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Town of Shandaken Town Board v. Planning Board v. NYC DEP v. DEC

Lead Agency Dispute

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Proposed Belleayre Resort at Catskill Park located in the Towns of Shandaken, Ulster County, and Middletown, Delaware County

DISPUTING AGENCIES: Town of Shandaken Town Board, Town of Shandaken Planning Board, New York City Department of Environmental Protection and the New York State Department of Environmental Conservation

This decision to designate the Department of Environmental Conservation (DEC) as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my finding that the potential impacts from the proposed Belleayre Resort at Catskill Park are of greater regional than local concern that they require an agency with a regional perspective to lead the environmental review. This decision does not limit the responsibilities of the Town of Shandaken or the New York City Department of Environmental Protection (NYCDEP). Specifically, zoning and land use decisions will remain under the purview of the Town of Shandaken, while water quality issues pertaining to the New York City reservoirs will be made by NYCDEP.

The proposed project is the application of Crossroad Ventures, Inc. to construct the Belleayre Resort at Catskill Park on a 1,900-acre site adjacent to the Belleayre Mountain Ski Center. The proposal consists of two 18-hole golf courses and associated clubhouses and maintenance facilities; a golf academy or a third 18-hole golf course; 225 units of residential housing; 550 hotel lodging units; a 1,500-seat, open-air amphitheater and 80,000 to 100,000 square feet of commercial space. Approximately 500 acres of the 1,900-acre site will be affected by the proposed project, with 1,400 acres remaining undeveloped.

In order for the project to be constructed as proposed, the following must occur: the Town of Shandaken Town Board will be required to enact a zoning text amendment to create a recreational planned use development (RPUD) zone within the Town and a zoning map amendment to map the RPUD on the applicant's lands; the Town of Shandaken Planning Board will have to issue subdivision/site plan approvals and special use permits; the NYCDEP will have to approve plans for the design and construction of wastewater treatment facilities and the stormwater pollution prevention plan for the control of runoff both during construction and subsequent operation of the resort; and the Department of Environmental Conservation will be required to review and issue approvals for State Pollutant Discharge Elimination System permits (SPDES), crossings of protected streams, water supply permits and Water Quality Certifications pursuant to Section 401 of the Clean Water Act. The agencies that have expressed a desire to act as lead agency for the environmental review are the Town of Shandaken Planning Board and the NYCDEP. The Department of Environmental Conservation has stated that a regional agency would be the most appropriate lead agency. The Town of Shandaken Planning Board and the Department of Environmental Conservation have also requested that I consider a sequential approach whereby the local agency would act as lead agency for the initial review and consider and resolve the local approvals, and then the Department of Environmental Conservation would act as lead agency for any further site-specific environmental reviews. Although this approach has been used in the past, it is my preference to have a single agency oversee the development of the environmental record.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR Part 617.6(b)(5)(v). These are: (1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (2) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. The potential impacts from this mixed residential/resort development project proposed by Crossroads Ventures, Inc. include erosion, stormwater runoff during both construction and operation, noise, water supply, wastewater treatment, use of herbicides and pesticides, traffic, change in land use and secondary growth anticipated to be induced by a development of this magnitude.

A majority of the site and most of the physical construction will occur within the Town of Shandaken, although a portion of the site is in the Town of Middletown and the site is within the borders of two counties, Ulster and Delaware. Most of the direct impacts from construction and operation of the proposed Belleayre Resort such as erosion, stormwater runoff, noise, visual, water supply, traffic, the change in land use from an undeveloped wooded state to a four seasons resort and potential for secondary development are local impacts that will be experienced by the Town of Shandaken.

However, there is clear evidence of regional impacts from the construction and operation of a facility of this size. The potential for impact to the City of New York water supply is of regional significance. A development of this size located within the New York City watershed could have a significant impact on the Ashokan and Pepacton reservoirs which are vital components of the New York City water supply system. Contaminated runoff from herbicide and pesticide use and the treatment of up to 250,000 gallons of wastewater per day are clearly of concern to NYCDEP as it strives to protect the water supply of over nine million people. There is also regional concern due to the project's location in the Catskill Park and its proximity to state owned lands, including the Big Mountain Wilderness Area and the Belleayre Mountain Ski Center. Numerous protected streams are also located proximate to or within the project site, which are tributary to streams of regional and statewide importance as fishery resources. In addition, the adjacent Town of Middletown will also be impacted by the traffic generated by the development and the potential for secondary growth along the Route 28 corridor.

Given the potential for impact to resources of regional concern under the jurisdiction of the Department of Environmental Conservation, the potential for impact to the New York City water supply and the potential for impact to the Town of Middletown in Delaware County, I find that the impacts are primarily of regional significance and that an agency with regional jurisdiction must serve as the lead agency for this project.

I must next consider the second criterion to determine which of the agencies involved in this dispute possess the broadest regional authority over the proposed activity. Consideration of this criterion reveals a clear distinction between the two agencies which purport to have regional jurisdiction. As the State of New York's environmental agency, DEC is conferred broad authority under the ECL to conserve, manage and protect the natural resources of the state. Included within its statutory authority is jurisdiction over the state's water resources, both to ascertain the impacts of proposed projects on the health and welfare of the public and to ensure that discharges into the state's waters do not cause, directly or indirectly, a contravention of water quality standards. In carrying out its responsibility for the care, custody and control of the state forest preserve, DEC also has primary jurisdiction for the protection of natural resources in the Catskill Park. Many of the impacts of this proposal fall directly under the Department's regulatory authority.

NYCDEP has noted that it has been granted the express authority to review and approve certain key elements of the proposed project under its Watershed Regulations (15 Rules of the City of New York, Sections 18-11). The key elements are identified as: the design and construction of a septic system or wastewater treatment plant to treat sanitary sewage; the location and construction of impervious surfaces; and the preparation and implementation of a stormwater pollution prevention plan to control runoff both during and after construction. However, in comparison to the Department of Environmental Conservation's broad mandate for environmental protection, NYCDEP's jurisdiction is limited to those aspects of the project that are water related. It is this expansive authority for environmental protection that is the determining factor in the resolution of this dispute in favor of the Department of Environmental Conservation.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. All parties to this dispute possess the necessary staff or the ability to obtain the assistance of consultants to undertake an adequate environmental review of the proposed action.

For the foregoing reasons and based on the facts presented, I conclude that the Department of Environmental Conservation should be lead agency for the conduct of the environmental review for the proposed Belleayre Resort at Catskill Park project due to the regional nature of the impacts and the broad mandate for environmental protection that is an integral component of the Department of Environmental Conservation's jurisdiction.

Again, this decision in no way limits the jurisdiction or responsibilities of the Town of Shandaken and the NYCDEP. The Town of Shandaken will still be required to consider and approve the requested land use changes that are prerequisites for the development to be constructed as proposed and to consider subdivision and site plans for the specific development proposals. The specific expertise of the NYCDEP in the review of the development for impact to water quality is also essential to the construction and operation of this resort complex in an environmentally sensitive and compatible fashion. The record before me indicates that a draft environmental impact statement will be prepared to assess the potential impacts from both the proposed zoning decision and the subsequent project and that a formal scoping process will be conducted. I concur with this approach and I direct the Department of Environmental Conservation to actively involve the Town of Shandaken and the NYCDEP in the scoping and review of the environmental impact statement so that the specific expertise of the Town of Shandaken regarding land use matters and the NYCDEP regarding water.quality issues in the watershed can be brought into the review process in a timely and substantive way. Only by making the review a cooperative effort involving all of the agencies having a resource concern, will the environmental record developed by the Department of Environmental Conservation be able to satisfy the needs of all agencies when subsequent approvals are needed.

/s/
John P. Cahill, Commissioner
Dated: 3/20/00
Albany, New York

Disputing Agencies/Applicant:

  • Wayne Gutmann, Supervisor, Town of Shandaken
    Elizabeth Callahan, Chairperson, Town of Shandaken Planning Board
    Joel Miele, Sr., Commissioner, New York City Department of Environmental Protection
    Mark Hoffer, General Counsel, New York City Department of Environmental Protection
    Marc Moran, Regional Director, DEC Region 3
    Margaret Duke, Regional Permit Administrator, DEC Region 3
    Steven Schassler, Regional Director, DEC Region 4
    William Clarke, Regional Permit Administrator, DEC Region 4
    Daniel Ruzow, Whiteman, Osterman & Hanna, Counsel for Crossroad Ventures, LLC

New York State Department of Environmental Conservation:

  • Gavin Donohue, Executive Deputy Commissioner
    Sandy Allen, New York City Watershed Coordinator
    Jennifer Post, Director of Public Information
    Stephen Babarakis, Legislative Counsel
    Victor Gallo, Counsel, Division of Legal Affairs
    Jack Nasca, Division of Environmental Permits
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