Comments of the Office of Watershed Inspector General
February 18, 2005

Thank you for providing this opportunity to submit comments concerning the appropriate scope and detail of the draft environmental impact statement (ADEIS@) with respect to the proposed Patterson Crossing Retail Center project (the AProject@).

The proposed Project is located entirely within the New York City Watershed (“Watershed”), an area that comprises only 4.2% of New York’s lands yet serves as the source of drinking water for over 9 million residents. Runoff from the proposed Project drains into the Middle Branch and East Branch Reservoirs that are part of the Croton Watershed. The Croton Watershed provides unfiltered drinking water to approximately 900,000 people on an average daily basis and is the source of drinking water for upwards of 2.5 million people during drought or emergency conditions. The only treatment this water currently receives from reservoir to tap is disinfection through chlorination. The New York State Department of Environmental Conservation ("DEC") has classified the Middle Branch Reservoir as a class “A” water body and the East Branch Reservoir as a class “AA” water body. Therefore, pursuant to the state classification, the Middle Branch and East Branch Reservoirs are to be maintained at a very high quality – one that allows them to serve as a source of drinking water.

The Middle Branch and East Branch Reservoirs are also classified as "phosphorus restricted" basins by City DEP and were listed by the State DEC on its 1998 list of impaired water bodies pursuant to Section 303(d) of the Federal Clean Water Act. As a result, phosphorus levels in these water bodies must actually be reduced to achieve water quality goals. These water bodies have also been the subject of extraordinary and expensive efforts under the 1997 New York City Watershed Memorandum of Agreement to better control phosphorus and other pollutants. Moreover, these reservoirs are the subject of heightened protection criteria for phosphorus that was developed pursuant to the Clean Water Act -- known as the "total maximum daily load" ("TMDL") program. The large majority of phosphorus pollution entering the Middle Branch and East Branch Reservoirs stems from surface water runoff from existing development and new construction.

The detail of analysis, scope of alternatives, and stringency of mitigation measures presented in the draft EIS should reflect the sensitive location of the Project.

I. BACKGROUND CONSIDERATIONS.

The proposed project involves construction of 439,500 square feet of retail space, including a garden center and 2,079 parking spaces. The project would be constructed on a 94.94 acre parcel in both the Town of Patterson (79.54 acres) and the Town of Kent (15.4 acres). The proposed construction would disturb approximately 60 acres of forested land, converting it into 32.4 acres of impervious surfaces and landscaped lawns. By way of example, one acre is roughly equivalent in size to a football field including the end zones.

The proposed Project has the clear potential for significant adverse impacts on water resources. These include: construction related erosion (e.g., siltation from excavation); and significantly increased polluted runoff from additional impervious and less-pervious surfaces (e.g., fertilizers and pesticides from lawns; oil, grease and heavy metals from parking lots and turbidity from increased stormwater flow due to impervious surfaces).

II. ROLE OF SEQRA LEAD AGENCY

The proposal of a large development Project in a highly sensitive environmental area warrants the full use of the assessment and protection tools available under the State Environmental Quality Review Act (“SEQRA”). The Town of Patterson Planning Board, as the SEQRA lead agency for the Project, has the central role in fulfilling SEQRA’s environmentally protective purposes. The Town of Patterson Planning Board can and should retain the necessary scientific and technical experts (at the expense of the Project sponsor) as necessary to assist it in conducting this SEQRA review. The use of independent experts is important to lead agency efforts to effectively scrutinize the work of consultants paid by the Project’s sponsor, as well as to assure a full presentation of Project alternatives and mitigation measures.

The lead agency’s discretionary responsibilities include: deciding which environmental impacts are potentially significant so as to be assessed in the environmental impact statement; specifying the detail and required factual analysis (and methodology) that will be necessary for each environmental assessment; setting the range of alternatives to be evaluated and specifying the details of various alternative development scenarios (so as to make the choice among various alternatives a real one); determining the scope and detail of any cumulative and secondary impact analysis; independently approving the draft and final EIS as adequate or rejecting it as deficient; assessing comments on the draft EIS and formulating specific responses to all substantive questions and concerns; identifying necessary measures to avoid or mitigate adverse impacts to the maximum extent practicable; and issuing a findings statement that selects an alternative (from a range of potential alternatives) that minimizes adverse environmental impacts to the maximum extent practicable. The EIS process must be completed prior to any discretionary determination by a governmental entity to fund or authorize a specific project.

III. SPECIFIC COMMENTS

A. Alternatives.

A frequent defect in the draft EIS is a lack of adequate detail in the presentation of lower-build alternatives to the development proposed by the project sponsor. SEQRA allows the lead agency to require the draft EIS to contain sufficiently detailed reduced-build and reduced-impact alternatives so as to make the choice among alternatives a real one. The Town of Patterson Planning Board should carefully identify the alternatives to be developed and specify the level of detail required to adequately address potentially adverse environmental impacts to water quality. The developer’s preferred project should not be studied in detail while other alternatives are given only limited review. Any decision to reject a lower build alternative as not being feasible should be explained in detail. It is inappropriate for the Project sponsor to eliminate a lower build alternative simply because it does not fit in with all of its particular goals. Indeed, the lead agency can and should select an alternative that may even be objectionable to the project sponsor when warranted by the EIS. A standard component of the draft EIS, the no-build alternative, must also be thoroughly assessed to give a full sense of the adverse environmental impacts associated with the proposed Project and the development it will induce. All alternatives should be developed to an extent that “apple to apple” comparisons can be made between them by the lead agency. A draft EIS that mostly assesses the proposed Project to the exclusion of other lower build alternatives, such as the one described above, would be unbalanced and unacceptable.

We recommend that the project sponsor be required to develop in detail a lower build alternative that reduces impervious surfaces by 60%, keeps all development off slopes that exceed 15%, and which avoid all wetlands and their associated buffers.

The largest source of pollution in the Watershed is from “non-point” sources, otherwise known as polluted runoff. The volume of stormwater that would be generated by the proposed Project will be dependent, in large part, on the amount of impervious surface (i.e., roadways, roof tops, parking lots) present. In other words, the greater the horizontal expanse of the paved development and roof tops, the greater the volume of stormwater that will be generated. Additionally, the volume of stormwater that would be generated by the proposed development is also dependent on the amount and type of vegetation and soils on-site. We recommend that the applicant focus on reducing impervious area by presenting alternatives in the DEIS that are designed to eliminate this potential problem (e.g., stacked parking, multi-story buildings, etc.).

B. Stormwater.

1. Conduct a Complete Evaluation of Soil Conditions.

Examining site soils is an essential element of the effective evaluation of the impacts of polluted runoff. For example, some soils are particularly susceptible to erosion, whereas others tend to promote flooding, and still others are ill-suited to supporting buildings, roadways, and parking lots. We strongly recommend that the DEIS include the following information concerning the various soils located on the Project site and organized in understandable charts and maps with an appropriate narrative. The maps should include an overlay of proposed building and other disturbances.

(a). Map and Chart All Soils Employing the National Resources Conservation Service (“NRCS”) Putnam County Soils Codes.

(b). Provide a % and Acreage of each Soil Type that is to be Disturbed at the Project Site.

(c). Present the Slope (%) of al Soils: Slopes exceeding 15% are designated as “steep slopes” by the New York State erosion control guidance manual. Slopes in excess of 15% are considered too steep and deemed unsuitable for siting septic systems in New York by the New York State Department of Health. See 10 NYCRR Part 75, Appendix 75-A p. 4503). Slope influences the retention and movement of water, the potential for soil slippage, accelerated erosion, the ease with which machinery can be used and the engineering uses of the soil.

The slopes should be categorized as: 2 or 3 - 8%; 8 - 15%; 15 - 25%; and 25 - 35%; 35 - 45%; etc. to agree with the “Soil Survey of Putnam and Westchester Counties”.

(d). Hydrologic Soils Group: The NRCS has grouped soils into four distinct classes based on how they respond to water. The four classes are hydrologic soils group:

A: High Infiltration Rate (water “seeps” into the ground quickly)
B: Moderate Infiltration Rate
C: Slow Infiltration Rate
D: Very Slow Infiltration Rate (if the site is “flat” water is prone to form puddles, if the site is “hilly” the water will likely flow downhill)

(NRCS 2003 Part 618.35). Group A soils are often sandy, whereas Group D soils often have a high clay content or a restrictive layer (e.g., bedrock).

(e). Erosion Factor (Kf): Erosion is an important process that affects soil formation and may remove all or parts of the soils formed in natural landscapes. Evaluating the degree of erosion that takes place is important in assessing the health of the soil and in assessing the soil’s potential for different uses. Removing increasing amounts of soil alters various properties and capabilities of the soil. Soil erosion factors (Kf) were developed to quantify how susceptible very small soil particles (e.g., clay, fines, <2.0 millimeters) are to being detached from soil and rock by water. These factors are particularly important in the Watershed because detached clay particles suspended in water cause turbidity and adversely impact drinking water quality. The Kf soil erosion factor also accounts for freeze thaw cycles and predicts long term average soil loss. Kf erosion factors range from none (0.02) or slight to severe or very severe (0.49 in the northeastern US). The higher the Kf erosion factor the greater the probability that small particle erosion will occur. (NRCS 2003 Part 618.55).

(f). Runoff Class: The index surface “runoff class” refers to the loss of water from an area by flow over the land surface. Runoff classes can be estimated using soil slope and permeability. There are six runoff classes: negligible (N), very low (LV), low (L), medium (M), high (H), and very high (HV). (NRCS 2003 Part 618.49).

(h). Soil Interpretation Rating Guides: Soil Interpretation Rating Guides have been prepared by the NRCS and should be employed to assess a soil’s limitations for different uses. These soil ratings are defined in terms of severity such as “slight,” “moderate,” or
“severe.”

(i) Slight (Not limited): This rating is given to soils that have properties favorable for the use. The degree of limitation is minor and can be overcome easily. Good performance and low maintenance can be expected (NRCS 2003 Part 620.03).

(ii) Moderate (Somewhat limited): This rating is given to soils that have properties moderately favorable for the use. This degree of limitation can be overcome or modified by special planning, design, or maintenance. The expected performance of the structure or other planned use is somewhat less desirable than for soils rated slight. The needed measures usually increase the cost of establishing or maintaining the use, but the cost is generally not prohibitive.

(iii) Severe (Very limited): This rating is given to soils that have one or more properties unfavorable for the rated use. This degree of limitation generally requires major soil reclamation, special design, or intensive maintenance. Some of the soils, however, can be improved by reducing or removing the soil feature that limits use; but in most situations, it is difficult and costly to alter the soil or to design a structure so as to compensate for a severe degree of limitation. This rating does not imply that the soil cannot be adapted to a particular use, but rather that the cost of overcoming the limitation would be high.

Use of the soil interpretation rating guides in the planning and evaluation process
allow the user to identify and recommend site selection and plan measures that
minimize impacts on the soil resource (NCRS 2003 Part 620.05).

The information used to calculate these soil characteristics should also be available upon request to those reviewing the DEIS. The information should be an in electronic format as either CAD or GIS files: 1) soils data for the project site; and 2) building, road, parking lot, and all other impervious surface footprints for the project site. This information will be analyzed using GIS, which is why the data must be submitted in either GIS or CAD format and geo-referenced to a geographic coordinate system, such as UTM or Stateplane. The electronic data should be provided in the DEIS as separate files that are clearly distinguishable from any other CAD or GIS layers.

2. DEP and DEC Permit Approvals for Stormwater.

The Preliminary Draft Scoping Outline needs to inform the applicant that they need to comply with both DEP and DEC stormwater permit requirements. Due to the different approaches required by these two agencies to acquire permits, it would be prudent for the applicant to approach both agencies before preparing the DEIS to establish a plan of action that will comply with each. For example, for DEC approval, DEC SPDES General Permit for Stormwater Discharges from Construction Activities Permit No. GP-02-01 needs to be complied with.

The volume and content of runoff (i.e., sediments and contaminants) from the currently vegetated Project site should be fully calculated and described in the DEIS for comparison to the projected level of runoff for each studied alternative. Real data from other large development projects that have been constructed in this area should be obtained and presented for comparison. Contaminant levels and loads in the runoff (including phosphorus, turbidity, total suspended solids, pesticides, salts, and oils) should be quantitatively presented (i.e., hard numbers with backup calculations and clearly defined assumptions) for each alternative. In addition, the specific design, operation and long-term maintenance procedures for all stormwater collection and treatment should be addressed in detail the DEIS.

3. Need for a Fully Engineered Stormwater Pollution Prevention Plan.

Section III E. Of the Preliminary Draft Scope (“Surface Water Mitigation Measures”) only directs that requests a conceptual Stormwater Pollution Prevention Plan (SPPP) be presented. We strongly recommend, however, that the applicant submit a complete SPPP in the DEIS. The SPPP should among other things, fully engineer the flow of stormwater through the proposed Project. By an engineered plan we mean a specific blueprinted program based on actual site conditions, topography and calculated severe storm event flows that will, when implemented, act to infiltrate, direct, detain, and treat runoff so that contaminants do not reach the reservoirs. State-of-the-art methods should be employed throughout, as many other construction projects in the New York City Watershed have failed sending significant plumes of muddy runoff into reservoirs. An appendix to the DEIS should contain all engineering assumptions and calculations with respect to the SPPP.

The applicant should employ the guidance provided by two State publications when developing its SPPP New York State Stormwater Management Design Manual (August 2003) and New York Guidelines for Urban Erosion and Sediment Control (April 1997) – as well as other heightened design methods available in the scientific literature. We recommend that the applicant retain an expert technical consultant to undertake development of the SPPP. For example, to resolve a similar dispute, the New York State Department of Transportation agreed to retain a nationally respected stormwater consultant to design the SPPP for its project to rebuild a highway segment that traverses the Kensico Reservoir basin.

4. Methods and Criteria for Limiting Polluted Runoff.

The exact attributes of the SPPP need to be developed and certified by a qualified professional taking into account site specific conditions. This office, DEC, and DEP should be given an opportunity to review and comment upon the SPPP, and reject it as deficient. The following methods and criteria should be incorporated into the stormwater controls during the construction phase as SEQRA mitigation:

(i) Design the SPPP so that violations of state water quality standards are prevented under all conditions; particular attention needs to be given to the narrative water quality standards for turbidity and suspended solids, see 6 NYCRR § 703.2.

(ii) Water flowing from areas up-slope of construction must be fully diverted away or around exposed construction areas to limit erosion.

(iii) Controls for stormwater should be designed, at a minimum, for the detention or retention of the 10 year 24 hour storm for the Armonk or Westchester County Airport area during construction and before full re-vegetation. More stringent controls are fully reasonable. These controls should be presented and supported with specific engineering calculations in the SPPP.

(iv) Construction phasing is a highly important attribute of an effective SPPP. No more than three acres of soils that are not completely stabilized (e.g., revegetated, covered with jute matting, etc.) should exist at the site at any one time. All slopes over 8%, all soil piles, and lose fill areas should be covered immediately with a jute or synthetic mat or hydroseeded with a slurry containing a durable tacking agent. Stormwater controls and detention basins must be constructed before other construction excavations, except for those excavations necessary to construct the stormwater controls.

(v) Construction timing should be designed to avoid all excavation or clearing activities from October 15th to May 1st of the year; this avoids the most likely wet weather season and allows sufficient time for the complete re-vegetation of disturbed areas before cold weather. To the extent possible, construction through the most sensitive areas (such as streams, wetlands, and steep slopes) should be limited to portions of the summer that are historically the driest.

(vi) The applicant’s construction contract for the Project should not have any fiscal incentives or other monetary benefits with respect to an expedited work schedule. Protection of water quality through deliberate implementation of stormwater controls must be a contractual priority.

(vii) All surface water released from the construction site or from associated
stormwater controls must have levels of total phosphorus and turbidity that do not exceed levels in runoff from existing baseline conditions at the undisturbed site. Existing baseline total phosphorus and turbidity levels must be presented by the applicant in the SPPP.

(viii) The construction site must be assessed and mapped for clay and colloidal soils; construction upon such soils should be avoided if at all feasible and special precautions should be taken to limit the erosion of these soils. Suspended clay soils can pass through many erosion controls and remain suspended in water for over 6 months.

5. Post Construction Stormwater Controls.

Post construction stormwater controls should employ many of the attributes of the SPPP discussed above. However, the SPPP as it relates to the post-construction period should also contain the following:

(i) A detailed site re-vegetation and stabilization plan that will effectively re-establish vegetation.

(ii) Post construction stormwater controls should be designed to handle the 2 year 24 hour storm at a minimum. Engineering design criteria should be employed that assures the survival and routine operation of stormwater management devices after major (i.e., 100 year) storm events.

(iii) All wetlands (state, local, and federal) must be fully assessed and delineated. All wetlands, streams and adjacent buffer areas should be completely avoided.

(iv) The SPPP should identify methods that will be employed to relieve the soil compaction (with associated increased imperviousness) caused by the extensive use of heavy equipment along and upon the construction site. The goal should be to re-establish the soil percolation rates that existed prior to construction. Existing or baseline percolation rates must be presented by the applicant as part of the SPPP.

6. Compliance Assurance, Maintenance and Monitoring.

During all construction within the Watershed, the applicant should be required to employ a qualified professional engineer who will be responsible for assuring full compliance with the SPPP and State water quality standards. This engineer must be provided with immediate “stop work” authority in the event the SPPP is violated or other important deficiencies arise that pose a threat to water quality. We strongly recommend that this engineer, or another on-site inspector employed by the applicant, be a Certified Professional in Erosion and Sediment Control. In conformity with the State DEC General Permit for Stormwater, these individuals must monitor contractor adherence to the SPPP and provide weekly, certified, inspection reports that will identify any deficiencies, violations or stop work occurrences, and discuss corrective actions that were recommended and undertaken. Stormwater controls during construction and before complete revegetation must be thoroughly inspected each week and after each rain in excess of .5 inches.

The applicant should also be required to provide the technical staff of DEC, City DEP and the Attorney General’s Office with full site access to conduct inspections and to review the applicant’s self-monitoring reports. DEC technical staff must be provided with binding written authority to order the immediate halt of all work should DEC staff determine that a failure to adequately implement or maintain the SPPP has created a threat to water quality.

C. Fertilizers and Pesticides.

Lawns and landscaped areas generally involve the use of fertilizers and pesticides. Runoff from these areas can transport fertilizers and pesticides into nearby waterways. Fertilizers generally contain large amounts of the problematic nutrient phosphorus which can cause eutrophic conditions (algae blooms, etc.) in the reservoirs. The nearby Middle Branch and East Branch Reservoirs were listed as stressed by phosphorus on DEC’s Clean Water Act (“CWA”) § 303(d) list and have been the subject of a phosphorus reduction assessment pursuant to the CWA’s total maximum daily load” program. In fact, limiting phosphorus levels in the Watershed is one of the major aspects of the entire Watershed protection program. A key focus of the draft EIS should be upon mechanisms to prevent the discharge of any additional phosphorus above natural conditions.

The DEIS should contain a complete description of a state-of-the-art program to limit the use and application of fertilizers and pesticides. This program should provide details concerning staff training and re-training programs. “No spray” areas, including buffer zones for all waterways, should be clearly identified and posted. A program to assure that chemical application is undertaken under appropriate dry weather conditions should also be developed and presented. Beyond the modeling described in the draft scoping outline, real world case studies and a review of relevant literature should be undertaken and presented. The stormwater transport of fertilizers and pesticides should be fully discussed within the context of an overall stormwater control program. The use of organic fertilizers should be fully evaluated as these substances release phosphorus at a far slower rate relative to synthetic fertilizers and operate to build up the soil structure. In addition, all pesticide ingredients, including synergists and inerts, that are to be used on the site must be presented and discussed. Our office is particularly interested in “inert,” yet often highly problematic, ingredients contained in pesticides.

D. Induced Development and Secondary Impacts.

Induced growth or secondary impacts associated with the Project should be thoroughly evaluated in the draft EIS. A project of this magnitude will undoubtedly increase traffic along local roads. There will be an increase in vehicle trips, impervious surfaces, stormwater flows, construction, and waste water associated with this induced development – above and beyond those impacts directly associated with the proposed Project. All these impacts must be fully assessed and quantitatively presented for each alternative reviewed in the draft EIS so that a complete picture of the Project’s impacts will be revealed.

E. Mitigation.

The lead agency should assure that mitigation measures and best management practices identified in the environmental review process are presented in full detail for public critique. A vague commitment to employ “best management practices” or to develop mitigation in the future should be rejected. The EIS and the SEQRA findings statement should specifically commit to the implementation and maintenance of all identified mitigation measures. More importantly, the Town of Patterson Planning Board should assure that the mitigation is instituted and maintained in a legally enforceable manner. The Project sponsor should agree that all mitigation measures will be incorporated as enforceable conditions to permits as a predicate to the Project sponsor receiving any SEQRA approval. By making the detailed mitigation measures an enforceable attribute of required permits, it is far more likely that the mitigation will actually be undertaken and maintained in the future. Additionally, any supposed “non-development areas” identified in the EIS as a mitigation measure justifying other development should be permanently protected through deed restrictions or through a conservation easement enforceable by a third-party action. A legally binding mechanism must also be developed to assure the continuation of mitigation when, and if, the present Project sponsor sells the property.

Respectfully submitted,

James M. Tierney Charles Silver, Ph.D.
Watershed Inspector General Watershed Inspector General Scientist
Assistant Attorney General Environmental Protection Bureau
Environmental Protection Bureau Office of the Attorney General
Office of the Attorney General The Capitol
The Capitol Albany, New York 12224
Albany, New York 12224 (518) 473-6620
(518) 474-4843