Segmented Action, Formal/Public Scoping and the City of Kingston as Involved Agency by Rebecca Martin

I am pleased that the Town of Ulster has issued a positive declaration in SEQR on the proposed Niagara Bottling Company project. It is the correct, and in fact – the only – thing to do given the liklihood of numerous environmental impacts associated with a project such as this that must be looked at closely and with discretion.

There are three important points I’d like to hit upon as next steps for the process we are now currently embarking on.

First is to correct what is a Segmented Action in the Environmental Assessment Form.

The Action located in the Environmental Assessment Form crafted by the Chazen Companies on behalf of Niagara Bottling Company is incomplete. In it, only identified here is the facility build in the Town of Ulster. It does not include the water delivery via the City of Kingston and its Water Department from the Town of Woodstock which is a critical aspect of the proposal.

This is problematic because the incomplete Action as it was written does continue to turn up in things. In fact, I noticed that in the resolution for Lead Agency this evening that was passed, the incomplete Action language is used here as well.

When we gathered last month at the Town of Ulster’s Town Board meeting, we had the opportunity to speak to Peter Romano of the Chazen Companies. When the question about Segmentation arose, he assured us that what we were concerned about wasn’t Segmentation at all.

However, looking at the basic ‘test’ for segmentation in SEQR, it lists eight factors that agencies should consider. If the answer to just one of the questions would be yes, an agency should be concerned that segmentation is taking place. Those factors are: Purpose, Time, Location, Impacts, Ownership, Common Plan, Utility and Inducement. I counted at least four if not five of the eight without any question a ‘yes’. Therefore, I encourage all Involved and Interested Agencies to encourage Lead Agency to amend the Action so that it embodies all aspects of a proposed water bottling facility that include the site, water source and its delivery to the Tech City location and any other substantial items such as the disposal of 342,500 GPD of water or, 124,670,000 of water per year into the Lower Esopus Creek.

Second, to assure a formal and public scoping process.

Scoping is a next step here, and I request that the Lead Agency and project sponsor determine a formal and public scoping process.

According to SEQR, “A written scope of issues developed through public scoping process benefits the lead agency and the sponsor by providing explicit guidance as to what criteria will be used to determine whether a submitted draft EIS is adequate. The written scope provides a means of ensuring that significant topics have not been missed and that the level of analysis in the EIS satisfies standards established during the coping process.” Without formal scoping, the project sponsor ‘prepares a draft EIS based on comments from the involved agencies and issues identified in the positive declaration but without further written submissions or public input. A lead agency also risks not discovering issues or resources of local importance, or overlooking sources of information and local or site history if it does not use public scoping. Finally – without public scoping, the lead agency may fail to meet all involved agency interests.”

The Town of Ulster now has 60 days to accomplish a formal and public scoping process. Citizens do appreciate that you will be timely in getting this underway with enthusiasm to hear more from the tax-payers who will ultimately pay for a project such as Niagara through 10 years of tax abatements, PILOTs and additional public monies such as State grants (for example, the Consolidated Funding Application where the Mid-Hudson Economic Development Council will determine whether or not to award Niagara Bottling Company a grant for their facility build on December 10th of this year) coming through the area utilizing the new Start-Up NY program.

Finally, the City of Kingston as an Involved Agency in SEQR.

According to SEQR, ‘an agency is involved when the determination is made that the agency has or will have a discretionary decision to make regarding some aspect of the action.”

In light of a segmented Action where the water source and delivery was not included, the Kingston Water Department is still listed as an Involved Agency and therefore, voiced in on lead agency of the proposed Niagara Water Bottling SEQR process.

In a Will Serve Letter to Niagara Bottling Company that is signed by Water Department Superintendent Judy Hansen, Niagara Bottling company was in contact with the Water Department on April 15th, 2014. In an email, they outlined Niagara’s water demand for proposed project as being 1.75 MGD of Kingston’s municipal water source located at Cooper Lake. The consultant CDM Smith performed a demand analysis report identifying specific improvements to accomplish a ‘delivery’ in excess of 1 MGD. The preliminary estimate for the cost of the work, without a geotechnical investigation and assuming minimal rock removal was approximately $2M.

In the City of Kingston’s Charter in section C11-4 Powers, it states that “Said Board, with the ASSENT of the Common Council, may construct and maintain waterworks for supplying said city and its inhabitants with pure and wholesome water; exercise such powers as are necessary and proper to accomplish such purpose and shall proceed in the manner hereinafter prescribed.

In a letter written by Andy Zweben who is the City of Kingston’s Corporation Council, he concludes that ‘the proposed action of the Niagara Bottling Company does not include any bonding by the Water Department or the Construction by it of any capital improvements.”

This statement conflicts with the Engineering Analysis described in the Will Serve letter. In that light, there is more than enough evidence here to place in question the role of the City of Kingston – enough so that they must be listed as an Involved Agency as soon as possible – as construction improvements that relate directly to this project will require the Kingston Common Council’s oversight.

Thank you, and I will continue to be in touch.

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