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Letters to the Editor
As New York State Wetlands Chair, Sierra Club, the following are comments I submitted to the Department of Conservation on April 21, 2005 re the disturbance and or filling in of wetlands at the proposed Pleasant Meadows development in the Town of Lancaster, New York.
Charles D Cranston
NYSDEC Region 9 Headquarters
270 Michigan Ave
Buffalo, NY 14203
(716) 851-7165
r9dep@gw.dec.state.ny.us
Re: Pleasant Meadows, Lancaster mega-project # 9-1452-00246/00001
Dear Mr. Cranston,
As New York State Wetlands Chair for Sierra Club, I submit these comments for our organization in response to the public notice that was posted for the Pleasant Meadows mega-project in Lancaster, Erie County, NY. It is difficult to believe that Marrano Marc/Equity Corporation cannot avoid the LA-16 wetland and its protective buffer while developing this 271-acre project. This developer has broken the law recently on this very project. They should not be awarded for bad behavior by obtaining wetland and other permits requested for this project.
The Town of Lancaster (Town), as lead agency, appears to have given little importance to the environment in the SEQRA process they conducted for the Pleasant Meadows commercial/retail development. This is a massive project that proposes a residential subdivision consisting of 174 homes, 120 patio homes, 512 apartment or condo units, 10 office/retail buildings and a 50-acre park/nature preserve (on 50 acres they probably couldn’t develop anyway) on approximately 271 acres of land located in the Town. The project is located on the south side of Pleasant View Drive, east of Central Avenue, and immediately east of Lancaster School District property on Pleasant View Drive running south to the north side of Walden Avenue.
The wetland permitting process involves this sequence: 1) avoidance, 2) minimization, and as a last resort, 3) mitigation. Disturbance of wetlands is allowed only if avoidance is not possible and a different project site -- that does not impact wetlands -- cannot be located.
The developer is required to do alternative sites analysis. This developer and the Town of Lancaster appear, however, to have been interested in maximizing development of this land. We recommend that the developer eliminate the sprawling portions of this proposal that affect wetlands, waterways, and floodplains. There is plenty of land available in Western New York to accomplish this project’s goals without impacting water resources.
The impacts for this project in the draft environmental impact statement (DEIS) were listed as approximately: 0.69 acres to NYSDEC wetlands, 5.04 acres to NYSDEC wetland buffers, and 1.57 acres to federal wetlands that are not deemed “isolated”. The concept plan for the site includes a north-south spine road and several storm water retention/detention ponds.
Subsequent to the DEIS, the developer decided to impact more state and federal wetlands. The project site contains: NYS Freshwater Wetland LA-16 (Federal wetland 13/18), a Class II wetland; two additional wetland areas regulated by the U.S. Army Corps of Engineers; and Scajaquada Creek, a Class B stream. The concept plan for full development of the project will impact approximately 0.81 acre of Wetland LA-16 for construction of the spine road, installation of utilities and placement of fill for development of two commercial parcels. In addition, 5.02 acres within the 100 foot-wide regulated adjacent areas of Wetland LA-16 will be impacted for stormwater retention areas, spine road construction, utility installation and the development of the two commercial parcels. Other Department Permits/Approvals include a Protection of Water Permit for the spine road culvert crossing of Scajaquada Creek and Water Quality Certification pursuant to the Federal Clean Water Act for impacts associated with federal wetlands.
As mitigation for impacts to state and federal wetlands and state regulated wetland adjacent area, the project sponsor proposes the construction of two shallow wet-meadow/emergent marshes with a combined total of approximately 5.0 acres; creation of an upland buffer area/wildlife corridor connecting Scajaquada Creek and Wetland LA-16; and deeding over to the Town of Lancaster an approximately 42 acre area (containing the undisturbed portion of Wetland LA-16, its' regulated adjacent area and additional non-regulated upland areas) of the property for use as a passive recreational park. Preservation of existing wetlands will not result in “no net loss” of wetlands for this project. The spine road through the wetland is unnecessary.
The project site lies between two major streams, Ellicott Creek (to the North) and Scajaquada Creek (in the southern portion of the project site). It is apparent that the Walden Trace subdivision to the southwest was previously sited in a poor location as regards flooding potential. This proposed Pleasant Meadows project is likely to create additional flooding in the Walden Trace neighborhood. The applicant’s SDEIS did not provide a basic topographic map as provided here but it should have.
Considering the loss of 3.4+ acres of “isolated” wetlands on the Pleasant Meadows site, regulatory agencies should not permit ANY disturbances to LA-16 or its adjacent buffer.
Exactly how many residential lots in Pleasant Meadows will involve wetlands or hydric soils? An Erie County soil survey should have been included in this DSEIS. There is no easy way to determine this by reviewing this “conceptual” DSEIS that is full of confusing exhibits and innuendos. There were aerial photos lacking ‘north arrows’ or ‘scales of measurement’. The minimum information that each aerial photo should have provided was the name of major roads.
Will homeowners be warned, pre-purchase, that their new residences will be built in the 3.4 acres of so-called “isolated” wetlands that will not be mitigated on this site? There is no mitigation required for those impacts but that won’t remove hydric soils from future home sites in the isolated wetland areas that are to be developed. How will the proposed mitigation prevent residential foundation problems as have been seen in Amherst, when one part of a residence rests on a basement that lies on one soil layer, and additions to the home may rest on shallower soil layers-- creating differential settling rates for the different parts of the structure?
“Creation” of wetlands in the headwaters of Scajaquada Creek won’t prevent flooding. Scajaquada Creek flows from east to west across the site from an elevation of 718 feet to about 695 feet at the Walden Trace subdivision. How will detention basins uphill of the Walden Trace subdivision alleviate those residents’ existing flooding problems? Detention basins will pose dangers to residents and will not replace many forested wetland functions that will be lost. A man riding a snowmobile lost his life in a detention basin in the Town of Wheatfield recently.
The impacts depicted in the consultant’s wetland delineation must be rigorously scrutinized. Earth Dimensions may have “significantly underestimated the size of wetlands” and misinterpreted soils in TE/TW-15 in North Tonawanda. After review by federal experts of this same consultant’s study in North Tonawanda, the developer abandoned his project and sold his wetland property for preservation purposes. [Critiques by federal experts of the Earth Dimensions’ wetland delineation for the Klydel Wetland TE/TW-15 can be found in Appendix A.]
NYSDEC is to be highly praised for creating the LA-16 wetland in response to the original DEIS (roughly the green area, from east to west, in the center of the map on page 1 above). We believe it should be a Class I, rather than a Class II wetland. Under §664.5 Classification system of the NYS Freshwater Wetlands Act: A wetland shall be a Class I wetland if it has any of the following characteristic(s): (5) it is tributary to a body of water which could subject a substantially developed area to significant damage from flooding or from additional flooding should the wetland be modified, filled, or drained (664.6(d)(1)).
The proposed activities in LA-16 and its buffer should not be allowed to occur. New York State Freshwater Wetlands Permit Requirements Regulations (pursuant to Article 24 of the Environmental Conservation Law) states in Subdivision 663.4(d), PROCEDURAL REQUIREMENTS, that statewide minimum land-use regulations contained in subdivision 665.7(g) establish the compatibility categories to be used in conjunction with the different types of land-use activities to be conducted upon freshwater wetlands or adjacent areas. Under the category ‘Buildings’ in these NYS regulations, it is stated:
“Constructing buildings, accessory roads, and parking areas can have several effects on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction. Roofs and paved areas quickly shed rain where that rain previously had an opportunity to soak into the ground. This can result in more turbulent stream flow, more erosion and sedimentation, and higher water levels in surrounding areas, including in nearby wetlands”.
The effects of filling, grading, and draining are listed as follows:
“Generally, draining of wetlands lowers groundwater levels, may increase down-stream peak flows, and may decrease water storage capacity and downstream base flow. It may also cause changes in vegetation and water temperature, increased streambed scouring, and sediment deposition. Draining can totally destroy a wetland.
Filling decreases the number and size of wetlands, thereby decreasing their ability to collect runoff and prevent erosion and sediment deposition downstream. Certain fill materials may adversely affect water quality. Disposal of dredge material may result in erosion and cause turbidity and sediment deposition. Filling eliminates wetland habitat for fish and wildlife, may alter the water table and groundwater flow and adversely affect groundwater recharge, and can irreversibly destroy a wetland.
Grading a wetland or adjacent area can substantially alter surface water drainage and flow patterns, may temporarily increase erosion, and may eliminate fish and wildlife habitat. Clear-cutting removes the vegetative cover of wetlands and may reduce their ability to absorb water and serve as habitat. It may also cause soil erosion.
Dredging or excavation may increase water depth and remove wetland vegetation, thus altering the basic characteristics of, and perhaps destroying, wetlands. Fish and wildlife feeding or reproductive capacities may be altered, as may cover types, turbidity, sediment deposition, and erosion patterns.
Any of these activities can cause the permanent loss of benefits provided by wetlands, and may, in fact, destroy wetlands entirely.”
Constructing a residence or related structures or facilities in Freshwater Wetlands requires a permit and is considered to be a type (X) activity, i.e., a regulated activity that is “incompatible” with a wetland and its functions and benefits.
Constructing a residence or related structures or facilities in an Adjacent Area to a wetland also requires a permit and is considered to be a type (N) activity, i.e., a regulated activity that is usually incompatible with a wetland and its functions or benefits, although in some cases the proposed action may be insignificant enough to be compatible.
In 663.5, “Standards for Issuance of Permits and Letters of Permission”, part (d)(2), it is stated, “If the proposed activity cannot meet all three tests of compatibility or if it is identified as "X", incompatible, then, for a permit to be issued, the activity must meet each of the weighing standards listed in the chart in paragraph 663.5(e) for the classification of the wetland that would be affected by the proposed activity”.
The regulations stated above put in perspective the effects of development in and near wetlands. The following statement is made on page 3-11 of the DSEIS, “While development will exist on all four sides of the wetland and will decrease the amount of natural greenspace around the wetland, the majority of the proposed NYSDEC Freshwater Wetland LA-16 will remain undisturbed.” This interpretation is misleading! The construction of the spine road and this mega-project development itself that will surround LA-16 will certainly impair this wetland.
For example, the Klydel Wetland in North Tonawanda (TE/TW-15) is surrounded by development that includes apartment buildings and residences adjacent to it and a commercial strip across Meadow Drive from it. The North Tonawanda High School Environmental Awareness Club conducted a clean up in this wetland. In just one afternoon, the students pulled 24 old tires and over 50 huge bags of litter out of this wetland in the area adjacent to Meadow Drive. This area was certainly not yet cleaned up when 73 students finished that day.
On page 4-3 of the DSEIS, it stated that the current conceptual plan only has “impacts where absolutely necessary to access the site.” This was not a factual statement. The proposed spine road through the LA-16 wetland is not necessary as the project area can be accessed via Pleasant View Drive, south, to a point north of LA-16 and also can be accessed from Walden Avenue, north, to a point south of the LA-16 wetland. There is absolutely no reason to blaze into the wetland with a new road except for the convenience of the Town or the developer.
Walden Trace subdivision, adjacent to the Pleasant Meadows project site, currently has problems with: 1) flooding, 2) the non-responsiveness of the Town of Lancaster to residents’ flooding concerns, and, 3) water coming “out” of sewers during flooding events instead of being conveyed into the storm sewers. The Town of Lancaster has the audacity to blame residents for flooding by accusing them of not keeping “blockages” out of the Town’s sewers-- as detailed by a resident at a Sierra Club meeting earlier this week. This is not the only municipality that has flooding problems near wetlands as I have experienced this same situation in North Tonawanda with overwhelmed storm sewers, near, and adjacent to, wetland TE/TW-15.
Extensive housing is planned for Pleasant Meadows, creating problems for new and existing homeowners adjacent to, or in, wetlands. Does the proposed mitigation properly address potential flooding that may occur to adjoining property owners? Some of the homes that have developed foundation problems in Amherst (that are being studied by the US Army Corps of Engineers in a yet unfinished analysis) were built in some of the same hydric soils that can be found on this project site in Lancaster, i.e., Canandaigua, Cayuga, Churchville, Lakemont, and Ovid soils. [See Appendix B for the costs of building homes in wetlands and/or hydric soils from public comments submitted by the NYS Office of the Attorney General to the US EPA.]
There are no disclosure laws that warn homeowners, pre-purchase, that their homes are to be built in wetlands. Sierra Club requests that regulatory agencies and the Town include pre-notification to future owners whose homes will be built in wetlands. Whether or not the US Army Corps of Engineers takes jurisdiction over all of the wetlands (under 12.4 acres in size), the Town of Lancaster must recognize that the Town should be held liable for any damages to homes built in wetlands since the Town will be approving the building of homes-- both in its capacity as Lead Agency in this proceeding and through building permits approved in the future.
The National Research Council (NRC) in a study released in June 2001 stated that, “Whenever possible, restoration of natural wetlands should be chosen over creation of new ones”, furthermore, “Whether mitigation is carried out by the permit holder or a third party, restoration or creation of a wetland should occur simultaneously, or prior to, the filling of the natural wetland and according to established design criteria that are better monitored and enforced.”
“To ensure long-term stewardship similar to that accorded to other publicly valued assets, like national parks, the permit holder or third party should provide a stewardship organization, i.e., the Western New York Land Conservancy or Audubon Society, with an easement on, or title to, the mitigation site and funds for the long-term monitoring and maintenance. It may take 20 years or more for some restored or new wetlands to achieve functional goals”, the NRC noted.
Donation or preservation of another wetland is not acceptable alone as mitigation for the loss of the project wetland, as this still constitutes a net loss in wetland acreage and values. The overall mitigation plan must provide for a minimum of acreage provided through restored and/or created wetlands to replace those wetlands lost and the mitigation wetlands must provide the same functions as the wetlands to be disturbed. This conceptual plan is inadequate in this regard.
The conservation easement should not be held by the Town of Lancaster for the wetland areas to be preserved/created on this project site. The Town of Amherst and the Village of Hamburg demonstrated how fickle town leaders can be when it comes to preserving land in perpetuity.
Will regulatory agencies have the personnel to track whether a conservation easement already exists on any of the proposed mitigation site? Who will check to make sure that a conservation easement is properly recorded with the deed at the courthouse for the mitigation and preservation sites? Will the applicant give sufficient funds to conservation organizations in perpetuity for legal problems that might arise and to keep the wetlands viable?
In summary, the following conditions should be met for approved mitigation projects:
1) The cost of the entire mitigation process must be borne by the applicant, and long-term responsibilities and evaluation criteria for the success of the mitigation project should be specified in permit conditions. These conditions must be enforced by contract and performance bonds to ensure completion of the mitigation project.
2) No mitigation plan should be considered unless regulatory agencies have committed the requisite staff, expertise, and resources for long-term monitoring and enforcement. These responsibilities may be delegated to a third party under contract and accountable to regulatory agencies, but funded entirely by the applicant.
3) Mitigation should address all temporary and long-term negative impacts of the development project -- direct, indirect, cumulative, and synergistic.
4) Mitigation activities generally should be confined to restoration of degraded wetlands or previously functioning wetlands, provided that sites are available within the vicinity of the impacted wetlands that meet the needs of a comprehensive restoration plan. Preference should be given to restoration of the same wetland type within the same hydrologic system (drainage basin) as that to be filled, and should take into consideration the most critical and endangered wetland types in the local region.
5) Creation of wetlands in upland areas is generally undesirable, particularly at the current level of scientific and technical understanding. Lacking a soil map for this project site and considering that many wetland species are listed as existing in areas where mitigation wetlands will be “created”, one wonders if the mitigation areas already are actually “wetlands” and not “uplands”.
6) Based on detailed hydrological and biological assessment of the wetland and its surrounding watershed, an adequate buffer should be provided to assure the future protection of the restored or created wetland. At least 100 feet should be recommended. Access to, and uses of restored wetlands, should be restricted as a "temporal buffer" until regeneration is assured. If the wetland is located adjacent to water, a buffer area should extend at least as far in the adjacent shallow water.
7) The mitigation should be completed and shown to be at least 75% successful before work may begin on the Pleasant Meadows project. At a minimum, the mitigation project must have been implemented to a point where reasonable assurance of success has been established.
8) The created wetlands must be protected by legal mechanisms, such as a special zoning, deed restrictions, and easements to ensure their continued existence and subject to the legal protections of jurisdictional wetlands.
9) Mitigation must result in a net gain in wetland acreage and in the full panoply of wetland functions (e.g., trading of flood control at one site for habitat improvements at another cannot be counted as a net gain in wetland functions).
10) Complete, consistent, and accurate documentation of the development and the mitigation projects must be collected and retained by regulatory agencies as part of the permanent public record. This is particularly important because of the experimental nature of wetland restoration and creation. This record should include details of the site evaluation before and after the development disturbance (inspection reports, maps, photographs, and analyses), all biological, hydrological, and engineering designs and plans, site monitoring data, and evaluations of the development and mitigation projects by other federal, state, and local agencies. In addition, names, addresses, telephone numbers, and affiliations of all personal that have a working knowledge of the projects should be retained permanently.
Elected officials in other communities scrutinize developers who claim their projects “pay for themselves and then some” by conducting “Cost of Community Service” analysis. These studies assess current conditions based on existing budgets and real dollars. They provide hindsight from past land use decisions. Costs are associated into these categories: residential development, commercial/industrial development, and farmland/forestland/open space.
Studies conducted in more than 70 communities show that residential land uses are a net drain on local taxpayers for it costs local governments more to provide services to homeowners than residential landowners pay in property taxes. Recent studies in New York State found that for every $1.00 received in tax revenues, the cost of community services ranged from $1.05 (in Kinderhook) to $1.88 (in Reading) for residential land use, as compared a range of 17 cents (in Amenia) to 74 cents (in Fishkill) for open space land use.
The costs for local services (schools, police and fire, roads, solid waste and sewer treatment, etc.) outweigh the increased tax revenue produced by new residential development. Targeting development through careful land use planning and redevelopment of areas already served by existing infrastructure, thereby protecting open space, makes economic sense and helps revitalize urban areas. Communities that have little commercial/industrial base to mitigate the costs of servicing new residential developments make substantial tax increases to existing residents inevitable.
In 1998, the break-even value of a new home in Pittsford (a suburb of Rochester) was determined to be more than $300,000. Break-even occurs when the tax revenue gained from the addition of a house equals the cost of community services attributable to a new home. Their analysis showed that protection of open space, including purchase of development rights, would cost taxpayers less per year for support of community services than a full build-out of the town.
The applicant should be denied all permits affecting water resources. This company did significant destruction of the environment on this project site with no permits whatsoever. Send a message to this applicant and to the development community as a whole that actions like those that were taken here will NOT be rewarded.
Very truly yours,
Elizabeth S. Kaszubski
New York State Wetlands Chair, Sierra Club
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