Town of Mamakating Planning Board, Town of Thompson Planning Board, and the NYS DEC
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) is made pursuant to Article 8 of the New York State (NYS) Environmental Conservation Law (ECL) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Part 617. This decision is based on my finding that the NYSDEC is the most appropriate lead agency given the substantial potential regional and broader impacts of the proposed project.
The proposed action involves the proposal by Kingwood LLC and Parkwood LLC to create a large-scale mixed-use development on approximately 1,845 acres in the Towns of Mamakating, Thompson and Fallsburg, Sullivan County. The project proposal includes construction of approximately 1,000 new detached single-family residential units plus approximately 1.3 million square feet of commercial development, with supporting new roads, central sewage treatment system, and central water supply from on-site wells. About 60% of the total acreage, including all of the currently-proposed commercial development, is located in the Town of Mamakating. The residential development would be divided between the Towns of Mamakating and Thompson, and roads alone would be constructed on the small project area within the Town of Fallsburg. The site is rural in nature, including successional forest and abandoned agricultural land as well as substantial areas of wetlands. It is located about midway between Middletown and Monticello, roughly 2 miles north of NYS Route 17 (future Interstate 86) at the property's closest point to that highway.
The project sponsor requested this designation of lead agency to resolve a dispute between the Town of Mamakating Planning Board (Mamakating Planning) and the Town of Thompson Planning Board (Thompson Planning). In response, Mamakating Planning provided an identification and preliminary evaluation of potential impacts; characterized them as predominantly local; and indicated its continued interest in serving as lead agency for the project. In its response, Thompson Planning requested that the Commissioner designate the NYS Department of Environmental Conservation to serve as lead agency for this project, citing potential impacts to the Neversink River and tributaries which it described as of both regional and statewide significance. NYSDEC then responded, concluding that some of the impacts identified by Thompson Planning were unlikely, including possible impacts to endangered species within the main stem of the Neversink, and further commented that while other large and significant adverse impacts are possible, those impacts are all primarily local in extent. On that basis NYSDEC supported designation of a local agency as lead.
The role of lead agency may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. There are multiple "potentially involved" agencies with approval or permitting authority for this project as currently proposed:
- Mamakating Planning's jurisdiction includes subdivision approval for all aspects of the project within Mamakating; site plan approval for the commercial development; special use site plan approval for the proposed sewage treatment plant; and permission for four test wells as part of developing the proposed water system.
- Thompson Planning's jurisdiction is subdivision approval for the portion of the project within the Town of Thompson.
- NYSDEC's jurisdiction includes the NYS Pollutant Discharge System (SPDES) permit for treated wastewater discharge; Public Water Supply permit for water takings from the proposed wells; Freshwater Wetlands permit for disturbances to state regulated wetlands and their 100-foot regulated adjacent areas; Protection of Waters permits for disturbances to the bed or banks of several state regulated streams on the property; Water Quality Certifications for discharges of fill to U. S. Army Corps of Engineers' regulated waters (including wetlands less than 12.4 acres); and a SPDES Stormwater Pollution Prevention Plan (SWPPP) for the entire development.
- NYS Department of Health has jurisdiction over the water supply, including production and distribution systems.
- Delaware River Basin Commission must approve the sewage treatment plant and the water supply.
- Sullivan County Department of Public Works will need to issue road access permits.
- Town of Fallsburg will also need to issue road access approvals.
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). The three criteria 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.
The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance. In this case, to the extent that potential impacts have been identified by the responding agencies, many of those impacts are largely local. Construction-related impacts like heavy vehicle traffic, land clearing, equipment operation, and noise are primarily local. In contrast, some operational-phase impacts could be very large and have greater than local consequences, including but not limited to traffic to the residences and commercial area, water use, and wastewater disposal. Indeed, as Delaware River Basin Commission approval of the sewage treatment plant and water supply is required, there is inherently a regional component to the impacts. Accordingly, based solely upon the submissions made by the responding agencies and the permit requirements, I cannot conclude that the impacts are of primarily local significance.
In considering the first criterion, I will note that in addition to the impacts set forth by the responding agencies, there are other categories of major impacts which were neither identified nor discussed in the submissions. As the underlying statute and regulations do not limit my review on this application to the agency submissions, given the nature of the proposed development it is appropriate for me to take into account these other clearly significant impacts. To begin, the wetlands on the property are identified in the NYS Open Space Plan as the Harlen Swamp Wetland Complex component of the Neversink Highlands Open Space Project, which is included in the Open Space Plan for its high habitat value. The potential direct impacts to those wetlands, as well as major changes in nature and intensity of use of their associated uplands, would be regionally significant impacts.
There are also potentially very significant impacts stemming from the proposal to locate a project of this scale in such a relatively remote rural area. Current land uses near the proposed project include clusters of small lots associated with several small lakes or existing hamlets, but otherwise sparse development scattered along roadways. Remote, "ex-urban" subdivisions such as the one proposed here may contribute disproportionately to accelerated generation of greenhouse gases, based on their inherently long daily driving distances to jobs or services for residents, equally long drives by potential customers of the commercial area, and basically car-dependent layout. Further, such isolated, sprawling subdivisions can also consume disproportionate open land, water, and energy resources while exacerbating fragmentation of large habitat areas like forests and grasslands as well as wetlands, and thus represent a development pattern which is unsustainable in the long term. These additional potential impacts are of far more than local importance, and indeed may rise beyond even regional significance.
I accordingly conclude that the potential impacts of this project, based upon both the submissions made by the responding agencies as well as the other factors discussed above, are not primarily local. Given the broad nature of the potential impacts, including the Open Space Plan implications and the regional consequences of a very large, sprawling project in a rural area, I conclude that NYSDEC is most appropriately designated lead agency under the first criterion.
The second criterion, breadth of authority to conduct the environmental review, also favors NYSDEC. NYSDEC has broad mandates encompassing protection of air and water resources and quality in general; regulation of land uses in and adjoining wetlands; regulation of new water supplies and of large wastewater discharges; and maintenance or preservation of valuable or unique habitat complexes. NYSDEC staff includes members with technical specialities which will enable it to most effectively address the whole range of potential impacts of the proposed project, specifically including the regional and wider impacts of accelerated greenhouse gas generation and habitat fragmentation as well as the infrastructure and resource demands inherent in such a massive development. Compared to a local lead agency whose authority and expertise is limited to land use within its boundaries, NYSDEC clearly has the more appropriate authority to conduct the scale of environmental review which this proposal demands.
As I am able to reach a decision based on the first two criteria, I need not consider the third. For the foregoing reasons and based on the facts presented by this particular application, I conclude that the New York State Department of Environmental Conservation should serve as lead agency for the environmental review of this project.
This decision does not in any way change the jurisdiction of any other involved agencies. I specifically encourage the Towns of Thompson and Mamakating Planning Boards to actively participate in all phases of the environmental review of this project, particularly as to identifying information needs and impact evaluations necessary to support their local land use decisions. I further encourage NYSDEC staff to openly facilitate that participation.
Alexander B. Grannis, Commissioner
Dated: December 5, 2007
Albany, New York
Distribution of Copies
James Lyttle, Chair
Planning Board, Town of Thompson
John Piazza, Chair
Planning Board, Town of Mamakating
Michael B. Mednick, Esq., Town Attorney, Town of Thompson
Langdon C. Chapman, Esq., Deputy Town Attorney, Town of Mamakating
Bonacic Krahulik & Associates, LLP
Paula Elaine Kay, Esq., Jacobowitz and Gubits, LLP
representing Town of Thompson Planning Board
Steve Barshov, Esq., Sive, Paget and Reisel, P.C.
NYS Department of Health:
Sullivan County Division of Public Works
Sullivan County Dept. of Planning and Community Development
Region 3, NYS Department of Environmental Conservation
Attention: Willie Janeway, Regional Director
Region 3, NYS Department of Environmental Conservation
Attention: Margaret Duke, Regional Permit Administrator
New York State Department of Environmental Conservation
Lawrence H. Weintraub, Esq., Office of General Counsel
Betty Ann Hughes, Division of Environmental Permits