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Linden Associates - Summary Hearing Report, December 26, 1996

Summary Hearing Report, December 26, 1996

50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application

- by -

Linden Associates for a 401 Water Quality Certification pursuant to Environmental Conservation Law of the State of New York (ECL) Article 15, Title 5; Title 6 of the Official Compilation of the Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 608, and the federal Clean Water Act

DEC Application No. 8-2642-116/1


- by -

Daniel P. O'Connell
Administrative Law Judge
December 19, 1996


As provided by a Notice of Public Hearing dated October 30, 1996, Administrative Law Judge (ALJ) Daniel P. O'Connell presided over a legislative public hearing at the Penfield Town Hall on December 2, 1996 at 8:00 P.M. The purpose of the hearing was to receive comments from the general public about the pending request before the Region 8 Staff of the NYS Department of Environmental Conservation (the Department) for a 401 Water Quality Certification by Linden Associates. If issued, the Water Quality Certification required by ECL Article 15, 6 NYCRR Part 608, and the federal Clean Water Act would allow the Linden Associates to construct a stormwater detention facility as part of the development of a 20.3 acre light industrial park. The record of this proceeding closed on December 9, 1996 upon receipt of the affidavits of publication.

Brief Project Description and Background

The Applicant proposes to disturb 3.08 acres of federally regulated freshwater wetlands to construct a stormwater detention facility as part of the development of a 20.3 acre light industrial park. The project site is located at 412 Linden Avenue in the Towns of Penfield and Brighton, Monroe County.

To obtain a permit from the US Army Corps of Engineers, the Applicant must receive a 401 Water Quality Certification from the NYS Department of Environmental Conservation. Potential water quality impacts from the proposed development include warm water discharges to the salmonid fishery in adjacent Allens Creek during storm events. To mitigate this potential water quality impact, the Applicant has increased the depth of the stormwater detention facility and would use bottom draw off.

To meet the criteria for the federal wetlands permit, the Applicant has also proposed offsite mitigation. The Applicant would fund work at a facility operated by the NYS Office of Parks Recreation, and Historic Preservation and located in the Office's Genesee region.

With respect to the environmental review required by ECL Article 8 and 6 NYCRR Part 617 [effective June 1, 1987 to December 31, 1995], the Town of Penfield Planning board was the lead agency, and issues a positive declaration on March 23, 1995. The Applicant prepared a Draft Environmental Impact Statement (DEIS) for public review, and the Planning Board issued a Final EIS on August 8, 1996 with a Findings Statement on August 28, 1996. Before making a final decision about whether to issue the requested Water Quality Certification, the Department, as an involved agency, must also file a separate Findings Statement as required by 617.9(c).

The Legislative Hearing

The Applicant published the Notice of Public Hearing in the Brighton-Pittsford Post on November 6, 1996 and in the Penfield Post-Republican on November 7, 1996. The Office of Hearings and Mediation Services published the Notice in the Environmental Notice Bulletin on November 6, 1996. In addition, the Office of Hearings and Mediation Services sent copies of the Notice of local public officials, and to individuals who had filed comments on the application previously.

About 150 people attended the legislative hearing. There were 25 speakers. Many people handed the ALJ written comments at the hearing. Others sent their comments to the Office of Hearings and Mediation Services.

The speakers included the Applicant's consulting engineers, the Region 8 Department Staff, officials from the Towns of Penfield and Brighton, as well as local residents from both Towns. Except for the Applicant's representative and the Commissioner of Public Works from the Town of Penfield, all other speakers opposed the Project.

The Department Staff tentatively supports issuance of the Water Quality Certification with special conditions. Before making a final determination, however, the Department Staff wants to review and consider all comments.

The comments made at the public hearing and filed in writing focus on impacts to the federally regulated wetlands, as well as impacts to the water quality of Allens Creek. Although there are no state regulated wetlands, many people are concerned about how the federally regulated wetlands would be impacted. According to the proposal, some would be filled. Speakers stated that the functions of the remaining federally regulated wetlands on the Site would be changed. There is strong opposition to the offsite mitigation proposed by the Applicant because there would be no benefit to the Allens Creek/Corbetts Glen ecosystem. Many of the people who filed comments want any mitigation required for the federal wetland permit to be done onsite, rather than offsite.

Members of the public expressed concern about the Project's impacts on the fish species that now inhabit Allens Creek. Representatives from the Allens Creek/Corbetts Glen Preservation Group (the Preservation Group) explained how the fish population in the creek has changed over time. With the construction of a municipal sewage treatment plant on the Site, fish populations declined and eventually disappeared. After the sewage treatment plant was dismantled in the late 1970's, however, the water quality of Allens Creek improved through the 1980's and fish, including various trout species, returned.

The Preservation Group wants the Applicant to prepare a Supplemental Environmental Impact Statement (SEIS) to address the following. First, the Preservation Group wants the Applicant to conduct a stream survey of the fish and other aquatic biota in Allens Creek. Second, if the stream survey shows that fish can reproduce in Allens Creek, the Preservation Group wants the SEIS to contain a discussion about upgrading the current classification of Allens Creek from B(T) to B(TS). Finally, the Preservation Group wants the Applicant to provide data in the SEIS about the water temperature in Allens Creek during July and August because trout species require water temperatures below 70F to survive. According to the Preservation Group, this additional information is necessary to determine whether the proposed detention facility would adequately mitigate any potentially adverse impacts to the water quality of Allens Creek.

Other comments focused on the adverse effects of chemical pollutants on Allens Creek. Many argued that large amounts of chloride ions from de-icing chemicals would accumulate in the detention basin in the late winter and spring as the banks of snow cleared from the parking lot melt. Alternatively, some said that the chloride ions and other chemical pollutants might bypass the detention basin in the winter when it is frozen.

Based on data from the USGS gauging station in Allens Creek near the Site, there are wide fluctuations in the flow rate and volume. As a result, some expressed concern about the amount of runoff from the Site, and whether the proposed stormwater management facility is sized properly.

Officials from the Town of Brighton stated that the proposal does not meet local stormwater management criteria, and that the Town of Penfield did not coordinate the local review of this proposal well. According to Brighton officials, the Monroe County Environmental Management Council has designated Corbetts Glen, which is located downstream from the Site, a critical environmental area. As a result, Brighton officials called on the Department to conduct a thorough review of the proposal to determine whether the Project would adversely impact Corbetts Glen.

Those who opposed the Project called on the Department, as an involved SEQR agency, to require additional information from the Applicant to address the concerns identified above, and to enable the Department to make the necessary findings required by SEQR. Many called for an adjudicatory hearing as a way to develop a record about these concerns.


The file in this matter, which includes the transcript of the legislative public hearing as well as the written comments received by the Office of Hearings and Mediation Services, is returned to the Region 8 Staff in Avon, NY for appropriate disposition.

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