NYS DEC and Town of Riverhead Planning Board
PROJECT: Application by Island Water Park, Inc. for a site plan amendment and Mined Land Use and Reclamation plan modifications, to construct one lined water ski pond from an existing excavated area of land and a riding area for motorized recreational all-terrain vehicles in another existing excavated area on a 30-acre Parcel in the Town of Riverhead, Suffolk County.
DISPUTING AGENCIES: New York State Department of Environmental Conservation and Town of Riverhead Planning Board.
This decision to designate the New York State Department of Environmental Conservation (NYSDEC) as lead agency for the conduct of the environmental review under the New York State Environmental Quality Review Act (SEQR) for the above project is made pursuant to Article 8 of the New York State (NYS) Environmental Conservation Law (ECL) and Part 617 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR Part 617, or Part 617). This decision is based on my finding that, while there are both local and regional anticipated impacts from this project, the regional impacts override those of strictly local concern and further that NYSDEC has the broadest authority in this matter to manage regional impacts.
The proposed project is the application by Island Water Park, Inc., to construct one lined water ski pond from an existing excavated area of land; to construct a riding area for motorized recreational all-terrain vehicles (ATV) in a second existing excavated area; and to build a new 60,000 square foot storage building, parking area and restroom facility. The project is located on approximately 30 acres of land within what is commonly called the Former Grumman Facility, located on Route 25, near the intersection of Wading River-Manorville Road in the Town of Riverhead, Suffolk County. The project as now proposed will require a site plan amendment as well as modifications of the applicant's Mining and Mined Land Reclamation Plans.
NYSDEC issued a Mined Land Reclamation permit on January 6, 2003, for a project at this location that involved the excavation of sand and gravel preparatory to creating two lined water ski ponds. The Town of Riverhead Planning Board (Riverhead Planning) issued a site plan approval for the same project on February 4, 2003. Both of those prior approvals followed an environmental impact statement (EIS) for which NYSDEC served as the lead agency after the Town of Riverhead explicitly deferred to NYSDEC to do so. NYSDEC then served as lead agency for a Supplemental EIS (SEIS) addressing an earlier proposed project modification, again with the concurrence of the Town of Riverhead; that SEIS was never completed as the sponsor withdrew that earlier modification proposal.
The construction of a lined water ski pond with parking area and restrooms now proposed on the eastern portion of the property is generally consistent with activities approved by both NYSDEC and the Town of Riverhead in 2003. The current proposal, however, calls for modifying the mining, reclamation and site plans for the second, more western of the two originally-proposed ski ponds to allow construction of an ATV riding area and a new storage building on that area. The revised proposal also calls for the action to be completed in three phases: Phase I to be preparation and development of the western, former ski pond area for immediate ATV use; Phase II to be completion of the eastern ski pond; and Phase III to be the construction of ancillary components of the project such as access roads, parking areas, boat ramp and bathrooms.
The project is located over an area designated as a sole source aquifer for Long Island. In addition, the project site is part of an area identified as a Special Groundwater Protection Area, part of the sole source aquifer's deep recharge zone. The site is currently zoned Recreational Sports Park Subdistrict, so no zoning change is needed to allow the proposed modifications of the site's development and use.
The disputing agencies are Riverhead Planning and NYSDEC. Riverhead Planning has jurisdiction through site plan review to approve or deny amendments to the site plan approval previously granted for the original project. NYSDEC has jurisdiction to issue or deny the requested modification of the existing NYS Mined Land Reclamation Law (MLRL) permit. In addition, NYSDEC is the primary agency responsible for protecting the sole source aquifer system on Long Island and so must administer all its permitting authorities so as to protect the aquifer and water regime of Long Island.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are:
- 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);
- which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
- which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
In considering the first criterion, I must look at the range of anticipated impacts and determine whether they are primarily of statewide, regional or local significance. Early in the coordination process, Riverhead Planning identified concerns as to whether the proposed modifications would be acceptable under the MLRL reclamation plan approved in 2003. Riverhead Planning also identified potential impacts to groundwater and wildlife resources from ATV fueling and use. In a later letter submitted on behalf of Riverhead Planning, other impacts were identified related to, "... Riverhead Town's zoning, planning, traffic, community goals and objectives, landscaping, building construction, handicapped accessibility, lighting, drainage, buffering, sewer, water, fire protection, emergency services access and architectural review". The site is located entirely within the boundaries of the Town of Riverhead, and most of those additional potential impacts which Riverhead Planning identified as associated with the proposed site plan modification will occur primarily within Town limits. Further, these particular areas of potential impact are primarily of local concern, and could be effectively addressed pursuant to Riverhead Planning's site plan review authority.
However, NYSDEC noted the potential involvement of the Central Pine Barrens Commission (CPBC), a regional body, and identified the following potential impact concerns: protection of groundwater, particularly the sole source aquifer; impacts to an endangered species, based on two Tiger Salamander breeding ponds near the project area; traffic; and protection of pine barrens. NYSDEC characterized both protection of endangered species and the sole source aquifer as potential impacts of regional significance.
I concur that groundwater and aquifer protection plus threatened and endangered species protection are regionally significant impacts. Thus, while this project has the potential to create both local and regional impacts, there is a compelling and overriding need to assess potential impacts to a sole source aquifer, including evaluating alternatives and mitigation, combined with protection of threatened or endangered species and their habitats. An agency with regional jurisdiction is, therefore, the more appropriate lead agency for this project, and so the first criterion clearly favors designating NYSDEC as the lead agency for this project.
The second criterion, breadth of authority, also favors NYSDEC. While Riverhead Planning's municipal site plan review authority is generally broad enough to enable it to effectively address identified local impacts, NYSDEC is the agency with sole actual authority over the conduct of mining operations and, significantly, the condition in which a property is left at the conclusion of approved reclamation activities. In this case, NYSDEC has specific authority over the elements of the reclamation plan addressing creation of the ski pond lining as well as depth of remaining soil, sand and gravel left in the proposed ATV-use area. NYSDEC thus possesses, by virtue of its exclusive authority over all mining and reclamation activities, the broadest ability to require implementation of any impact avoidance or mitigation measures that may be revealed during the environmental review. Accordingly, consideration of the second criterion also favors designating NYSDEC as the lead agency for the environmental review of this project.
The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Since I can reach a determination without relying on this third criterion, I need not address this question.
Given the regionally significant potential impacts from the proposed project, and the related need for a lead agency with substantial breadth of authority, I therefore conclude that the NYSDEC should be lead agency for the SEQR review of the proposal by Island Water Park, Inc. to modify its site plan and MLRL mining and reclamation plans, including addition of an ATV facility.
By this decision, I am directing the Region 1 Office of the NYSDEC to manage the SEQR review for this project on behalf of the NYSDEC. In addition, this decision in no way limits the jurisdiction or responsibility of the Town of Riverhead Planning Board, including its site plan review authority within all realms allowable under the MLRL. The applicant must still apply for and obtain any necessary Town approvals prior to commencing the action. I encourage the Town of Riverhead Planning Board to continue to identify all of its environmental concerns so that the Region 1 Office of the NYSDEC can consider them as it conducts the environmental review of the proposed project.
Aexander Grannis, Commissioner
Albany, New York
Distribution of Copies
Town of Riverhead Planning Board
c/o Office of the Town Attorney
200 Howell Avenue
Riverhead, NY 11901-2596
NYSDEC Region 1
Division of Environmental Permits
SUNY @ Stony Brook, 50 Circle Road
Stony Brook, NY 11790-3409
Att'n: Mark Carrara, Deputy Regional Permit Administrator
John B. Zollo
The Law Offices of Vincent J. Trimarco
1038 West Jericho Turnpike
Smithtown, NY 11781-3299
[for the applicant] CC's:
Central Pine Barrens Joint Planning and Policy Commission
P.O. Box 587; 3525 Sunrise Highway, 2nd Floor
Great River, NY 11739-0587
Att'n: Peter A. Scully, Commission Chair
Suffolk County Department of Health Services
225 Rabro Drive East
Hauppauge, NY 11788
New York State Department of Environmental Conservation:
Peter A. Scully, Regional Director, DEC Region 1
Roger Evans, Regional Permit Administrator, DEC Region 1
Lawrence H. Weintraub, Esq., NYSDEC Office of General Counsel, Albany
Betty Ann Hughes, NYSDEC Environmental Permits, Albany