Debunking the DEC's Decision

The DEC recently granted Kiryas Joel lead agency status in the environmental review process for the 507 acre annexation attempt that Kiryas Joel itself has requested and certainly wishes to see go through. So much for an unbiased review! 

Here are the reasons the DEC gave for their decision, followed by the reasons why I feel it is absurd.

As stated on the DEC's websites by DEC Commissioner Joseph Martens:

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

  • whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance;
  • which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  • which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action."

A. First Criterion 

"The first criterion asks whether potential impacts from the proposed action are primarily of statewide, regional, or local significance. Both disputing agencies acknowledge that the annexation proposal would likely cause impacts of only local significance. Local environmental impacts will likely consist of, among other things, increases and changes to traffic patterns, dust, noise, and a demand for sewer and water conveyance."

Let's stop here for a moment. Since the DEC is only considering petitions for lead agency from the Town Board of Monroe (elected by KJ Block Vote) and the Village of Kiryas Joel (that wishes to annex the land), why on earth would I put any stock into what these two agencies deem the environmental impacts would be? Why wouldn't the DEC themselves determine what these impacts would be? Aren't they a great deal more qualified to do so?  Also, we read - the "local environmental impacts will likely consist of, among other things, increases and changes to traffic patterns, dust, noise, and a demand for sewer and water conveyance." As if these were not bad enough, there are plenty more harsh realities that a 507 acre annexation will bring about, like 50,000+ more humans living in high-density housing. How about a severe increase in pollution and decrease in air quality? How about deforestation and the removal of wildlife habitat and wetlands? This habitat includes two federally listed endangered species  - the Indiana Bat and Dwarf Wedgemussel. There will also be a severe risk of flash floods due to replacing grass and soil that absorb water, with impervious surfaces like concrete and asphalt that do not. This will lead to polluting our streams and rivers with dirty storm drain water.  Yikes.

DEC Commissioner Martens Continues on his first criterion:

"Based on the Village's Comprehensive Plan (Comprehensive Plan for the Village of Kiryas Joel, December 1999), if the annexation is approved, it is anticipated that environmental impacts that may occur to the properties will be from high density build out. Compact, high density development is more likely to result in a community that is more walk-able, bike-able and more conducive to mass transit while reducing vehicle miles traveled and generation of greenhouse gas emissions from combustion. As a general rule, high density development, appropriately sited, is considered more environmentally sustainable and conserves open space."

If the choices were 50,000 people moving to the region and living in compact high-density housing, or 50,000 people moving to the region and living more spread out, then perhaps Commissioner Marten's point holds water. However, that is not the case here. Without the annexation the population will not increase by 50,000, so therefore you must consider the increase in greenhouse gases and vehicle miles traveled brought on by this significant population increase. You must consider the fact that the 507 acres will be re-zoned for high density housing, and subsequently increase the population far beyond what would happen should this land be built under its current rural residential zoning. What's more, our rural region does not have the public infrastructure setup to handle this population increase, so his reference to mass transit does not seem to hold water either.  The DEC is hiding behind a very general comment here, instead of contrasting in full the ramifications of a massive human migration to the area versus a marginal population increase should the land not be re-zoned. 

B. Second Criterion

"The second criterion considers which agency has the broadest governmental powers for investigation of the impact(s) of the proposed actions.

Both the Town's and Village's comprehensive plans recognize the constraints imposed by water and sewer needs. A striking difference between the two plans is how each community chooses to address these constraints.

If annexation is approved, land use jurisdiction over the annexed parcels of land would fall to the Village. Land use decisions will be guided by the Village's comprehensive Plan and implementing land use regulations. Development will be more dependent on walking and mass transit as a major mode of transportation, with the existing road system basically consisting of local and collector streets.

I conclude that the second criterion favors the Village Board being selected to serve as lead agency for this review. This is based on the fact that the Village has an incrementally greater breath of authority as the provider of water and sewer services and will continue to have a role in land use decisions effecting properties that are the subject of the annexation petition whether or not the annexation is approved (see Commissioner's lead agency decision in Town Board of the Town of North Greenbush, supra). At the same time, both agencies have a similar breadth of jurisdiction as it relates to the annexation decision and zoning."

First off, the comprehensive plans being considered are from 1999, Kiryas Joel, and 2008, Town of Monroe. Things have changed considerably since then, and if the Monroe Town Board actually wished to see this land developed in a sustainable way, in a way that would benefit all of those who live in the area, the comprehensive plan could be amended per NY Town Law: Section 272-A:Town Comprehensive Plan, rule 7.

Secondly, when the DEC Commissioner Martens refers to KJ having an "incrementally greater [breadth] of authority as the provider of water and sewer services," he is saying this because there are agreements in place for KJ to provide water to two developments within the proposed annexation (Vintage Vista and Forest Edge). These are only agreements, and no sewer or water is currently being provided. Also, the only ways the Village of KJ can provide sewer and water to the annexed area is by building a pipeline to the NYC aqueduct tap in New Windsor from KJ, which is not yet complete since KJ ran out of money, and by building a second pipeline from the Harriman Waste Water Facility up to New Windsor, where the waste will be processed and flushed into the Hudson River. This second pipeline, by the way, will be funded by Orange County taxpayers. What's more, KJ will be required to have a backup reserve water supply should they ever complete the pipeline, which is why they are attempting to tap into wells in Woodbury and Cornwall NY, which unfortunately cannot sustain both the annexed land and the residents of these towns. So please tell me how again does the Village of KJ solely have the ability to provide sewer and water to the annexed land? It seems more like a Village that will rely on neighboring towns to fulfill their water demands and also needs taxpayer money to build a second pipeline so they can annex land into their village and add 50,000 more people to the region. This does not sound like KJ has an "incrementally greater [breadth] of authority as the provider of water and sewer services." It sounds as though KJ has no ability to provide water and sewer to the potentially annexed land without the help of others.

C. Third Criterion

"The third criterion asks which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

Both parties to this dispute have argued that they possess the capability to conduct a SEQR review on large and potentially complicated projects. The Village Board has organized a team of consultants to assist it with the SEQR review for this annexation. Nonetheless, either party has a similar ability to acquire consultants to assist in an environmental review.

I find, therefore, that this criterion favors neither the Village Board nor the Town Board to serve in the role of lead agency."

The DEC conveniently leaves out of their criteria the plethora of EPA and DEC violations and penalties imposed on the Village of KJ (see below). When these are taken into consideration nobody would honestly determine that KJ can lead a proper environmental review, let alone lead this review in a more coherent and professional manner than The Town of Monroe who has led several successful environmental reviews. Kiryas Joel has notoriously harmed the environment and looked the other way.  Here are a few of the more recent violations:

  • "On March 20 and 21, 2013, the EPA and the NYS DEC conducted an Audit of the Village. Based on the Audit findings, the EPA found the Village failed to comply with CWA (Clean Water Act). Subsequently, the Village continued to fail to comply with the CWA and on November 22, 2013,the EPA issued the Village an administrative compliance order for violations of CWA, 33 U.S.C.§1311(a); CWA, 33 U.S.C.§1342."

 

  • "Appellate Division, Second Department finds the Village’s SEQRA review of the pipeline failed to comply with law.
    • The Village did not “fully identify the nature and extent of all of the wetlands that would be disturbed or affected by the construction of the proposed water pipeline, how those wetlands would be disturbed,and how such disturbance, if any, would affect the salutary flood control, pollution absorption, groundwater recharge, and habitat function of those wetlands;”
    • "Neither the DEIS nor the FEIS fully identified the location,nature, or extent of the bodies of surface water into which wastewater from the proposed treatment plant would be discharged, and which State classes and standards of quality and purity apply to those water bodies;”
    • “Nor did the DEIS or the FEIS adequately identify how much effluent would be discharged into those bodies of water over what periods of time, what the nature of the effluent might be, and what the effect upon those bodies of water are likely to be;”“The DEIS and the FEIS were [also] rendered inadequate by the absence of a site-specific and design-specific phase 1B archaeological study;” 
    • “The DEIS and the FEIS provided no demographic analysis or projections with respect to the effect of the availability of a steady and stable supply of potable water on population movement into or out of the Village.” 844 N.Y.S.2d at 61-62."

 

  • "November 2013 - DEC fines Village of KJ for Wetlands Violation, filling and grading without a permit."

 

  • "November 2014 - Village of KJ is cited for a violation by the DEC. Mechanical screen and pump station at poultry plant has been out of service since June 2014, allowing solid waste to pass through." 

 

Kiryas Joel should never have been granted lead-agency status for the SEQRA process. All the criteria provided by the DEC have significant holes.

 

Preserve Hudson Valley

 

You can read Commissioner Marten's criteria in full here