By Matt Bennett

Judge Dubois' ruling, while lengthy and complex, is clearly written and quite instructive. I would recommend it to anyone who is interested in not only the issue at hand, but environmental law in general. The section addressing SEQRA (State Environmental Quality Review Act) issues is especially important. SEQRA is typically ignored by small towns in New York, largely, I think, because too few people, both inside and outside of government, understand it, yet it offers all of us the best and strongest environmental protections available.

I have attempted, in as few words as possible and to the best of my ability, to summarize and explain Judge Dubois' ruling. As cofounder and President of the Coalition for the Preservation of Rolling Greens (CPR) I have been intimately involved in every aspect of this case, and have consulted with CPR's attorney in the preparation of the following document. I am not, however, an attorney myself, and would like to apologize to Judge Dubois in advance if I have inadvertently mischaracterized any of her writings.

Background

Rolling Greens is a subdivision of about 85 houses located directly across from the Mahopac High School. The development has had problems of water supply for years. Last January, the Town of Carmel applied to the New York State Department of Environmental Conservation (DEC) for a permit to create a water district serving 42 existing homes and nine new houses to be built in conjunction with the district. This new development, Baldwin Estates, was to be the site of the district's wells.

Some of my neighbors and I, believing that the proposed water district was not a viable solution to a very real problem and that it would cause more problems than it would solve, banded together to oppose it. We formed CPR (CPRG in the judge's decision) and retained counsel, a hydrogeologist and an engineer. Concerned by the effect of pump tests of the proposed water district's wells on their own water supply, the owners of Stone Meadow Kennels on Baldwin Place Road (the Schraders) also retained counsel and a hydrogeologist. Based on material generated by CPRG and the Schraders, the DEC elected to have a hearing before granting the water permit. The first part of this hearing occurred on January 8-10 of this year and it, plus two rounds of subsequent correspondence, led to the following rulings.

Party Status

There were several questions about who should be allowed to be involved in the hearing. The Schraders questioned whether the Town of Carmel should be allowed to apply to the DEC for a water district permit without first forming the district. The judge said the town could indeed apply for the permit.

The town questioned whether CPRG should have standing in the hearing. The judge said yes. CPRG's attorney also amended its application to include the individual members as parties, and the judge agreed to that emendation.

The town also questioned whether the Schraders should have party status, stating that there would be no impact to their water supply. The judge disagreed and for that and other reasons also granted the Schraders party status.

Water Quality certification and Corps of Engineers review

The well site for the proposed Carmel Water District 13 is entirely within a wetland. The Army Corps of Engineers issues two types of permits for wetlands construction: national, which is granted more or less automatically, and individual, which is granted on a case-by-case basis. The amount of work to be done and the amount of wetland involved determine which type of permit is required. Similarly, if enough work is to be performed, the DEC is required to issue its own water quality certification. In addition, a wetland permit from the Town of Carmel (since expired), was necessary.

From information provided by the town, it is impossible to tell what permits may be needed. The judge ruled that the town must provide proposed locations of the pumphouse, tanks and pipelines for the district, as well as confirm the boundaries of the wetland.

Water Supply Permit Standards

As enumerated by the judge, these include: whether the project is justified by the public necessity; whether the applicant properly considered other sources of water; whether there will be an adequate water supply; whether there will be proper protection of the water supply and watershed; and whether the proposed project is "just and equitable."

Public necessity

The judge ruled that there is a need for a public water supply, but there is a question of whether there is a public need for this particular water supply. She states that the adjudication of other issues will be required before the issue of public necessity of this water supply can be resolved, and so the issue of public necessity is an issue for adjudication.

Other sources of water supply

Both the Schraders and CPRG questioned whether other potential sources of water supply had been adequately investigated. The judge ruled that "whether the Applicant (the Town of Carmel) properly considered other sources…that are or may become available is (an)…issue for adjudication at this hearing."

Adequacy of supply

Neither the Schraders nor CPRG believe that the proposed water district has a sufficient supply, and both offered expert testimony to support their claims. The town's consultant stated that "long-term use of the four (town) wells could result in adverse impacts…" The judge ruled that the "adequacy of the supply…is an issue for adjudication…"

Protection of water supply

Wells for a public water supply must be protected from pollution by provisions ideally including a buffer of at least 200 feet surrounding the wells. In the case of the wells in question, this buffer zone includes "Baldwin Place Road, … property across the road from the well field, the end of the proposed detention pond for Baldwin Estates, parts of the back yards of three lots in Baldwin Estates, the Schraders' well and a corner of the kennel building itself…" In addition, there is to be as yet undescribed construction possibly near the well site (see above). The judge ruled that: "Protection of the water supply, and the specific measures to be taken in preventing pollution of the ground or groundwater within 200 feet of each well, is an issue for adjudication." She also wants the Applicant to furnish a map showing features relevant to this issue and recommends that the parties then confer "regarding the proposed protection measures…"

"Just and equitable" standard

The judge found that this question overlapped with the "adequacy of supply" issue. Further, she stated that there is a "question of whether the project makes adequate provisions for the water supply needs of water users near but outside the proposed district." This includes private individuals, the Mahopac school district, and the Schraders' business. She suggests that issues of well monitoring and the establishment of thresholds for remediation may be resolved among the parties, but does find "a substantive and significant issue (the standard for adjudication) regarding whether the proposed project is just and equitable to all …, and in particular with regard to their present and future needs for sources of water supply."

SEQRA issues

The State Environmental Quality Review Act (SEQRA) requires the thorough evaluation of the potential environmental impacts of a proposed project. Last June, the DEC issued a negative declaration (meaning that the project would have no ill effects) under SEQRA for the proposed Carmel Water District 13. However, they stated that there would be no negative environmental effects because the permit would only be for the supply of water to 42 existing houses, not taking into account the nine new houses (Baldwin Estates) that would have to be built as a condition of the formation of this water district. Further, they relied on a negative declaration by the Carmel Planning Board for Baldwin Estates which had not taken into account possible impacts of the water district and its construction.

CPRG and the Schraders argued that the Planning Board's negative declaration was defective and that the DEC should declare lead agency (make itself the coordinating agency for review by all pertinent regulatory agencies) and conduct a coordinated review under SEQRA. Further, CPRG argued that, since the construction of Baldwin Woods (the 17-house development) had been linked (by the town, the developer, and the Putnam County Department of Health) to construction of the water district, Baldwin Woods should also be included in the coordinated review.

Judge Dubois found that the DEC's negative declaration was defective and would need to be redone. Further, she raised the prospect that the potential for the water district to cause "adverse impacts to a small number of nearby wells" could be a "significant adverse environmental impact," in which case an Environmental Impact Statement (EIS) would be required. (The EIS is a detailed and complex document that can take a year or more to prepare and can cost upwards of $100,000.) The judge stressed that although the additional review could be time-consuming, "it would be preferable to have a legally sound hearing process as opposed to a rapid process whose outcome may be overturned." She quoted a previous DEC decision: "…an invalid negative declaration cannot be cured during the subsequent permit process and its invalidity renders the entire proceeding a nullity."

The judge ruled that: " The SEQRA determination regarding the water supply application is remanded to the DEC Staff for a redetermination. The action whose environmental significance will need to be determined is the overall project which would be authorized by the water supply permit, including the work to be conducted on the Baldwin Estates site and the supply of water to Baldwin Estates. In addition, the redetermination will need to consider the possible addition of Baldwin Woods to the proposal and consider the cumulative impacts of Baldwin Woods with those of the 51 house water district." This means that every potential environmental impact and ramification of Baldwin Estates, Baldwin Woods, and the proposed water district is going to have to be considered and evaluated by the DEC before "a legally sound hearing process" can occur.

Appeals

Here Judge Dubois outlined the process by which the various parties could appeal her rulings. The Town of Carmel, CPRG and its individual members, and the Schraders have no plans to appeal. Therefore, it seems likely that the next step is the DEC's. They will have to determine which of the environmental issues raised by the judge are significant, and then conduct the appropriate SEQRA review. If necessary, an adjudicatory hearing will then be held.

Note

In her ruling, Judge Dubois also referred to the Critical Resource Waters designation made for New York's East of Hudson Watershed by Governor Pataki. If approved by the U.S. Army Corps of Engineers, this designation will require the Corps to conduct individual reviews of many projects in the area including, presumably, the combined Baldwin Estates/Baldwin Woods/Rolling Greens water district project. The public comment period on the governor's proposal ended on March 21, and the Corps should make its decision within the next few months. At that time it should be possible to determine if additional review by the Corps will be required.