic and social need that clearly outweighs the loss of or detriment to the wetlands must be considered. Riverkeeper's expert stated "the entire development plan and its impacts should be considered as a whole as required by SEQRA.".
Department Staff opposes any such review, noting that 6 NYCRR §624.4 specifically prohibits such a review. According to Staff, these impacts have been addressed in the SEQR process and there is still pending litigation with regards to that process and the issue should only be addressed in that proceeding. 6 NYCRR §624.4 identifies the standards for adjudicable issues. Section 624.4 (6)(ii)(b) states in relevant part: whenever the lead agency (not DEC) "has required a DEIS, no issue that is based solely on compliance with SEQRA and not otherwise subject to the department's jurisdiction will be considered for adjudication." Three exceptions to this rule are noted in this part but none apply to the case herein.
The question then is, does the Department have jurisdiction over this issue of cumulative impacts and segmentation within the boundaries of 6 NYCRR §663.5? The Section 663.5 standards that apply have been identified above. Those standards do not call for a cumulative impacts/segmentation review. Riverkeeper argues that the prohibition found in 6 NYCRR §624.4 can be overcome by examining and applying the weighing standards. However, nothing in 6 NYCRR §663.5 provides for such a review and Section 624.4 specifically excludes this review. Therefore, I am constrained by the limitations set by Section 624.4 and must agree with Staff that cumulative impacts and segmentation are issues that can only be addressed in the SEQR process.
Ruling 4: Cumulative impacts/segmentation are not issues that can be adjudicated in this proceeding.
Accordingly, for the reasons stated above, no issues are found to be adjudicable. Riverkeeper's petition for party status is denied.
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. Appeals are due by February 15, 2002. Replies are due by March 1, 2002.
Any appeal must be received at the office of the Commissioner no later than 4:00 P.M. on the date specified, at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010.
The parties are to transmit copies of any appeals to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner. One copy should be served on the Administrative Law Judge and two copies should be served on the Commissioner. Service by fax is not authorized.
Appeals should address these rulings directly, rather than merely restating a party's contentions.
In the event that no appeals are filed, I hereby remand the application to Staff for further processing.
Molly T. McBride
Administrative Law Judge
Albany, New York
January 25, 2002
To: Service List, attached