Comments on the Draft Environmental Impact Statement (DEIS)

Terravest Phase II and III Developments in the Town of Southeast.



Government Agencies

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October 18, 2002

George Rohrman
Town of Southeast Planning Board
67 Main Street
Brewster, NY 10509

Laurie Fricchione
Town of Southeast Planning Board
67 Main Street
Brewster, NY 10509

VIA Facsimile: (845) 279-8572 & U.S. Mail

Re: Comments on Terravest Corporate Park (Phases II and III) Draft Environmental Impact Statement

Dear Mr. Rohrman, Ms. Fricchione, and Members of the Board:

As one of the signatories to the 1997 New York City Watershed Agreement, and in keeping with our mission to safeguard the ecology and quality of life along the Hudson River and its tributaries in the New York City Watershed, Riverkeeper welcomes the opportunity to comment on the Terravest Corporate Park, Phases II and III (Terravest), Draft Environmental Impact Statement (DEIS).

Phases II and III of the Terravest development encompass some 139.1 acres of variable grade land surrounded by various existing land use, including areas used or zoned commercial or residential. See DEIS at 71. To be built as part of this current proposal are five commercial buildings totaling nearly half a million square feet (sf), a 72-unit single family senior housing development, and a 15-acre town park. See id. at 3. Among the nearby existing uses are Phase I of Terravest, a corporate park constructed in the 1970s which consists of seven commercial buildings and four undeveloped lots, and a five-building, 377,000 sf retail center called The Highlands. See id. at 3, 71.

Also in the vicinity of the proposed project are both the Middle Branch and Diverting Reservoirs, two of ten reservoirs in the Croton watershed system which serve as a drinking water source for New York City residents, 85% of Westchester County residents, and 15% of Putnam County residents. This collective supply provides up to 30% of the City's drinking water needs. On the site of the proposal are several wetland corridors and DEP watercourses which ultimately feed into these vital reservoirs.

Riverkeeper believes this project, as proposed, poses the risk of undue impact to the New York City watershed. Phases II and III of Terravest will create dozens of acres of new impervious surface, runoff from which will threaten the utility and viability of adjacent wetland areas, and ultimately the Middle Branch and Diverting Reservoir basins in which the proposed project lies. Through construction of stormwater quality and detention basins within designated wetland buffer areas, the project will also directly damage the ability of wetlands, dependent on these buffer areas, to perform their vital functions, which ultimately help protect the quality of the New York City drinking water system.

In addition to inadequately analyzing the true effects of the project on wetlands and wetland buffers, and the sufficiency of stormwater and wastewater control plans, the DEIS is also lacking in its discussion of cumulative impacts and alternatives. Riverkeeper respectfully urges the Planning Board to require the applicant to address the specific DEIS deficiencies outlined below, and ultimately, to reject the application in its current form.

1. Stormwater Management

As an initial matter, although the siting of this proposal within both the Middle Branch and Diverting Reservoir basins was referenced in the scoping document, nowhere in the DEIS is it explicitly mentioned - in either the Executive Summary, Project Description, Natural Resources, or Sanitary Sewage and Stormwater Management sections. The only indication this project is located within the sub-basins of two reservoirs supplying drinking water to millions of residents is by its location on broad overview maps, or in the DEIS's references to DEP's role in flagging watercourses or approving the stormwater and wastewater plans. See DEIS at 35, 108. The DEIS Scoping Document specifically asserted that the DEIS should "[d]escribe any impacts to adjacent waterbodies including…the Middle Branch Reservoir, and Diverting Reservoir." See DEIS, App. A at 285 (Scoping Document, at 8). The DEIS is devoid of such description. It also wholly ignores the ultimate potential impacts of runoff from the project to the Croton Falls Reservoir, to which the Middle Branch and Diverting Reservoirs flow.

In both the DEIS and the Stormwater Pollution Prevention Plan (SPPP) for Terravest, the applicant asserts that stormwater control on the site will not be a problem exacerbated by the addition of nearly a half million square feet of commercial buildings, 72 separate units of housing, a town park containing three ball fields, and all the attendant roads, parking, and driveways to what is currently an area of meadow, woods, and wooded wetlands. Indeed, the applicant's analysis purports to show that no new stormwater discharge points will be created by the project, and that there will be no increase in peak discharge from pre- to post-development. See DEIS at 139-141; SPPP at A2.

The applicant proposes to provide a total of 18 stormwater basins, in the form of both water quality basins and detention basins, to handle the runoff from the project. See SPPP at 10, 13-14. Of these eighteen, the project contemplates construction of 15 new stormwater basins, and transformation of three existing sediment basins. See id. These temporary sediment basins, which lie in a wetland buffer area on the western side of the Phase II portion of the site, will be enlarged and used permanently. See id. at 10. According to the DEIS, peak flow rates would be attenuated to less than pre-development rates by the installation of stormwater control basins. See DEIS at 141. Unfortunately, the need for stormwater control basins, many of them to be constructed within wetland buffer areas, is created by the large increase in impervious surface area.

Impervious Surface Area

Proposed to be built on the 46.6 acres of Phase II of Terravest are four commercial office/warehouse/light manufacturing buildings. The largest of these buildings would be 295,000 sf and collectively would total well over 400,000 square feet. Along with the buildings are planned parking areas to serve over 200 vehicles, as well as loading docks and outdoor storage for trailers. See id. at 26-27. On the five acres of Terra 9 (an undeveloped lot of Phase I), is to be a 36,000 sf office/warehouse building with parking for 49 vehicles. See id. at 26. Proposed on the 87.5 acres of Phase III are 72 separate units of housing, each with garages and/or outdoor driveway space for two vehicles, additional spaces for visitor parking, for a total of some 172-174 spaces. See id. at 31. Also on Phase III will be three sports fields with what appears to be over 100 additional parking spots. Serving the new development will be a series of roads and driveways, which, save for the emergency access road for the housing units, will be impervious paved surface. See id. at 31-32.

Together, the buildings, parking areas, and driveways will result in a vast amount of new impervious surface area. In the DEIS, the applicant projects this amount at at least 20 acres of new impervious surface within the 139.1 acre area, which, if correct, is nearly 15% of the total land area, and almost ¼ of the total area to be disturbed by the development. See id. at 121. Assuming the somewhat confusing text refers to total new impervious area, this seems to be somewhat of an underestimate. The nearly half-million square feet of commercial buildings would alone create approximately 11.5 acres of impervious roof area. Our rough calculation using figures from the Drainage Report shows the new fully impervious area will be at least 25 acres. See DEIS, Vol. 2, at A7-A30. However, there is no precise calculation or even anything more than a rough estimate of the total added impervious area clearly set forth in the DEIS, and there is no meaningful discussion or analysis of the effects of this expected increase. The applicant claims to "reduce overall disturbance" by planning for commercial lots 3 and 4 on T-2 to share parking. See DEIS at 3. However, this plan appears to actually add - by the applicant's calculations - 19 parking spots. See id. at 30. Other ways to reduce the amount of impervious surface - such as stacking commercial parking areas, modifying the planned boulevard entrance to the housing complex, or reducing any redundant outdoor parking areas in the housing complex - were not considered.

Impervious surfaces have several negative impacts on ecosystems. In addition to the impacts of increased levels of pollutants on water quality, increased runoff increases stream erosion, widens stream channels, induces eutrophication, reduces groundwater recharge, reduces tree cover and magnifies water temperature fluctuations, and degrades riparian and in-stream habitat. See Chester C. Arnold & C. James Gibbons, Impervious Surface Coverage: The Emergence of a Key Environmental Indicator, 62(2) JOURNAL OF THE AMERICAN PLANNING ASS'N 245 (1996). Although best management practices can reduce pollutant loadings to streams, it has been shown that stream degradation can occur in areas of impervious cover as low as 10%. Recent research indicates that watersheds are demonstrably and irreversibly degraded when as little as 10% of their surface area is covered by impervious surfaces.

The large increase in imperviousness will likely contribute vast amounts of stormwater runoff to a number of town-regulated wetland areas and DEP watercourses, which eventually feed into one of two nearby phosphorus-restricted reservoirs. The potential for damaging runoff is heightened by the existence of steep slopes on the property. In fact, nearly half the site consists of slopes greater than 15%, including fully ¼ of the site with slopes in excess of 25%. See id. at 123. Of course, the wetland and buffer areas on the site are found largely at the bottom of such slopes. These slopes are adjacent to much of the planned impervious construction, including both the upper and lower clusters of housing and their connecting road, the parking lots serving the ball fields, and the buildings and lots in Phase II. See DEIS at 288, Map 9-3 (slope analysis) and DEIS at 20, Map 1-5 (master plan). The problem of polluted runoff, which often contains levels of phosphorus, reaching two nearby reservoirs is exacerbated by the designation of those reservoirs as phosphorus-restricted.

Roads, driveways and rooftops reduce the infiltration capacity of previously pervious surfaces, facilitate the concentration and scouring of pollutants to surface waters, and accelerate stormwater runoff velocities. In addition, phosphorus-laden lawns and sports fields, while clearly not considered by the applicant in the impervious estimates, in fact have an imperviousness value of 9% and therefore contribute nearly 1/10 of their pollutant loadings to downgrade receiving waters. See Capiella and Brown, "Impervious Cover and Land Use in the Chesapeake Bay Watershed", Center for Watershed Protection, 2001. Particularly during significant rainstorms, or during snowmelt before spring thaw, precipitation collected on lawns typically becomes sheet runoff, transporting fertilizers and pesticide residues to a receiving water body. See id. Again, estimated calculation using the Drainage Report indicates at least 42 acres of semi-impervious lawn area. See DEIS, Vol. 2, at A7-A30. Degraded stormwater runoff from lawns surrounding the housing units could be a particular problem where those lawns could have a slope ration of up to 2:1. See DEIS at 125. The DEIS contains no analysis of realistic levels of pollutant loadings associated with residential lawns or the transformation of meadow in T-3 to lawn sports fields. The applicant should be requested to recalculate stormwater loadings in order to account for increased volumes and composition of stormwater associated with all lawn and sports field areas. A stormwater management plan should appropriately include, at a minimum, avoidance of fertilizers and pesticides. Indeed, the 40-odd acres of lawn area should be treated as net stormwater pollutant sources. Lawns associated with 72 housing units in two separate 'clusters' and three sports fields can be expected to contribute nutrient and chemical contamination in stormwater.

Due to the increase in water runoff quantity and degradation of runoff quality caused by impervious surfaces, we urge the Board to require the applicant to reduce total impervious surface area to be created by this project. We suggest this be accomplished by a reduction in the commercial square footage, the number of housing units, or the amount of paved parking area. At the least, the Board should call for reduction measures such as stacked parking, additional shared parking both in the commercial and housing areas, and less lawn area. The project's stormwater mitigation design cannot be permitted to allow significant rain or snowmelt events to transport contaminants to either the Middle Branch or Diverting Reservoirs and, ultimately, the New Croton Reservoir. The Terravest project should not be permitted to cause the Croton Falls Reservoir to exceed designated TMDLs for phosphorus or to impair its AA(T) rating.

Additional Water Quality Issues

The applicant's position that stormwater runoff will be mitigated - in fact, improved from pre-development conditions - ignores the qualitative aspects of the development's effect on stormwater runoff. As it stands, the SPPP proposes only the use of haybales and silt fences for protection of onsite wetlands. SPPP at 22. With the existing slopes on the project site and the proposed grading, wetlands protection should include, where practicable, placement of geotextile fabric on slopes to prevent erosion and enhance establishment of rye grass. In addition, the applicant proposes to monitor water quality in stormwater basins during summer to "minimize algae blooms." Id. at 27. It is unclear, however, how the applicant intends to mitigate or remediate excess phosphorus loadings in the basins, which are the source of algae blooms, once the phosphorus has entered the water. The SPPP contains a maintenance plan for the stormwater basins, see id., but does not address management of nutrient loading in detained water.

Although the applicant's proposed stormwater management practices provide for post-development peak flow rates at or below rates for pre-development conditions, a question remains concerning the quality of stormwater discharges under post-development conditions. For example, in the DEIS the applicant proposes that "[t]he development of the park utilizes existing stormwater discharge points (culvers, stormwater drainage systems, and channels). DEIS, Vol. 2 at A2. No new additional discharge points are created by development of the park." In the park and other areas where the applicant anticipates no peak flow rate increase, the Town should be able to assess changes in water quality even when peak flow rates and/or discharge points remain unchanged. When undeveloped land is cleared, landscaped, and subjected to fertilizer and pesticide application to create parkland, stormwater runoff from the developed site will contain a higher concentration of contaminants than runoff from the undeveloped site. Will all post-development runoff from the site be captured, treated and prevented from entering surface and groundwater supplies? If post-development runoff volumes are not greatly reduced from pre-development conditions, the resultant insults to water quality could be exacerbated despite the volume decreases. The applicant must address the issue of water quality as well as quantity under post-development conditions.

In addition to the effects of impervious and semi-impervious areas on stormwater quality discussed above, the DEIS also does not sufficiently address the water quality impacts of removing dozens of acres of woods and wooded wetlands. The 87+ acres of T-3, in particular, contain large amounts of hardwood woods and wooded wetlands. See DEIS at 25, 114 (Map #8-2). In total, the applicant proposes to disturb approximately 85 acres on site, and plant and seed 65 of those acres. See id. at 121. The applicant estimates that 37 acres of trees will be removed on T-3 for housing and the SSDA, see id. at 111, to be replaced by lawn, meadow, and 'detention basin' mix. See id. at 53-54 (T-3 Planting Plan, Map # 2-17, 2-18). Transforming 37 acres of woods - over half of the portion of T-3 to be used for housing and the SSDA - into fields, lawns, and meadows will undoubtedly affect the ability of the natural system to remove phosphorus and carbon, two of the biggest threats to the watershed. Unfortunately, the effects of removing swaths of forested areas - and effectively removing a natural pollutant 'cleansing' agent - have been ignored.

Thus far the applicant has identified only one definite tenant for Phase II of the Terravest development - Ace Endico, which has agreed to occupy the largest of the four lots on Phase II for a food processing warehouse. See DEIS at 27. In its analysis of both stormwater runoff and wastewater treatment, this DEIS wholly ignores the effects on the quality of runoff and wastewater from such an operation. Although the nature of Ace Endico's proposed operations have not been adequately described, it can be presumed that a food warehousing facility could have food processing waste, spoiled food waste, and chemical treatment or cleaning materials all flowing into the stormwater runoff and/or wastewater system. None of these potential, if not likely, effects have been considered as part of the DEIS.

Finally, the applicant has not located the stormwater control basins to the extent necessary to minimize erosion, particularly given the incidence of slopes on site, and to eliminate infringement on wetland buffer areas, as described in the following section.

2. Wetland / Wetland Buffer Disturbance

The Terravest project is located in the Middle Branch and Diverting Reservoir watersheds, and contains three wetlands corridors totaling 13.39+ acres of wetland with a 100' buffer around each. See DEIS at 108-09. The applicant estimates that approximately 0.04+ acres of wetland and 10+ acres of wetland buffer will be disturbed by the proposed site plans. See id. at 109. Disturbance will be caused by expansion or new creation of stormwater basins, water source wells for the senior housing units, a portion of the ball fields, and a portion of the parking areas serving the park. See id. at 4.

T-2 contains 7.1+ acres of wetland along the west side of the site, and the project foresees disturbance to the wetland and the wetland buffer areas. See DEIS at 108-09. There are 3 existing temporary sediment basins that will be enlarged and maintained as permanent stormwater detention and water quality basins. See id. at 108. These 3 basins (T2-WQB4, T2-WQB3, T2-WQB5) are within the wetland buffer area. See id. at 108, 115, 152. Applicants also propose to install a plunge pool and a bypass pipe to assist discharge of these basins, which will cause a disturbance of 0.04+ acres of wetland. See id. at 3, 109. Buffer disturbance will also be cause by installation of manholes, utilities and a maintenance drive. See id. at 109, 115.

In T-3, the applicant proposes to build a town park and a senior housing facility. T-3 contains 6.29+ acres of wetlands, the majority of which lies in the central wetlands corridor, with smaller portions in the southwest corner and along the southeast side of the site. See DEIS at 108. Here, the wetland buffers will be disturbed by installation of two new water quality basins (T3-WBQ3A, T3-WBQ3B), portions of the ball fields, a parking area, maintenance and emergency drives, and Town Park restrooms and concession stand. See DEIS at 109, 115, 117, 152. The applicant contends that the water quality basins appurtenant to the town park "must be on wetland side of fields" because of the change of grade across the site. See DEIS at 109. Of course, it was the applicant who re-graded the site, thus making the ultimate location of the basins "necessary."

In addition to the Town Park, T-3 will contain a senior housing facility and WWTP, a stormwater maze, and 3 new water quality and quantity basins (T3-WQB4, T3-WQB5, T3-DB2B), and new wells are planned to be placed in the wetland buffer. See DEIS at 4, 110, 116, 152. Further disturbance to the buffer area will be caused by parts of the access road, emergency access drive, utilities and slopes. See id.

In an attempt to mitigate impacts to the wetlands and wetland buffers, the applicant proposes certain temporary measures to control erosion and other land disturbance during construction, and attempts to address the issue of water quality. However, these mitigation measures are feeble at best, as is evidenced by the fact that only two pages of the DEIS address identification of wetlands and buffer impacts and possible mitigation measures. See id. at 108-10. The Board should prohibit all disturbances to the wetland and buffer areas.

To protect wetlands buffer areas, the applicant asserts merely that "[w]etland buffer disturbance should be limited to only that required" - a hollow protection measure if there ever was one. See SPPP at 22. The applicant suggests natural vegetation be left in place "to the extent practicable," and that habitat planting, erosion control, and prompt stabilization and seeding will be used to mitigate the disturbance. See DEIS at 110. As for the wetland itself, disturbance will be monitored, existing trees will be maintained, silt fence lines will be installed to prohibit access to the remainder of the wetlands, and wetland soils will be kept in place and reseeded to assist revegetation. See id. at 110. It should be noted that the DEIS does not account for who would be responsible for this monitoring and maintenance.

Thus, it seems that the applicant's mitigation measures rely mainly on maintaining existing vegetation and reseeding, and creation of water detention and water quality basins. These measures, however, will not be sufficient to replicate the beneficial functions performed by the wetlands and wetland buffer areas. Town regulations require a 100' buffer around all wetlands, and the buffer cannot perform its essential functions if it is disturbed by construction activities and largely covered by impermeable surfaces. In effect, there is no real mitigation plan. Implementation of a stormwater management plan is not a substitute for actual mitigation, especially where 8 of the 17 stormwater basins will be located in the buffer areas. See id. at 115-17, 152.

Wetlands perform valuable water quality functions including nutrient removal and transformation, shoreline and bank stabilization, floodflow alteration, groundwater recharge, production export, aquatic diversity and abundance, and wildlife diversity and abundance. But, wetlands cannot perform these functions instantaneously and buffers are a necessary intermediary area. Water quality benefits of buffer zones include reduction of thermal impacts (shade), nutrient uptake, infiltration and overbank flood control. Siting detention basins or other structural best management practices (BMPs) within natural buffer areas displaces specific buffer functions and may intercept surface or groundwater flow when soils are cut and graded for installation. Groundwater interception can lead to erosion; removal of natural vegetation reduces nutrient uptake and increases thermal impacts; artificial structural practices interrupt wildlife habitat corridors. Although a detention basin may compromise only a percentage of the total buffer area, it nevertheless constitutes another incremental degradation along with increased contaminant loading from non-point sources and the potential for point-source contamination of surface waters and groundwater aquifers. At no point does the DEIS address or study these potential impacts in any comprehensive manner.

In sum, the applicant has not provided an adequate description of wetland and buffer impact. As noted above, text descriptions were brief, and any meaningful data had to be gleaned from maps or charts found throughout other portions of the DEIS, not in Chapter 8, which was devoted to natural resources, including wetlands. The Board should not allow any disturbance to the wetland or critical buffer areas, and the site-plans should be revised to remove impervious surfaces and other disruptive activity from these areas.

3. Wastewater Treatment

In general, the narrative in the DEIS and the Sanitary Sewage Disposal Report (SSDR) (produced as part of the SPPP volume) does not clearly describe the wastewater treatment proposal in detail, in accordance with SEQRA requirements. See 6 NYCRR § 617.9(b)(2). For example, in the DEIS section on wastewater treatment, the applicant refers to the planned treatment plant and accompanying subsurface discharge as a mitigation measure to address the impacts of wastewater generation. See DEIS at 132-38. It does not, however, adequately and clearly discuss the impacts of the plant and SSDA themselves. The wastewater treatment plans contain a single schematic of the system, a large overview map, and some handwritten calculations, see DEIS at 151 (Map 10-1A), but no accompanying narrative description. In fact, the entire narrative discussion of the sewage treatment plans takes up some five pages. See SSDR at 28-33. Under the heading 'Wastewater Treatment Plant' is the single line: "A 52,000± gpd WWTP is proposed for the project." See SPPP at 34.

The DEIS and SSDR reveal that the applicant proposes to construct a wastewater treatment plant in the T-3 area of the site to serve all of the wastewater generated on site. The WWTP will be accompanied by two subsurface disposal areas. This plant, designed to handle up to 52,000 gallons per day (gpd), will be the destination for wastewater generated by all the commercial buildings, the 72 housing units, and the facilities at the town park. See SSDR at 28. The location for the WWTP and subsurface disposal areas was chosen after a series of soil tests and groundwater analyses essentially revealed there were no other suitable locations on the site. See id. at 30-33.

Project permeability tests apparently indicate this selected area can handle 52,000 gpd of treated effluent, which is remarkably (conveniently?) close to the projected generated load of 51,800. See SPPP at 30, 33. There is no discussion in the Sewage Disposal Report of contingency for overflow, save for a 50 percent reserve disposal field shown in the WWTP process flow diagram. See DEIS at 151. The total projected load includes a value for T-1 contingency in the flow calculation chart, allocated for existing and future development in Phase I. See id. at 138. There is no discussion of how this value was calculated, but it does allow the total flow to fit neatly just below the 52,000 gpd maximum. See SSDR at 30, DEIS at 134 (Figure 10-1). Because, contrary to the goals set in the scoping document, the existing wastewater conditions of Phase I are not discussed in the DEIS, it is difficult to ascertain whether the T-1 contingency figures are realistic. In the SSDR flow estimates, there also does not seem to be consideration for overflow from Phases II and III, which may be particularly troubling given the flow estimates assume an unexplained, and possibly optimistic, 20% reduction for use of 'water saving fixtures'. See SSDR at 30. The narrative contains absolutely no discussion of from where the estimated flow rates for each type of use (commercial, residential, and park) are derived, nor any description of this proposed use of 'water saving fixtures' or how they would achieve a 20% reduction in wastewater flow.

Discrepancies exist in the Wastewater Flow Calculations in the applicant's SSDR. See Wastewater Flow Calculation, SSDR at 30. DEC design flow standards for WWTPs require an expected hydraulic loading rate of 400 gpd for 3-bedroom apartments or homes. See NYSDEC, Design Standards For Wastewater Treatment Works (1988), 11, 12. The applicant proposes construction of 72 3-bedroom senior housing units with a projected wastewater flow of only 300 gpd. See SSDR at 29. Therefore, the applicant's total projected flow rate for the housing units (21,600 gpd) is underestimated by 100 gpd x 72 units = 7,200 gpd. Because the capacity of the proposed WWTP is 52,000 gpd and the applicant's projected flow rate is 51,800 gpd, this 7,200 gpd discrepancy, even with a 20% reduction for water saving fixtures, increases the projected flow rate to 57,560 gpd, or 5,560 gpd above the WTTP's capacity.

The applicant proposes to construct 454,000 square feet of commercial office space. See id. at 28. DEC design flow standards for WWTPs require an expected hydraulic loading rate of 0.1 gpd per square foot of office space, or 45,400 in the instant case. See supra note 2, at 13. A 20% reduction for water saving fixtures results in a net flow rate of 36,320 gpd for the proposed commercial space. Subtracting the corrected residential flow rate of 23,040 gpd from the WWTP capacity flow of 52,000 gpd leaves only 28,960 gpd for the commercial space, resulting in 7,360 gpd excess flow above plant capacity. The applicant must demonstrate how it derived the wastewater flow calculations so the Town may ascertain whether the proposed disposal field can assimilate the true volume of wastewater the WWTP will generate.

It appears that some portion of the plant, the connecting gravity sewers and pump facilities, and of course the SSTA, would be located underground. See DEIS at 137-38. However, the DEIS contains little discussion of the blasting or excavation required to construct such underground facilities, other than the general discussion in the 'Construction Impacts' section. Specific information is necessary in order to ascertain the geological stability of the site, as well as to determine any potential for groundwater contamination from either the construction or the operation of the WWTP, particularly where much of the site, and specifically the areas affected by the plant, contain intermittent steep and very steep slopes. The geologic analysis in the DEIS is limited to the capacity of soils and groundwater to handle treated effluent.

Related to a previous development proposal, a State Pollution Discharge Elimination System permit was issued for the T-2 portion of the site to cover 40,000 gpd of wastewater using a subsurface treatment system. See DEIS at 132. The applicant intends to use a modified version of this permit for the current proposal. See id. at 138. Assuming such a modification is granted, there is no assurance the plant here will comply with its conditions, no discussion in the DEIS of monitoring or enforcement techniques. As a related matter, there is no discussion in the DEIS of the projected life span of this plant or the intended operator. These are essential factors to consider in analyzing effectiveness of the plant and the operator's compliance with the permit.

The equipment and levels of treatment described by the applicant appear to be acceptable; indeed, we are satisfied that the applicant has opted to provide tertiary treatment utilizing ultraviolet technology rather than high doses of chlorine, as required for a system using subsurface disposal. We would suggest that the applicant make whatever revisions are required to bring phosphorus effluent levels to 0.5 mg/l or lower. This standard is required by the Watershed Regulations (§ 18-36(a)(8)) and is particularly important where the project and supporting WWTP is to be located within the basin of phosphorus-limited reservoirs.

4. Alternatives

SEQRA mandates that agencies shall "choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact process." ECL § 8-0109(1). The statute requires that an EIS include a "detailed statement" to "describe the proposed action and reasonable alternatives to the action" to aid in making the "decision whether or not to undertake or approve … action." Id. § 8-0109(2),(4).

Chapter 16 of the Terravest DEIS is unacceptable for three reasons:

1) the range of alternatives discussed is inadequate;
2) the discussion does not include a no build no-action alternative, or a future no-action discussion as required by regulations; and
3) the discussion is not detailed or analytically thorough enough, and contains errors.

As such, the discussion of alternatives in the DEIS fails to provide clear and meaningful choices for informed public comment and agency decision-making.

The Range of Alternatives Discussed is Inadequate

The proposal presented in the DEIS is the continuation of development of an existing corporate park. The project is described as consisting of six parcels of land totaling 139.1 acres. Development of T-9, one parcel, will consist of 36,000 square feet (sf) of office/warehouse space. Development of T-2, containing 4 parcels, will consist of office/warehouse/light manufacturing space of 295,000 sf, 16,000 sf, 64,000 sf, and 43,000 sf. T-3, the last parcel, will contain a Town Park and 72 units of detached single family senior housing units.

Chapter 16 discusses four alternatives to this proposal: (1) a no-action alternative, which provides for construction of projects which have existing approval: the extension of International Boulevard and the construction of office/warehouse/light manufacturing buildings on T-2; (2) a single user at T-2, consisting of a 500,000 sf office/warehouse; (3) an 80,000 sf commercial building instead of the Town Park; and (4) commercial use on T-3 instead of senior housing, consisting of option (A), two buildings totaling 109,200 sf, (B), one 90,000 sf commercial building in the lower area, or (C), a 45,000 sf commercial building on the upper area. Broken down, the alternatives considered consist of the following combinations of commercial space, park, and senior housing:

Table 1 - Break-Down of Alternatives

Proposed Project 454,000 sf + park + housing
Alternative 1 418,000 sf, no park or housing
Alternative 2 500,000 sf + park + housing
Alternative 3 534,000 sf + housing, no park
Alternative 4A (assuming figure of 109,200 sf and construction on both lower and upper areas) 608,200 sf + park, no housing
Alternative 4B (assuming construction on both lower and upper areas) 589,000 sf + park, no housing

Recall that as the lead agency, your ultimate findings must "certify that consistent with social, economic, and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable." 6 NYCRR § 617.11(d)(5). Accordingly, "[i]t is not necessary that every possible alternative be thoroughly explored. The only requirement is that information permitting a reasoned choice be considered." Natural Resources Defense Council v. City of New York, 446 N.Y.S.2d 871, 873 (Sup. Ct. 1982). "The purpose of requiring inclusion of reasonable alternatives to a proposed project is to aid the public and governmental bodies in assessing the relative costs and benefits of the proposal. To be meaningful, such an assessment must be based on an awareness of all reasonable options other than the proposed action." Webster Assocs. v. Town of Webster, 59 N.Y.2d 220, 228 (1983). As can be seen from the above chart, the alternatives considered in the DEIS are merely permutations of the same proposed project, not the presentation of a "reasonable range" of alternatives necessary for informed decision-making, with the goal of minimizing environmental impacts.

In addition, three of the four options remove either or both of the senior housing or the town park. In its statement of Project Need and Purpose, the Applicant describes senior housing and town recreation land as "significant needs of the community." DEIS at 36. These benefits are the kinds of social considerations to be taken into account when choosing alternatives. However, in the range of options considered, the one with the smallest amount of commercial space - which might produce the least disruption, traffic, and impervious surface from its construction - is the one which provides none of these "significant needs of the community." Thus, the limited range of alternatives pits environmental concerns against social concerns, rather than fostering a balancing of the two.

The regulations suggest that the range of alternatives may include: "alternative (a) sites; (b) technology; (c) scale or magnitude; (d) design; (e) timing; (f) use; and (g) types of action." 6 NYCRR § 617.9(b)(5)(v). Although the range of alternatives will likely reflect the objectives and capabilities of an applicant, here the applicant has failed to take into consideration the above suggestions for developing an adequate range of alternatives. Most critically, the applicant should be required to use better site design principles that can reduce the impact of the project, which in all of its permutations includes huge amounts of impervious surface area from buildings and parking lots. The documented benefits of properly implemented better site design techniques include the following: protecting local streams, lakes, wetlands, estuaries, forests, and habitats, reducing stormwater pollutants, reducing soil erosion during construction, reducing development and construction costs, increasing local property values and tax revenue, encouraging pedestrian-friendly neighborhoods and safer residential streets, promoting compliance with wetland and other resource protection regulations, creating more aesthetic and naturally attractive landscapes, incorporating neighborhood designs that provide a sense of community, and increasing urban wildlife habitats through preservation of natural areas.

The Discussion Does Not Include a No Build No-Action Alternative, or a Future No-Action Discussion as Required by Regulations

The range of alternatives considered must include the no action alternative. See 6 NYCRR § 617.9(b)(5)(v). There are two theories of what constitutes 'no action': no construction at all, or construction only of what is authorized by zoning and prior approvals. See Gerrard at §5.14[2][b]. The DEIS does consider the latter type of no-action alternative. However, "[f]or private actions, the law is unsettled, and a prudent project proponent may wish to describe both the no build and as-of-right alternatives." Id. at 5-148.5. The no build no-action alternative should be analyzed to form a full range of alternatives. "It is readily apparent that the no action alternative is not a reasonable objective of a private project sponsor. Yet, the effects of the no action or no-build alternative are important for assessing the severity of environmental impacts as well as for evaluating social, economic, and other essential considerations." Id. (quoting Environmental Impact Assessment Committee, Environmental Law Section, N.Y. St. Bar Ass'n, Comments of Proposed Revisions to SEQRA Regulations, 6 NYCRR Part 617, May 17, 1985, at 64-5).

In addition, it is explicitly required by regulation that "[t]he no action alternative discussion should evaluate the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the proposed action." 6 NYCRR § 617.9(b)(5)(v). This means the "EIS preparer must consider the capability of a site to environmentally improve, recover, or allow for restoration and remediation in the absence of the proposed project." Gerrard at §5.14[2][b]. The applicant here has completely failed to include such an analysis, for either a no build or an as-of-right no action alternative, in its discussion.

The Discussion is Neither Detailed nor Analytically Thorough, and Contains Errors

"The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of alternatives discussed." 6 NYCRR § 617.9(b)(5)(v). Furthermore, "EIS's must be clearly and concisely written in plain language that can be read and understood by the public." Id. § 617.9(b)(2). The discussion of alternatives here fails in both respects.

First, each alternative has received only cursory explanation in just a few sentences of how the alternative may differ from the proposed project. The discussion fails to include any specific economic analysis, and consistently mentions only water usage, sewage disposal, and traffic considerations in vague terms. The amount of impervious surface - of particular importance for a project proposed in the New York City drinking watershed - is only addressed in the comparison chart, in acreage either greater, less, or equal to the proposed project, with no discussion of the effect of the differences. "The degree of detail with which each alternative must be discussed will, of course, vary with the circumstances and nature of each proposal." Webster, 59 N.Y.2d at 228. In this case, the proposed project is vast, with numerous potential impacts, as evidenced by a 2,000+ page DEIS. The dedication of but a few of these pages to a discussion of alternatives, which is at the heart of the SEQRA mandate to mitigate adverse environmental impacts through reasoned and informed decision-making, is grossly inadequate.

In addition, the alternatives discussion contains errors and is ambiguous. First, square footage of commercial space in T-2 is reported in the DEIS as both 454,000 sf and 490,000 sf. Second, the first option for commercial uses on senior housing property cites 109,200 sf of commercial space in the lower area in the text, and 104,200 sf in the table. Third, as mentioned above, it is unclear whether in the fourth alternative building is contemplated on both the upper and lower levels, or one or the other.

Lastly, the comparison chart in Table 16-1 is not useful as an analytical tool. Instead of summing the total square footage of commercial space that would be built under each alternative, it only sets forth the square footage of that part of the alternative that differs from the proposed project. For example, the third alternative of commercial use at the town park is listed as 80,000 square feet, when there is actually 534,000 sf of commercial space in the alternative as a whole. See Table 1, supra. A more useful comparison chart would list the total square footage of office space for each alternative, and also set out the total parking spaces, traffic impacts, sewage flow, sewage disposal, area of disturbance, and impervious surface area for each alternative, rather than only the deviation from the proposed project. This would allow for easier comparison between individual alternatives and between the project as proposed and each individual alternative.

5. Growth-Inducing and Cumulative Impacts

The Growth Inducing section of the DEIS is wholly inadequate. First, common sense alone dictates that a double-spaced, one-half page of unsupported conclusory statements for a nearly 500,000 square foot project is inadequate. Second, SEQRA requires that an EIS contain a detailed discussion of "the growth-inducing aspects of the proposed action, where applicable and significant." ECL § 8-0109(2)(g). See also 6 NYCRR § 617.9(b)(5)(iii). The limited discussion in this DEIS certainly does not satisfy that requirement.

SEQRA requires that an applicant examine "reasonably related short-term and long-term impacts, cumulative impacts, and other associated environmental impacts." 6 NYCRR § 617.9(b)(5)(iii)(a). A well-respected treatise on SEQRA discusses the requirement for cumulative analysis and, based on review of five appellate court decisions, has formulated a three part test to determine what degree of analysis is necessary:

1. The projects will have significant common impacts;
2. The projects spring from, or are included in, a common plan and policy; and
3. The projects are specifically identified.

See Gerrard at §5.10[4][c].

It is important to note that joint ownership of all the properties involved is not a prerequisite for cumulative SEQRA review. See Save the Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193 (1987). There must only be some nexus between the proposed action and other actions which create the common impacts. This nexus may take the form of a cause-and-effect relationship, a common applicant, or a common legislative plan or action. While it is not enough that the actions occur simultaneously, see Gerrard at §5.10[4][c], local governments have the discretion to require an applicant to consider the impacts of other planned or occurring developments.

Due to a cause-and-effect relationship, commercial space at the proposed location could induce secondary growth, including subdivisions, strip malls, supermarkets, fast-food restaurants, and other services in Southeast and other parts of the Croton Watershed. The resulting sprawl would bring an enlargement of impervious surface area that would increase non-point source pollutant loading of surface waters in the Middle Branch watershed basin. The applicant's DEIS completely glosses over this cause/effect relationship. The DEIS states: "[t]he proposed project may generate both direct and indirect growth. Indirect growth may include the need for additional services at Terravest or nearby properties to provide amenities to the senior housing at T-3. The location of some businesses may move to better serve the traffic going to the Town Park. Additional housing is not expected. Nearby commercial properties may experience new development pressure due to on-going development of Terravest Park." DEIS at 272. Yet, the applicant fails to include any assessment of these potential impacts; rather, the applicant merely asserts that there may or may not be some impacts. This is in contravention of the intent of SEQRA, which notes:

An EIS must assemble relevant and material facts upon which an agency's decision is to be made. It must analyze the significant adverse impacts and evaluate all reasonable alternatives. EISs must be analytical and not encyclopedic. The lead agency and other involved agencies must cooperate with project sponsors who are preparing EISs by making available to them information contained in their files relevant to the EIS.

6 NYCRR §617.9(b)(1).

Moreover, the Environmental Conservation Law notes that the purpose of an EIS is "to provide a detailed statement…." ECL § 8-0109(2). See also id. § 8-0105(7) (noting that an EIS is a detailed statement). The New York State Court of Appeals has noted that "[t]he degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal." Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417 (1986). As a development to contain nearly one-half million square feet of commercial space and 72 units of separate housing, the Terravest proposal clearly poses severe environmental impacts that must be discussed in great detail. Regardless of the circumstances and nature of the proposal, courts "review the record to determine whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination." Id. See also Aldrich v. Pattison, 107 A.D.2d 258, 265 (1985). Instead of undertaking this degree of analysis, the applicant's blanket assertions on growth-inducing and cumulative impacts in the DEIS are so devoid of relevant and material facts and support that they practically render this comment exercise laughable. There exists no basis on which the Honorable Planning Board can base its decision.

In order to properly assess the impacts of secondary growth potentially induced by the proposed project, the applicant should model build-out projections for developable portions of the surrounding community. Once build-out projections for these access communities are modeled, water quality impacts can be assessed and appropriate mitigation measures considered. These projections, water quality impacts, and mitigation measures then must be discussed and supported in great detail, rather than with mere conclusory statements.


As the decision-making agency, the Planning Board must comply with SEQRA by taking a "hard look" at the "relevant areas of environmental concern and [taking] those concerns into account 'to the fullest extent possible.'" Glen Head - Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay, 453 N.Y.S.2d 732 (App. Div. 1982). In considering the adequacy of an environmental impact statement, "[t]he test of its sufficiency is whether the EIS was compiled with objective good faith and whether the resulting statement would permit a decision maker to fully consider and balance the environmental factors." Webster Assocs. v. Town of Webster, 447 N.Y.S.2d 401, 414 (N.Y. Sup. Ct. 1981), rev'd on other grounds, 59 N.Y.2d 220 (1983). As it stands, this DEIS is clearly insufficient to provide the Board with the true environmental impacts of the proposal, and the range and detail of alternatives necessary to take the required "hard look" and make reasoned decisions under SEQRA. For this reason, the Board should reject the application as proposed. The Board should require the applicant to address the numerous deficiencies in the DEIS and to provide fuller analysis that is clear and error-free. From the information gleaned from this DEIS, it appears the applicant must drastically revise the proposal to ensure the quality of nearby drinking water systems - and hence the safety of millions of New Yorkers - is ensured to the full extent. Until and unless this is achieved, the proposal cannot go forward.

Riverkeeper appreciates this opportunity to submit comments to the Board. We anticipate the Board's continued deliberate and informed consideration of this proposal, and all others before it. If I may provide any clarification regarding the above comments, or additional information, please contact me at the address provided above.

Respectfully submitted,

Christopher M. Wilde
Watershed Analyst

Cc: Terri-Ann P. Hahn
104 West Street
Simsbury, CT 06070

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