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Town of Forestburgh and New York State Department of Environmental Conservation Region 3

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

PROJECT: Proposed Lost Lake Resort, Town of Forestburgh, Orange County

DISPUTING AGENCIES: Town of Forestburgh and New York State Department of Environmental Conservation Region 3

I have been asked to designate a lead agency to conduct the environmental review of the proposed Lost Lake Resort project, in the Town of Forestburgh, Sullivan County, under the New York State Environmental Quality Review Act [(SEQR), Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 617)]. This designation of the Town of Forestburgh Town Board (Town) is based on my finding that the Town possesses a greater breadth of governmental powers to investigate and avoid or mitigate impacts.

ACTION AND SITE

The proposed action is the proposal by Double Diamond, Inc. (Double Diamond) to create a large-scale destination resort in the Town of Forestburgh, Sullivan County. The Lost Lake Resort project would involve the construction of the following: an 18-hole championship golf course with amenities including clubhouse, inn, restaurant, conference center, spa, amenity village, swimming facilities, tennis facilities, and wilderness trails; 2,557 single family residences, 30 single family cottages, and 40 multi-family units; new private roads; a new central water supply from on-site wells; plus new central sewage treatment system. The project would be constructed on 2,091 acres of currently undeveloped, mostly forested land, of which the sponsor has stated 1,050 acres will be preserved as open space. Included in the open space are State and Federal wetlands, streams, lakes, trails, the golf course, parks, and buffers to conserve natural areas and native wildlife habitat; the open space lands are scattered throughout the property. The project site is located entirely within the Town of Forestburgh, approximately 32 miles south of the Village of Monticello and NYS Route 17 (future Interstate 86). The property can be reached by two county roads.

The project area is immediately east of the Neversink River Unique Area (Unique Area), and is in the general vicinity of the Neversink Highlands Priority Project Area as listed in the 2006 NYS Open Space Plan, Chapter VI ("Open Space Plan")1. The site contains approximately 266 acres of State wetlands, most of which are considered Class II, high value and generally productive. The site also contains numerous streams and tributaries, many of which are classified B and B(t), indicative of productive fisheries and recreational uses, and the 50+/- acre Lost Lake, also a recreational water and productive fishery.


REGULATORY SETTING

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. The following potentially involved agencies are expected to have approval or permitting authority for this project as it is currently proposed:

  • Double Diamond has asked the Town to re-zone the entire property from the existing rural residential zoning to Planned Development District (PDD).2 The PDD designation would be allowable under Town of Forestburgh Planned Development District Law of 2008 (Town of Forestburgh Local Law No. 3 of 2008 and codified as Article V of Chapter 85 of the Town of Forestburgh Town Code). The Town may also need to issue local highway access approvals.
  • NYS Department of Environmental Conservation (NYSDEC) jurisdictions include a NYS Pollutant Discharge System (SPDES) permit (ECL §17-0801 et seq.) for treated wastewater discharge; Public Water Supply permit (ECL §15-1501 et seq.) for water takings from proposed wells; Freshwater Wetlands permit(s) (ECL Art. 24) for disturbances to State-regulated wetlands and their 100-foot regulated adjacent areas; Protection of Waters permit(s) (ECL §15-0501 et seq.) for disturbances to the bed or banks of several State-regulated streams on the property; Water Quality Certifications (33 U.S.C. §1341 [Federal Water Pollution Control Act §401] and 6 NYCRR Part 608) for discharges of fill to the Navigable Waters of the United States (including wetlands less than 12.4 acres); SPDES Stormwater Pollution Prevention Plan ("SWPPP"; ECL Art. 17) for the entire development; and potential permitting related to endangered or threatened species (ECL Art. 11).
  • NYS Department of Health would have jurisdiction over the proposed water supply system, including production and distribution components.
  • Sullivan County Department of Public Works may need to issue county highway access permits.

The Delaware River Basin Commission (DRBC) will have to approve the water withdrawal for the proposed water supply, as well as the proposed wastewater treatment plant. DRBC has, however, been identified only as an interested agency under SEQR.

DISCUSSION

The disputing agencies are the Town and NYSDEC, through its Region 3 Office. No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617.6(b)(5)(v):

  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.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion

The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance. In this case, the responding agencies have identified significant impacts at the local as well as at regional or broader levels of impacts. The Town has argued that because the project site is entirely within the boundaries of Forestburgh, all impacts would be primarily local in nature. Local impacts from this project will include those related to intensity, density and scale of development not historically found in the area, as well as specific concerns such as traffic and adequacy of roads.

NYSDEC identified several broader potential impacts of this project. The water demand and estimated wastewater generation at full build-out could be as much as 1 million gallons per day. Since the DRBC will need to issue approvals for the proposed wastewater discharges and water supply withdrawals, there is inherently a regional and even inter-State aspect to water quality and quantity impacts. NYSDEC notes that there are records of threatened and endangered species (Bald Eagle, Timber Rattlesnake and Dwarf Wedge Mussel) in the vicinity of the proposed project, although no evidence is offered that any species inhabit or use the project site itself. NYSDEC suggests that intensive development in close proximity to the Neversink River State Unique Area could cause additional impacts on that State-owned area. NYSDEC also suggests that development of the proposed project could affect properties within the Neversink Highlands priority open space project area; however, the proposed resort is to the west of the Unique Area while the areas described in the Open Space Plan are to the north, east and south of the Unique Area. Finally, NYSDEC suggests that the remote location and apparently car-dependent, dispersed layout of the project could lead to disproportionately high greenhouse gas (GHG) generation.

Direct construction-related impacts such as heavy-vehicle traffic, land clearing, equipment operation, and noise are indeed primarily local. Some large, direct impacts of the use of the proposed resort, such as increased density of houses and other structures, traffic generation, and growth, are also local. Other potential impacts could have consequences of regional or broader importance and include traffic increases on main regional routes, GHG generation from induced traffic as well as facilities, habitat fragmentation, water use, and wastewater disposal. Impacts to wetlands could be of both local and regional significance, particularly as to effects on downstream water regimes. Should impacts to threatened or endangered species be identified, those would be of regional or Statewide significance. On balance, as often occurs with projects of this size, it is clear that there is a possibility that multiple potential impacts may affect resources of local as well as regional or Statewide importance. As such, I find no compelling distinction between the two disputing parties under the first criterion.

B. Second Criterion

The second criterion, breadth of authority to conduct the environmental review, favors the Town. There is a fundamental difference between the powers of the two agencies, which clearly relates to the nature and breadth of the inquiries and decision-making that each can undertake. The Town has been asked to change the zoning of the entire site from the existing rural residential zone to PDD. If approved, the PDD would give the Town the broadest ability to shape the project, including the authority to attach such conditions to its approval as would be necessary to implement any findings generated through the environmental impact statement (EIS) process. The Town's jurisdiction, through that PDD local law, includes extremely comprehensive, broad and detailed authority to approve, deny or require modifications of all components of this project, including density, distribution and design of development components; open space allocations and distribution; adequacy and safety of the proposed water supply and wastewater management systems; and road layouts.

NYSDEC has multiple areas of jurisdiction including protection of air and water resources; regulation of land uses in and adjoining wetlands; regulation of new water supplies and large wastewater discharges; and maintenance or preservation of valuable or unique habitat complexes. These individual authorities provide NYSDEC with the ability to condition its approvals to protect each resource. However, when compared to the Town's PDD-related zoning authority over all aspects of the entire project, the second criterion favors the Town.

C. Third Criterion

The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. A working relationship between the Town and its planning and environmental consultants was already established through development of the Town's PDD law. At the same time, the Town has the ability under both SEQR and its PDD law to assess fees to enable it to retain consultants to assist in the review of this project. Thus, the Town has demonstrated, through its established fee-driven consultant support system, that it has access to and the ability to work with technical consultants to assist it in conducting the necessary environmental review of the proposed Lost Lake project.

NYSDEC staff includes personnel with technical expertise and specialties related to numerous permitting programs. As a result, NYSDEC has the capacity to effectively address many potential impacts of the proposed project, including regional and wider impacts like accelerated greenhouse gas generation or habitat fragmentation. For those areas where NYSDEC does not have in-house expertise, such as land use and visual impact analysis, NYSDEC is able to contract with consultants for review assistance just as the Town is able to do. Since both disputing agencies possess or can contract for expertise to conduct the necessary environmental review, this third criterion provides no distinction between the two disputing agencies sufficient to change my conclusion based on the second criterion.

FINDING

I find that the Town of Forestburgh should serve as the lead agency for the environmental review of the proposed Lost Lake Resort based on the greater breadth of governmental powers provided through the authority inherent in the Town of Forestburgh's PDD. This designation in no way changes or diminishes the responsibilities or authority of the other involved and interested agencies with jurisdiction over the project.

The decision at hand is readily distinguishable from my recent lead agency decisions that also involved large-scale residential or resort projects, namely Town of Rosendale Planning Board v. NYS DEC R3, Commissioner's Decision, July 2, 2008 (Hudson River Valley Resort project, "HRVR") and Town of Mamakating Planning Board v. Town of Thompson Planning Board v. NYS DEC R3, Commissioner's Decision, December 5, 2007 (Kingwood project)3. In the case of the HRVR project, the property proposed for development was known to be occupied by multiple endangered or threatened species, and some specific development activities posed the potential for direct adverse impacts to the unique habitat components on which those endangered or threatened species rely. Further, the HRVR property itself was included within multiple priority project areas under the Open Space Plan. Additionally, the Town of Rosendale had not adopted any comprehensive local law or ordinance comparable to the Forestburgh PDD local law. In the case of the proposed Kingwood project, no local agency was vested with land use authority over the entire project area, which encompassed parts of three towns. Without such comprehensive authority, no entity other than NYSDEC would have been able to require development-wide alternatives or mitigation for project-wide impacts, such as accelerated GHG generation. Additionally, the presence of multiple State-regulated wetlands and waterbodies on the Kingwood project site provided the basis for the property's explicit inclusion within a priority project area in the Open Space Plan.

While designating the Town as lead agency, I must alert it to remain cognizant of all potential regional and Statewide impacts that have been identified during this lead agency decision dispute, or which may be identified during the course of the environmental review. Since the Town indicated in its filings that it proposes to require an EIS, the Town should actively involve those other agencies having jurisdiction over the project when developing the scope for the EIS and reviewing any submitted draft EIS for completeness. Early and regular consultation with other involved and interested agencies will enable the Town to better identify the full range of potential impacts of the project as well as to explore alternatives and mitigation to avoid or minimize those impacts. Further, such early consultation would enable the other agencies to specify those studies and data that will be needed to support their later SEQR Findings and jurisdictional decisions.

In particular, the Town should actively seek out NYSDEC staff expertise on such issues as water quality, quantity and availability; habitat, wildlife and endangered species; wetlands functions and protection; and stormwater management. NYSDEC input should be reflected in the scope and in the eventual EIS. Given the important role that the DRBC's water-related approvals may play in shaping this project, the Town should consult early and fully with DRBC, to specifically assist the Town in defining relevant and necessary studies to analyze water supply, use and conservation, and wastewater management impacts, as well as alternatives to reduce or manage those impacts. Additionally, the Town should actively seek the expertise and input of other relevant State, regional or local agencies while developing its EIS scope and reviewing the draft EIS. These should include the NYS Department of Transportation, the NYS Department of Health, the NYS Office of Parks, Recreation and Historic Preservation, the Sullivan County Planning Office, and the county and local highway authorities. Incorporation of all substantive issues raised by these other involved and interested agencies will help to ensure that the Town's SEQR process will result in all agencies being able to reach Findings and final decisions on the proposed Lost Lake Resort that will be protective of the environmental resources on and around the project location.

1The 2006 Open Space Conservation Plan is available at http://www.dec.ny.gov/lands/317.html on the Department of Environmental Conservation's website.

2The enabling authority for planned development districts (sometimes known as "planned unit developments") is in Town Law §261-c, which provides as follows: "A town legislative body is hereby authorized to enact, as part of its zoning local law or ordinance, procedures and requirements for the establishment and mapping of planned unit development zoning districts. Planned unit development district regulations are intended to provide for residential, commercial, industrial or other land uses, or a mix thereof, in which economies of scale, creative architectural or planning concepts and open space preservation may be achieved by a developer in furtherance of the town comprehensive plan and zoning local law or ordinance."

3Commissioner lead agency decisions are available at http://www.dec.ny.gov/permits/357.html on the DEC's website.

/s/

Alexander B. Grannis, Commissioner
Dated: 2/9/2009
Albany, New York

Distribution of Copies

Disputing Parties

James P. Galligan, Supervisor, Town of Forestburgh Town Board
Glen Plotsky, Esq. (attorney for T. of Forestburgh)
Region 3, NYS Department of Environmental Conservation
Attention: Willie Janeway, Regional Director

Applicant / Agencies

Dominic Cordisco, Esq (attorney for project sponsor)
Randy Grace, Double Diamond Companies (project sponsor)
Delaware River Basin Commission
NYS Department of Health
Sullivan County Division of Public Works
Region 3, NYS Department of Environmental Conservation
Attention: Margaret Duke, Regional Permit Administrator

Interested Parties

Assembly Member Aileen M. Gunther
Senator John J. Bonacic

New York State Department of Environmental Conservation

Lawrence H. Weintraub, Esq., Office of General Counsel
Betty Ann Hughes, Division of Environmental Permits


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